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Max Weber 



ECONOMY 
AND 






SOCIETY '«•»• i 



r+.-K 
Y.3*. 



AN OUTLINE OF INTERPRETIVE 'SOCIOLOGY 



Edited by Guenther Roth 
and Ckus Wittich 



University of California Press 
Berkeley • Lofe v Angeles • London 



University of California Press, Berkeley and Los Angeles. California 

University of California Press, Ltd., London, England 

This printing, Copyright © 1978 by The Regents of the University of California 

1st printing, Copyright © 1968 by Bedminster Press Incorporated, New York. 

All rights reserved. No part of this book may be reproduced or transmitted in any form 

or by any means, electronic or mechanical, including photocopying, recording, or by any 

information storage and retrieval system, without permission in writing from the publishers. 

Library of Congress Catalog Card Number; 74-81443 
ISBN; 0-520-02824-4 (cloth) 
0-510-03500-3 (paper) 

Printed in the United States of America 

2 3 4 5 6 7 8 9 

Economy and Society is a translation of Max Weber, Wirtschaft und Gesellsckaft. 
Grundriss der verstehenden Soziologie, based on the 4th German edition, Johannes 
Winckelmann (ed.), Tubingen; J. C. B. Mohr (Paul Siebeck), 1956, pp. 1-550, 
559-822, as revised in the 1964 paperback edition (Kfiln-Berlin: Kiepenheuer & 
Witsch), with appendices from Max Weber, Gesammelte Aufsatze zw Wissen- 
schaftslehre, 2nd rev. edition, Johannes Winckelmann (ed,), Tubingen; J. C. B. 
Mohr (Paul Siebeck), 1951, pp. 441-467 (selected passages), and Max Weber, 
Gesammelte polttische Schriften, and expanded edition, Johannes Winckelmann (ed.), 
Tubingen; J. C. B. Mohr (Paul Siebeck), 195S, pp. 294-394. 

The exclusive license to make this English edition has been granted to the University 
of California Press by the German holder of rights, J. C. B. Mohr (Paul Siebeck), 
Tubingen. 

The English text includes (with revisions and with addition of notes) material 
previously published and copyrighted by these publishers; 

Beacon Press: 

Ephraim Fischoff, trans., The Sociology of Religion (Boston: Beacon Press, 1963), 
pp. r-274. Copyright © 1963 by Beacon Press. Reprinted by arrangement with 
Beacon Press. 

Oxford University Press: 

Hans Gerth and C- Wright Mills, trans, and eds., From Max Weber: Essays in 
Sociology (New York; Oxford University Press, 1946), pp. ^9-244, 253-262. Copy- 
right 1946 by Oxford University Press, Inc. British Commonwealth rights by Jloutledge 
and Kegan Paul Ltd. Reprinted by permission. 

The Free Press of Glencoe: 

Ferdinand Kolegar, trans., "The Household Community" and "Ethnic Groups," in 
Talcott Parsons et al., eds., Theories of Society (New York: The Free Press of Glencoe, 
1961)1 vol. r, pp. 296-298, 302-309, Copyright © 1961 by The Free Press of Glencoe. 
Reprinted by permission. 

Talcott Parsons, ed. (A. M. Henderson and T. Parsons, trans.), The Theory of Social 
and Economic Organization (New York: The Free Press of Glencoe, 1964; originally 
published by Oxford University Press, 1947), pp. 87-423. Copyright 1947 by The 
Free Press of Glencoe. Reprinted by permission. 

Harvard University Press: 

Max Rhein stein, ed. (Edward Shils and Max Rheinstein, trans.), Max Weber on Law 
in Economy and Society (20th Century Legal Philosophy Series, Vol. VI; Cam- 
bridge, Mass.; Harvard University Press, 1954), pp. 1 1-348. Copyright, 1954 by the 
President and Fellows of Harvard College. Reprinted by permission. 

Correspondence about these sections of the English translation should be directed to the 
above publishers. See editors' preface for details about their location in this edition. 



Translators: EPHRAIM FISCHOFF 
HANS GERTH 
A. M. HENDERSON 
FERDINAND KOLEGAR 
C. WRIGHT MILLS 
TALCOTT PARSONS, ~ 
MAX RHEINSTEIN 
GUENTHER ROTH 
EDWARD SHILS 
CLAUS W1TTICH 



SUMMARY CONTENTS 



LIST OF ABBREVIATIONS xxv 

VOLUME i 

PREFACE TO THE 1978 RE-ISSUE xtox 

PREFACE xxxi 

INTRODUCTION by Guenther Roth xxxiii 

PART ONE: CONCEPTUAL EXPOSITION 

I. Basic Sociological Terms 3 
II. Sociological Categories of Economic Action 63 

III. The Types of Legitimate Domination 112 

IV, Status Groups and Classes 302 



PART TWO: THE ECONOMY AND THE- ARENA OF 
NORMATIVE AND D£ FACTO ROWERS 

I. The Economy and Social Norms 311 
II. The Economic Relationships of Organized Groups 339 i 

III. Household, Neighborhood and Kin Group 356 

IV, Household, Enterprise and Oikos 370 \ 
V. Ethnic Groups 385 t 

VI. Religious Groups (The Sociology of Religion) 399 
VII. The Market: Its Impersonality and Ethic (Fragment) 635 



VOLUME 2 

VIII. Economy and Law (The Sociology of Law) 
IX. Political Communities 901 
X. Domination and Legitimacy 
XI. Bureaucracy 956 



641 



941 



[v] 



V I SUMMARY CONTENTS 



XII. Patriaidialism and Patrimonialism 1006 

XIII. Feudalism, Standestaat and Patrimonialism 1070 

XIV. Charisma and Its Transformation mi 
XV. Political and Hierocratic Domination 11 58 

XVI. The City (Non-Legitimate Domination!) 121 2 

APPENDICES 

I. Types of Social Action and Groups 1375 
II. Parliament and Government in a Reconstructed Germany 1 38 1 

INDEX - 

Scholars tit 
Historical Names v 
Subjects xi 



mt 



ANALYTICAL CONTENTS 

LIST OF ABBREVIATIONS xxv 

VOLUME i 

PREFACE TO THE 1978 RE-ISSUE xxix 

PREFACE xxxi 

INTRODUCTION by Guenther Roth xxxiii 

1. A Claim xxxiii 

2. Sociological Theory, Comparative Study and Historical Explanation xxxv 

3. The Legal Forms of Medieval Trading Enterprises xl 

4. Economic and Political Power in Ancient Germanic History xlii ^ 

5. The Roman Empire and Imperial Germany xlvi 

6. The Economic Theory of Antiquity 1 

7. A Political Typology of Antiquity liv 

8. Weber's Vision of the Future and His Academic Politics Ivii 

9. The Planning of Economy and Society brii 

10. The Structure of Economy and Society lxvi 

I. PART TWO: THE EARLIER PART lxvii 

Ch. I: The Economy and Social Norms — On Stammler lxvii 

Ch. II: On Marx, Michels and Sombart Ixix 

Chs. III-V: The Relatively Universal Groups Ixxiii 

Ch. VI: The Sociology of Religion Ixxvi 

Ch. VII: The Market, Its Impersonality and Ethic lxxx 

Ch. VIII : The Sociology of Law bood 

Ch. IX: Political Community and State lxxxiv 

Chs. X-XVI: The Sociology of Domination Ixxxviii 

(a) The Theory of Modern Democracy xcj 

(b) The Dimensions of Rulership xriii 
Cc) The Terminology of Domination xciv 

(d) The City: Usurpation and Revolution xcvii 

II. PART ONE: THE LATER PART C 

11. Weber's Political Writings civ 

12. On Editing and Translating Economy and Society cvii 

13. Acknowledgements ex 

[vii] 



VIII ANALYTICAL CONTENTS 

Pan One: CONCEPTUAL EXPOSITION 

Chapter I 
BASIC SOCIOLOGICAL TERMS 3 

Prefatory Note 3 
1 . The Definitions of Sociology and of Social Action 4 

a. Methodological Foundations 4 

b. Social Action 22 

-. Types of Social Action 24 

3. The Concept of Social Relationship 26 

4. Types of Action Orientation: Usage, Custom, Self-Interest 29 

5. Legitimate Order 31 

6. Types of Legitimate Order: Convention and Law 33 

7. Bases of Legitimacy: Tradition, Faith, Enactment 36 

8. Conflict, Competition, Selection 38 

9. Communal and Associative Relationships 40 

10. Open and Closed Relationships 43 

11. The Imputation of Social Action: Representation, and Mutual 
Responsibility 46 

1 2. The Organization 48 

13. Consensual and Imposed Order in Organizations 50 

14. Administrative and Regulative Order 51 

15. Enterprise, Formal Organization, Voluntary and Compulsory 
Association 52 

16. Power and Domination 53 

17. Political and Hierocratic Organizations 54 

Notes ;6 

Chapter 11 
SOCIOLOGICAL CATEGORIES QF ECONOMIC ACTION 63 

Prefatory Note 63 

1. The Concept of Economic Action 63 

2. The Concept of Utility 68 

3. Modes of the Economic Orientation of Action 69 

4. Typical Measures of Rational Economic Action 7.1 

5. Types of Economic Organizations 74 

6. Media of Exchange, Means of Payment, Money 75 

7. The Primary Consequences of the Use of Money. Credit 80 

8. The Market 82 

9. Formal and Substantive Rationality of Economic Action 85 

10. The Rationality of Monetary Accounting.' Management anc> Budgeting 86 

1 1 . The Concept and Types of Profit-Making. The Role of Capital 90 

12. Calculations in Kind 100 

j 3. Substantive Conditions of Formal Rationality in a Money Economy 107 



Analytical Contents I X 

14. Market Economies and Planned Economies 109 

1 5 . Types of Economic Division of Labor 114 

16. Types of the Technical Division of Labor 118 

17. Types of the Technical Division of Labor — (.Continued') 120 

1 8. Social Aspects of the Division of Labor 1 22 

19. Social Aspects of the Division of Labor — (Continued') 12; 

20. Social Aspects of the Division of Labor: The Appropriation of the 
-Material Means of Production 130 

21. Social Aspects of the Division of Labor: The Appropriation of 
Managerial Functions 136 

22. The Expropriation of Workers from the Means of Production 1 3 7 

23. The Expropriation of Workers from the Means. of Production 
— (.Continued) 139 

24. The Concept of Occupation and Types of Occupational Structure 140 
24a. The Principal Forms of Appropriation and of Market Relationship 144 

25. Conditions Underlying the Cakulability of the Productivity of Labor 1 50 

26. Forms of Communism 153 

27. Capital Goods and Capital Accounting 1 54 ■ 

28. The Concept of Trade and Its Principal Forms 156 

29. The Concept of Trade and Its Principal Forms — (Continued) 1 57 
29a. The Concept of Trade and Its Principal Forms — (Concluded) 1 59 

30. The Conditions of Maximum Formal Rationality of Capital Accounting 161 

3 1 . The Principal Modes of Capitalistic Orientation of Profit-Making 1 64 

32. The Monetary System of the Modern State and the Different Kinds of 
Money: Currency Money 166 

33. Restricted Money 174 

34. Note Money 176 

35. The Formal and Substantive Validity of Money 178 

36. Methods and Aims of Monetary Policy 180 

36a. Excursus: A Critical Note on the "State Theory of Money" 184 

37. The Non-Monetary Significance of Political Bodies for the Economic 
Order 193 

38. The Financing of Political Bodies 194 

39. Repercussions of Public Financing on Private Economic Activity 199 

40. The Influence of Ecopjroic Factors on the Formation of Organizations 201 

41. The Mainspring of Economic Activity 202 

Notes 206 



Chapter III , 

*" <t 
THE TYPES OF LEGITIMATE DOMINATION 212 

I, THE BASIS OF LEGITIMACY 212 

i. Domination and Legitimacy 212 

2. The Three Pure Types of Authority 215 

U. LEGAL AUTHORITY WITH A BUREAUCRATIC ADMINISTRATIVE 

STAFF 217 

3. Legal Authority: The Pure Type 217 

4. Legal Authority; The Pure Type — (Continued) 220 

5. Monocratic Bureaucracy 223 



X ANALYTICAL CONTENTS 

Hi. TRADITIONAL AUTHORITY 226 

6. The Pure Type 226 

7 The Pure Type— (Continued) 228 

7 a. Gerontocracy, PatriarchaMsm and Patrimonialism 231 

8 Patrimonial Maintenance: Benefices and Fiefs 235 

9 Estate-Type Domination and Its Division of Powers 23b 
9 a. Traditional Domination and the Economy 237 

iv, CHARISMATIC AUTHORITY 24I 

10. Charismatic Authority and Charismatic Community 241 

V. THE ROUTINIZATION OP CHAHISMA 246 

1 1 . The Rise of the Charismatic Community and the Problem of 

Succession 246 . 

12 Types of Appropriation by the Charismatic btatt 249 

r 2a. Status Honor and the Legitimation of Authority 25 1 

Vt. FEUDALISM 255 

jzb Occidental Feudahsm and Its Conflict with Patrimoniahsm 255 

1 2c. Prebendal Feudalism and Other VarianK 259 

,3. Combinations of the Different Types of Authority 262 

VM..THB TRANSFORMATION OF CHARISMA IN A DEMOCRATIC 
DIRECTION 266 
,4. Democratic Legitimacy, Plebiscitary Leadership and Elected 
Officialdom 266 

■ viii. COLLBGIALITY AND THE DIVISION OF POWERS VfX 

15 Types ofColfcgiality and of the Division of Powers 271 

16 The Functionally Specific Division of Powers 282 

I;! The St^7the1political Separation of Powers to the Economy 283 

tX. PARTIES 284 

-18. Definition and Characteristics 284 

X DIRECT DEMOCRACY AND REPRESENTATIVE ADMINISTRATION 28 9 

10. The Conditions of Direct Democracy and of Administration by 

Notables 289 
20. Administration by Notables 290 

M. REPRESENTATION 2£2 

21 The Principal Forms and Characteristics 292 

22'. Representation by the Agents of Interest Groups 297 

Notes 299 



Chapter IV 
STATUS GROUPS AND CLASSES 



302 



Class Situation and Class Types 302 

Property Classes 303 

Commercial Classes 304 

Social Class 305 

Status and Status Group (Stand) 305 

Notes 307 



Analytical Contents 



XI 



Part Two: THE ECONOMY AND THE ARENA 
OF NORMATIVE AND DE FACTO POWERS 



Chapter 1 
THE ECONOMY AND SOCIAL NORMS 31 1 

1 . Legal Order and Economic Order 311 

a. The Sociological Concept of Law 311 

b. State Law and Extra-State Law 316 

2. Law, Convention, and Custom 319 

a. Significance of Custom in the Formation of Law 319 

b. Change Through Inspiration and Empathy 321 

c. Borderline Zones Between Convention, Custom, and Law 313 

3. Excursus in Response to Rudolf Stammler 325 

4. Summary of the Most General Relations Between Law and Economy 333 

Notes 337 






Chapter 11 
THE ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS 



339 



t. 



Economic Action and Economically Active Groups 339 

Open and Closed Economic Relationships 341 

Group Structures and Economic Interests: Monopolist versus 

Expansionist Tendencies 344 

Five Types of Want Satisfaction by Economically Active Groups 

Effects of Want Satisfaction and Taxation on Capitalism and 

Mercantilism 351 

Notes 3J4 



348 



Chapter III 
HOUSEHOLD, NEIGHBORHOOD AND KIN CROUP 

1. The Household; Familial, Capitalistic and Communistic Solidarity 356 
». The Neighborhood: An Unsentimental Economic Brotherhood 360 

3. The Regulation of Sexual Relations in the Household 363 

4. The Kin Group and Its Economic Effects on the Household 365 

Notes 369 



356 



Chapter IV 

HOUSEHOLD, ENTERPRISE AND OIKOS 

^ I. The Impact of Economic, Military and Political Groups on joint 
Property Law and Succession in the Household 370 



370 



XII ANALYTICAL CONTENTS 

2. The Disintegration of the Household: The Rise of the Calculative 
Spirit and of the Modern Capitalist Enterprise 375 

3. Tli e A! terna rive Development: The Oikos 381 

Notes 384 \ 



Chapter V 

ETHNIC GROUPS 3 8 5 

1. "Race" Membership 385 ' 

2. The Relief in Common Ethnicity: Its Multiple Social Origins and 
Theoretical Ambiguities 387 

3. Tribe and Political Community: The Disutility of the Notion of 
"Ethnic Group" 393 

4. Nationality and Cultural Prestige 395 

Notes 398 

Chapter VI 
RELIGIOUS GROUPS QTHE SOCIOLOGY OF RELIGION') 399 

I, THE ORIGINS OF RELIGION 399 

i . The Original This-Worldly Orientation of Religious and Magical 

Action 399 
a. The Belief in Spirits, Demons, and the Soul 401 

3. Naturalism and Symbolism 403 

4. Pantheon and Functional Gods 407 

i. Ancestor Cult and the Priesthood of the Family Head 41 1 

6. Political and Local Gods 41a 

7. Universalism and Monotheism in Relation to Everyday Religious Needs 
and Political Organization 415 

Notes 4*o 

it. MAGIC AND REUCION 422 

: . ,\l.!!;k-3l Coercion versus Supplication, Prayer and Sacrifice 422 

. 1 ho Differentiation of Priests from, Magicians 415 

'. Pic-airtions to Success and Failure of Gods and Demons 427 

.). }.:iiu,it Deities and Increasing Demands Upon Them 429 

■>. :\!;iy'..;tl Origins of Religious Ethics and the Rationalization of Taboo 432 

fi. Talnjo Norms: Totemism and Commensalism 433 

7. ( ';istc Taboo, Vocational Caste Ethics, and Capitalism 435 

3. Prom Magical Ethics to Conscience, Sin and Salvation 437 

\otcs 439 

Hi. TH^ prophet 439 

1. Prophet versus Priest and Magician 439 

2. Prophet and Lawgiver 442 

3. Prophet and teacher of Ethics 444 

4. Myiiagogue and Teacher 446 

5. Fthioil and Exemplary Prophecy 447 ~ 

6. 1 lit- Nature of Prophetic Revelation; The World As a Meaningful 
1 utahty 450 

Notes 



Analytical Contents XIII 

iv. THE CONGREGATION BETWEEN PROPHET AND PRIEST 452 

1. The Congregation: The Permanent Association of Laymen 452 

2. Canonical Writings, Dogmas and Scriptural Religion 457 

3. Preaching and Pastoral Care as Results of Prophetic Religion 464 

Notes 467 

V. THE RELIGIOUS PROPENSITIES OF PEASANTRY, NOBILITY 
AND BOURGEOISIE 468 

i . Peasant Religion and Its Ideological Glorification 468 

2. Aristocratic lrreligion versus Warring for the Faith 47 2 

3. Bureaucratic lrreligion 476 

4. Bourgeois Religiosity and Economic Rationalism 477 

Notes 480 

VI, THE RELIGION OF NON-PRIVILEGED STRATA 48 1 

i , The Craftsmen's Inclination Toward Congregational and Salvatktt 
Religion 481 > 

2. The Religious Disinclinations of Slaves, Day Laborers and the Modem 

Proletariat 484 

3. The Devolution of Salvation Religion from Privileged to 
N on -Privileged Strata 486 

4. The Religious Equality of Women Among Disprivileged Strata 488 

5. The Differential Function of Salvation Religion for Higher and Lower 
Strata: Legitimation versus Compensation 490 

6. Pariah People and Ressentiment: Judaism versus Hinduism 492 

Notes 499 

VH. INTELLBCTUALISM, INTELLECTUALS, AND SALVATION 
RELIGION 500 

1. Priests and Monks as Intellectualist Elaborators of Religion 50a 

2. High-Status Intellectuals as Religious Innovators 502 

3. Political Decline of Privileged Strata and Escapism of Intellectuals 503 

4. The Religious Impact of Proletarian, Petty-Bourgeois and Pariah 
Intellectual ism 507 

;. The Intellectual ism of Higher- and Lower-Ranking Strata in Ancient 

Judaism 508 

6. The Predominance of Anti-Intellectualist Currents in Early 
Christianity 510 

7. Elite and Mass Intellectualism in Medieval Christianity 513 

8. Modern Intellectual Status Groups and Secular Salvation Ideologies 515 

Notes 5 1 7 

Vlti. THEODICY, SALVATION, AND REBIRTH 5 18 

i. Theodicy and Eschatology 518 

2. Predestination and Providence 522 

3. Other Solutions of Theodicy: Dualism and the Transmigration of . 
the Soul 523 

4. Salvation: This-Worldly and Other-Worldly 516 

Notes 529 



^^^^^mam 



XIV ANALYTICAL CONTENTS 

tX. SALVATION THROUGH THE BELIEVER'S EFFORTS 529 

i. Salvation Through Ritual 529 

2. Salvation Through Good Works 531 

3. Salvation Through Self -Perfection 534 

4. The Certainty ofGrace and the Religious Virtuosi 538 

Notes 541 

X. ASCETICISM, MYSTICISM AND SALVATION 54 1 

i . Asceticism : World- Rejecting or Inner-Worldly 54 1 

2, Mysticism versus Asceticism 544 

3. The Decisive Differences Between Oriental and Occidental Salvation 551 

Notes 556 

Xi. SOTERIOLOGY OR SALVATION FROM OUTSIDE 5J7 

i. Salvation Through the Savior's Incarnation and Through 
Institutional Grace 557 

2. Salvation Through Faith Alone and Its Anti-Intellectual Consequences 563 

3. Salvation Through Belief in Predestination 572 

Notes 576 

Xti. RELIGIOUS ETHICS AND THE WORLD: ECONOMICS 576 

i. Worldly Virtues and the Ethics of Ultimate Ends 576 

2. Familial Piety, Neighborly Help, and Compensation 579 

3. Alms-Giving, Charity, and the Protection ot the Weak 581 

4. Religious Ethics, Economic Rationality and the Issue of Usury 583 

Notes 589 

Mil. RELIGIOUS ETHICS AND THE WORLD: POLITICS 590 

i . From Political Subordination to the Anti-Political Rejection 
of the World 590 

2. Tensions and Compromises Between Ethics and Politics 593 

3, Natural Law and Vocational Ethics 597 

Notes 60 1 

*»V. RELIGIOUS ETHICS AND THE WORLD: SEXUALITY AND ART 6o2 

i. Orgy versus Chastity 602 

2. The Religious Status of Marriage and of Women 604 

3. The Tensions between Ethical Religion and Art 607 

Notes 610 

XV. THE GREAT RELIGIONS AND THE WORLD 6ll 

i. Judaism and Capitalism 61 1 

2. Jewish Rationalism versus Puritan Asceticism 61 ; 

3. The This-Worldliness of Islam and Its Economic Ethics 623 

4. The Other-Worldliness of Buddhism and Its Economic Consequences 627 

5. Jesus' Indifference Toward the World 630 

Notes 634 




.'^i*£j&"&ix-v--L.\ 



*>**t-*i' i- r-^*± 



Analytical Contents X V 

Chapter VII 
THE MARKET: ITS IMPERSONALITY AND ETHIC (Fragment) 63; 
Notes 640 



VOLUME 2 



Chapter V1U 
ECONOMY AND LAW (SOCIOLOGY OF LAW) 641 

». FIELDS OF SUBSTANTIVE LAW 64 1 

i. Public Law and Private Law 641 

2. Right-Granting Law and Reglementation 644 

3. "Government" and "Administration" 644 

4. Criminal Law and Private Law 647 

5. Tort and Crime 649 

6. Imperium 651 

7. Limitation of Power and Separation of Powers 652 

8. Substantive Law and Procedure 653 

9. The Categories of Legal Thought 654 

Notes 658 

if. FORMS OF CREATION OV RIGHTS 666 

i, Jjjgical Categories of "Legal Propositions" — Liberties and Powers — 

Freedom of Contract 666 
i. Development of Freedom of Contract — "Status Contracts" and 

"Purposive Contracts"— The Historical Origin of the Purposive 

CfMitracts 668 

3. Institutions Auxiliary to Actionable Contract: Agency; Assignment; 
Negotiable Instruments 681 

4. Limitationsof Freedomof Contract 683 

j. Fxi-msion of the Effect of a Contract Beyond Its Parties— 
"Special Law" 694 

6. Associational Contracts— Juristic Personality 705 

7. Freedom and Coercion 729 ^ t 

Notes 732 

ill. EMERGENCE AND CRHATION OP LEGAL NORMS 753 

i , The Emergence of New Legal Norms— Theories of Customary 
Law Insufficient as Explanations 753 



XVI ANALYTICAL CONTENTS 

%. The Role of Party Practices in the Emergence and Development 
of Lega! Norms 754 

3. From Irrational Adjudication to the Emergence of Judge-Made Law 758 

4. Development of New Law Through Imposition from Above 760 
J. Approaches to Legislation 765 

6, The Role of the Law Prophets and of the Folk Justice of the 
Germanic Assembly 768 

7. The Role of Law Specialists 775 , \ 

Notes 776 

IV. THE £.EGAL HONORATIORES AND THE TYPES OF 
LEGAL THOUGHT 784 

i. Empirical Legal Training: Law as a "Craft" 785 

2. Academic Legal Training: Lawas a "Science "—Origins 
in Sacred Law 789 

3. Legal Honoratiores and the Influence of Roman Law 792 

Notes 802 

V. FORMAL AND SUBSTANTIVE RATIONALIZATION — THEOCRATIC 
AND SECULAR LAW 809 

i . The General Conditions of Legal Formalism 809 

2. The Substantive Rationalization of Sacred Law 815 

3. Indian Law 816 

4. Chinese Law 818 

5. Islamic Law 818 

6. Persian Law 8z2 

7. Jewish Law 823 

8. Canon Law 8a8 

Notes 83 1 

VI. IMPERIUM AND PATRIMONIAL ENACTMENT: 
THE CODIFICATIONS 839 

i. Imperium 839 

2. The Driving Forces Behind Codification 848 

3. The Reception of Roman Law and the Development of Modern 
Legal Logic 852 

4. Types of Patrimonial Codification 856 

Notes 859 

Vit. THE FORMAL QUALITIES OF REVOLUTIONARY LAW- 
NATURAL LAW 865 

1 . The French Civil Code 865 

2. Natural Law as the Normative Standard of Positive Law 866 

3. The Origins of Modern Natural Law 868 

4. Transformation of Formal into Substantive Natural Law 868 

5. Class Relations in Natural Law Ideology 871 

6. Practical Significance and Disintegration of Natural Law 873 

7. Legal Positivism and the Legal Profession 875 

Notes 876 • ' 



Analytical Contents XVII 

Viii. "THE FORMAL QUALITIES OF MODERN LAW 880 

i. Particularism in Modem Law 880 

2. The Anti-Formalistic Tendencies of Modern Legal Development 881 

3. Contemporary Anglo-American Law 889 

4. Lay Justice and Corporative Tendencies in the Modern Legal 
Profession 892 

. Notes 895 



Chapter IX 
POLITICAL COMMUNITIES *V , 901 

1. Nature and "Legitimacy" of Territorial Political Organizations 901 

2. Stages in the Formation of Political Association 904 

3. Power Prestige and the "Great Powers" 910 

4. The Economic Foundations of "Imperialism" 913 

5. The Nation 921 

6. The Distribution of Power Within the Political 
Community: Class, Status, Party 926 

a. Economically Determined Power and the Status Order 926 
» b. Determination of Class Situation by Market Situation 927 

c. Social Action Flowing from Class Interest 928 

d. Types of Class Struggle 930 

b. Status Honor 932 

p. Ethnic Segregation and Caste 933 

c Status Privileges 935 

h. Economic Conditions and Effects of Status Stratification 936 

1. Parties 938 

Notes 939 



Chapter X 
DOMINATION AND LEGITIMACY 94 , 

1. Domination by Economic Power and by Authority 941 

2. Direct Democracy and Rule by Notables 948 

„ 3- Organizational Structure and the Bases of Legitimate Authority 952 

Notes 954 



A V I I I ANALYTICAL CONTENTS 

Chapter XI 

BUREAUCRACY , 

956 

i. Characteristics of Modern Bureaucracy 956 

2. The Position of the Official Within and Outside of Bureaucracy 958 

I. Office Holding As a Vocation 958 

II. The Social Position of the Official 959 

a. Social Esteem and Status Convention 959 

b. Appointment versus Election: Consecjuences for Expertise 960 

c. Tenure and the Inverse Relationship Between Judicial 
Independence and Social Prestige 962 

b. Rank As the Basis of Regular Salary 963 
b. Fixed Career Lines and Status Rigidity 963 

3. Monetary and Financial Presuppositions of Bureaucracy 963 
a. Excursus on Tax-Farming 965 

. b. Office Purchase, Prebendal and Feudal Administration 966 

c. Excursus on the Superiority of Status Incentives over 
Physical Coercion 967 

d. Summary 968 

4. The Quantitative Development of Administrative Tasks 969 
Excursus- oa the Degree of Bureaucratization in 

Historical Empire Formations 969 

5. Qualitative Changes of Administrative Tasks: The Impact of 
Cultural, Economic and Technological Developments 971 

6. The Technical Superiority of Bureaucratic Organization over 
Administration by Notables 973 

a. Excursus on Kadi Justice, Common Law and Roman Law 976 

b. Bureaucratic Objectivity, Raison d'Etat and Popular Will 978 

7. The Concentration of the Means of Administration 980 
a. The Bureaucratization of the Army by the State and by 

Private Capitalism 980 
B. The Concentration of Resources in Other Spheres, Including 
the University 982 

8. The Leveling of Social Differences 983 

a. Administrative Democratization 983 

b. Mass Parties and the Bureaucratic Consequences of 
Democratization 984 

c. Excursus: Historical Examples of "Passive Democratization" 985 

d. Economic and Political Motives Behind "Passive 
Democratization" 986 

9. The Objective and Subjective Bases of Bureaucratic Perpetuity 987 
o. The Indeterminate Economic Consequences of Bureaucratization 989 

11. The Power Position of the Bureaucracy 990 

a. The Political Irrelevance of Functional Indispensability 991 

b. Administrative Secrecv 992 

c. The Ruler's Dependence on the Bureaucracy 993 

12. Excursus on Collegiate Bodies and Interest Croups 994 

13. Bureaucracy and Education 998 

a. Educational Specialization, Degree Hunting and Status Seeking 998 



10 



Analytical Contents XIX 

b. Excursus on the "Cultivated Man" iooi 
14. Conclusion 1002 

Notes 1 003 

Chapter XU 
PATRIARCH ALISM AND PATRIMONIALISM 1006 

1. The Nature and Origin of Patriarchal Domination 1006 
1. Domination by Honoratiores and Pure Patriarchalism 1 009 

3. Patrimonial Domination 1010 

4. The Patrimonial State 1013 

5. Power Resources: Patrimonial and Non-Patrimonial Armies 1015 

6. Patrimonial Domination and Traditional Legitimacy 1020 

7 Patrimonial Satisfaction of Public Wants. Liturgy and Collective 
Responsibility. Compulsory Associations. 1022 

8. Patrimonial Offices 1025 

9. Patrimonial versus Bureaucratic Officialdom 1028 

10. -The Maintenance of Patrimonial Officials. Benefices in Kind and 
s in Fees 163 1 

1 1 . Decentralized and Typified Administration As a Consequence of 
Appropriation and Monopolization 1038 

1 2. Defenses of the Patrimonial State Against Disintegration 1 042 

13. Ancient Egypt 1044 

14. The Chinese Empire 1047 

15. Decentralized Patrimonial Domination: Satrapies and Divisional 
Principalities io;i 

16. Patrimonial Rulers versus Local Lords 1055 

17. The English Administration by Notables, the Gentry's Justices 
of the Peace, and the Evolution of the "Gentleman" 1059 

18. Tsarist Patrimonial ism 1064 

19. Patrimonial ism and Status Honor 1068 

Notes 1069 . 



Chapter XIII 
FEUDALISM, STANDESTAAT AND PATRIMONIALISM 1070 

1 . The Nature of Fiefs and Types of Feudal Relationships 1070 

2. Fiefs and Benefices 1073 

3- The Military Origin of Feudalism 1077 

4. Feudal Legitimation 1078 

5. The Feudal Separation of Powers and Its Typification 1082 

6. The Standestaat and the Transition from Feudalism to Bureaucracy 1085 

7. Patrimonial Officialdom 1088 

8. The indeterminate Economic Preconditions of Patrimonialism 
and Feudalism 1090 

9. The Impact of Trade on the Development of Patrimonialism 1092 
1 o. The Stabilizing Influence of Patrimonialism and Feudalism 

Upon the Economy 1094 



X X ANALYTICAL CONTENTS 

ii. Monopolism and Mercantilism 1097 

12. The Formation and Distribution of Wealth under Feudalism 1099 

13. Patrimonial Monopoly and Capitalist Privilege J102 

1 4. Ethos and Style of Life 1 1 04 

Notes 1 1 09 

Chapter XIV 
CHARISMA AND ITS TRANSFORMATIONS ' mi 

'(. THE NATURE AND IMPACT OF CHARISMA I I I I 

1 . The Sociological Nature of Charismatic Authority 1 1 1 1 ' 

2. Foundations and Instability of Charismatic Authority 1 114 

3. The Revolutionary Nature of Charisma 1 1 1 5 

4. Range of Effectiveness 1117 

5. The Social Structure of Charismatic Domination j i 19 

6. The Communist Want Satisfaction oF the Charismatic Community 1 1 19 

it. THE GENESIS AND TRANSFORMATION OP CHARISMATIC 
AUTHORITY I 121 

1. The Routinization of Charisma 1121 

2. The Selection of Leaders and the Designation of Successors 1 123 

3. Charismatic Acclamation 11 25 

4. The Transition to Democratic Suffrage 1127 

5. The Meaning of Election and Representation 1 ja8 

6. Excursus on Party Control by Charismatic Leaders, Notables and" 
Bureaucrats 1 130 

7. Charisma and the Persistent Forms of Domination 1 1 33 

8. The Depersonalization of Charisma r Lineage Charisma, "Clan State" 
and Primogeniture 1 135 

9. Office Charisma 1 1 39 

10. Charismatic Kingship 1141 

11. Charismatic Education 1143 

12. The Plutocratic Acquisition of Charisma 1 14; 

13. The Charismatic Legitimation of the Existing Order 1146 

Hi, DISCIPLINE AND CHARISMA II48 

i. The Meaning of Discipline 1 148 

2. The Origins of Discipline in War 1 1 50 

3. The Discipline of Large- Scale Economic Organizations 1 1 55 

Notes 1 1 56 

Chapter XV 
POLITICAL AND HIEROCRAT1C DOMINATION 1158 

1. Charismatic Legitimation: Rulers versus Priests 1 1 ;8 

2. Hierocracy, Theocracy and Caesaropapism 1 159 

3. The Church 1 163 

4. f lierocratic Reglementation of Conduct and Opposition to Personal 
Charisma 1 164 

5. The Hierocratic Ambivalence Toward Asceticism and Monastieism 1 166 



Analytical Contents XXI 

6. The Religious-Charismatic and the Rational Achievements of 
Moftasticism 1168 

7. The Uses of Monasticism for Caesaropapism and Hierocracy 1 1 70 

8. Compromises Between Political and Hierocratie Power 1 1 73 

9. The Social Preconditions of Hierocratie Domination and of Religiosity 1 1 77 

10. The Impact of Hierccracy on Economic Development 1181 

a. The Accumulation of Church Lands and Secular Opposition 1181 

b. Hierocratie and Bourgeois Trading and Craft Interests 1 183 

c. Hierocratie and Charismatic Ethics Versus Non- Ethical Capitalism 1185 
D. The Ban on Usury, the Just Price, and the Downgrading of 

Secular Vocational Ethics 1 1 88 
t. Hierocratie Rationalization and the Uniqueness of Occidental 
Culture 1 192 

1 1. Hierocracy in the Age of Capitalism and of Bourgeois Democracy r 193 

12. The Reformation and Its Impact on Economic Life 1 196 

a. The Political and Religious Causes of the Religious Split 1 196 

b. Lutheranism 1197 

C. Ethics and Church in Calvinism 1 198 
j 3. Hierocracy and Economic Ethos in Judaism 1 200 

a. Excursus on Interpretations of the Judaic Economic Ethos 1 202 
v b. Judaism and Capitalism 1203 
14. Sect, Church and Democracy 1204 

Notts I2IO 



Chapter XVI 
THE CITY (NON LEGITIMATE DOMINATION') 1212 

t. CONCEPTS AM) CATEGORHiS OF THE CITY ]21i 

i. The Economic Concept of the City: The Market Settlement 121 2 

2. *i hree Types: T he "Consumer City," the "Producer City," the 
"Merchant City" 1215 

3. Relation of the City to Agriculture 1217 

4. The "Urban Economy" as a Stage of Economic Development 1 2 1 8 

5. The Politico-Administrative Concept of the City 1 22c 

6. Fortress and Garrison 1221 

7. The City as a Fusion of Fortress and Market 1 223 

8. The "Commune" and the "Burgher ": A Survey 1 226 
a. Features of the Occidental Commune i 226 

B. Lack of Communal Features in the Orient 1 226 
c. Pre-Communal Patrician Cities— Mecca 1231 

Notes 1234 

H. THE OCCIDENTAL CITY 1236 

1. Character of Urban Landownership and Legal Status of Persons 1236 

2. The Rise of the City as a Confraternity i 24 1 

3. A Prerequisite for Con fraternization : Dissolution of Clan Ties 1 243 

4. Extra-Urban Associations in the Ancient and Medieval City 1244 

5. The Sworn Confraternization in the Occident: Legal and Political 
Consequences 1 248 

6. The caniurationes in Italy 1251 



XXII ANALYTICAL CONTENTS 

7. The confratentitates in the Germanic North 1256 

8. The Significance of Urban Military Autonomy in the Occident 1260 
Notes 1262 

Hi. THE PATRICIAN CITY IN THE MIDDLE ACES 
AND IN ANTIQUITY 1266 

1. The Nature of Patrician City Rule 1266 

2. The Monopolisrically Closed Rule of the Nobili in Venice 1 268 

3. Patrician Rule in Other Italian Communes: The Absence of 
Monopolist Closure, and the Institution of the Podesta 1 273 

4. English City Oligarchies and Their Constraint by the Royal 
Administration 1276 

5. Rule of the Council-Patriciate and of the Crafts in Northern Europe 1 28 1 

6. Family- Charisma tic Kingdoms in Antiquity 1282 

7- The Ancient Patrician City as a Coastal Setdement of Warriors 1 285 

8. Ancient ancLMedieval Patrician Cities: Contrasts and Similarities 1 290 

9. Economic Character of the Ancient and Medieval Patriciate 1 292 
Notes 1 296 

IV. THE PLEBEIAN CITY I 30 1 

1. The Destruction of Patrician Rule Through the Sworn Confraternity 1301 

2. The Revolutionary Character of the Popolo as a Non -Legitimate 
Political Association 1 302 

3. The Distribution of Power Among the Status Groups of the Medieval 
Italian City 1 304 

4. Ancient Parallels: Plebs and Tribune in Rome 1 308 

5. Ancient Parallels: Demos and Ephors in Sparta 1 309 

6. Stages and Consequences of Democratization in Greece 1 3 1 1 

a. Differential Voting Rights 131 1 

b. The Rise of the Compulsory Territorial Organization and of 
Territorial Legislation 1312 

c. The Replacement of Notables by Democratic Functionaries 13 14 

7. Illegitimate Rulership: The Ancient Tyrannis 1315 

8. Illegitimate Rulership: The Medieval Signoria 1317 

9. The Pacification of the Burghers and the Legitimation of the Signoria 1 3 1 9 
10. Urban Autonomy, Capitalism and Patrimonial Bureaucracy: 

A Summary 1322 

a. Political Autonomy 1323 

b. Autonomous Law Creation 1325 

c. Autocephaly 1326 

t>. Taxing Autonomy 1327 

E. Market Rights and Autonomous Urban Economic Policy 1 328 

f. Attitude Toward Non-Citizen Strata 1331 

c The City and the Church 1333 

Notes 1335 

V. ANCIENT AND MEDIEVAL DEMOCRACY 1 339 

i. Origin of the Ancient Lower Class: Debtors and Slaves 1340 

2. Constituencies of the City: Ancient Territorial Units versus 
Medieval Craft Associations 1 343 

3. Excursus on Athenian versus Roman Constituencies 1 348 

4. Economic Policies and Military Interests 1 349 



Analytical Contents XXIII 

5. Serfs, Clients and Freedmen: Their Political and Economic Role 1354 

6. The Polis as a Warrior Guild versus the Medieval Commercial Inland 
City 1359 

7. Ancient City States and Impediments to Empire Formation 1363 

Notes 1368 



Appendices 



Append ix 1 
TYPES OF SOCIAL ACTION AND GROUPS 1375 

Appendix 11 

PARLIAMENT AND GOVERNA4ENT IN A RECONSTRUCTED 

GERMANY (A Contribution to tfee Political Critique of Officialdom 

and Party Politics) 1381 

Preface 1381 

i. bkjmarck's legacy 1385 

:i. BUREAUCRACY AND POLITICAL LEADERSHIP 1393 

i. Bureaucracy and Politics 1393 

2. The Realities of Party Politics and the Fallacy of the Corporate State 1395 

3. Bureaucratization and the Naivete of the Literati 1399 

4. The Political Limitations of Bureaucracy 1403 

5. The Limited Role of the Monarch [405 

6. Weak and Strong Parliaments, Negative and Positive Politics 1 407 

7. The Constitutional Weaknesses of the Reichstag and the Problem of 
Leadership 1410 

Hi. THE RIGHT OF PARLIAMENTARY INQUIRY AND THE 
RECRUITMENT OF POLITICAL LEADERS I416 

1. Effective Supervision and the Power Basis of Bureaucracy 1417 

2. Parliament as a Proving Ground for Political Leaders 1419 

3. The Importance of Parliamentary Committees in War and Peace 1420 

4. Domestic Crises and the Lack of Parliamentary Leadership 142,4 

5. Parliamentary Professionalism and the Vested Interests 1426 

XV. BUREAUCRACY AND FOREIGN POLICY I43I 

i. The Government's Failure to Curb Harmful Monarchic 

Pronouncements 143 1 
2. Parliamentary and Legal Safeguards 1438 

V- PARLIAMENTARY GOVERNMENT AND DEMOCRATIZATION 1 442 

I. Equal Suffrage and Parliamentarism 1442 



XXIV ANALYTICAL CONTENTS 

2. The Impact of Democratization on Party Organization and 
Leadership 1443 

3. Democratization and Demagoguery 1449 

4. Plebiscitary Leadership and Parliamentary Control 145 1 

5. The Outlook for Effective Leadership in Postwar Germany 1459 

Notes 1462 

INDEX 

SchoJars Hi 
Historical Names v 
Subjects xi 



,> 



List of Abbreviations 



Some of the extant translations were extensively annotated by the 
original translators. This annotation was to the largest part retained, 
and in some cases complemented by the editors; we also used some of 
the annotation provided for the 4th German edition of Wirtsckaft nnd 
Gesellschaft by Johannes Winckelmann. The unsigned notes in Part 
'One, chs. I — III are by Talcott Parsons, in Part Two, chs. VII-VIII by 
Max Rheinstein, and elsewhere by one of the editors as identified at the 
head of each section of notes. The following abbreviations were used to 
identify the authors of other notes : 



(GM) 
00 

(RIO 
CW) 
(WO 



Hans Gerth and C.'Wright Mills 
Guenther Roth 
Max Rheinstein 
Johannes Winckelmann 
Claus Wittich 



In the editorial notes, a number of abbreviations were used for works 
(or translations of works) by Max Weber; these are listed below. A 
group of further bibliographical abbreviations used only in Max Rhein- 
stein's annotation to the "Sociology of Law" is given in Part Two, ch. J 
VIII:*, n. 1 (pp. 658-661 below). 
AfS or Archiv 
Archiv fiir Sozialwissenschaft und SozialpoliHk. Tubingen: J. C. B. 
Mohr (Paul Siebeck). (A scholarly periodical edited by Max Weber, 
Edgar Jaffe and Werner Sombart from 1904 on.) 
Agrargeschichte 
Die romische Agrargeschichte in ikrer BedeuPung fur das Stoats- und 
Privatrecht. Stuttgart: Ferdinand Enke, 1891. (Weber's second dis- 
sertation.) 

"Agrarverhaltnisse" 
-"Agrarverhalrnisse im Altertum," in Handworterhuch der Staats- 

[xxv] 



X X V I LIST OF ABBREVIATIONS 

wissenschaften, 3rd ed., I (1909), 52-188. Reprinted in GAzSW, 
1-288. (Page references are to^this reprint.) 

Ancient Judaism or AJ 
Ancient Judaism. Translated and edited by Hans H. Gerth and Don 
Martindale. Glencoe, 111.: The Free Press, 1952. (A translation of 
"Das antike Judentum," Part III of "Die Wirtschaftsethik der Welt- 
religionen," first published in AfS, 1917-19, and of a posthumously 
published study, "Die Pharisaer," both in GAzRS, III.) 

Economic History 

General Economic History. Translated by Frank H. Knight. London 
and New York: Allen & Unwin, 1927; paperback re-issue, New 
York: Collier Books, 1961. (A translation of Wirtsckaftzgeschichte. 
Page references in ch. VIII are to the 1927 edition, elsewhere to the 
1961 paperback.) 

Fischofl. 

The Sociology of Religion. Translated by Ephraim Fischoff, with an 
introduction by Takott Parsons. Boston: Beacon Press, 1963. 

GAzRS 

Gesammelte Aufsatze zur Religionssoziologie. 3 vols. Tubingen: J. C. 
B. Mohr (Paul Siebeck), 1920-21; unchanged re-issue 1922-23. 

GAzSS 

Gesammelte Aufsatze zur Soziologie und Sozialpolitik. Tubingen: 
J.'C B. Mohr (Paul Siebeck), 1924. 

GAzSW 

Gesammelte Aufsatze zur Sozial- und Wirtschaftsgeschichte. Tubin- 
gen: J.C. B. Mohr (Paul Siebeck), 1924. 

GAzW 

Gesammelte Aufsatze zur Wissenschaftslekre. 2nd ed. revised and ex- 
panded by Johannes Winckelmann. Tubingen: J. C. B. Mohr (Paul 
Siebeck), 1951.(15! ed. 1922.) 

Gerth and Mills 
From Max Weber: Essays in Sociology. Translated and edited by 

" Hans H. Gerth and C. Wright Mills. New York: Oxford University 
Press, 1946. 

GPS 

Gesammelte Polttische Schriften. 2nd ed. revised and expanded by 

Johannes Winckelmann, with an introduction by Theodor Heuss. 

Tubingen: J. C. B. Mohr (Paul Siebeck), 1958. (1st ed. Miinchen: 

Drei Masken Verlag, 1921.) 
Hande Isgese llschaften 

Zur Geschichte der Handelsgesellschaften in Mittehdter. (Nacfe 



List of Abbreviation.-, XXVII 

sudeuropaHschen Quellen). Stuttgart; Ferdinand Enke, 1889. Re- 
printed in GAzSW, 312-443. (Page references are to the reprint. 
This was Weber's first dissertation.) 

Protestant Ethic 
The Protestant Ethic and the Sprit of Capitalism. Translated by Tal- 

' cott Parsons, with a foreword by R. H. Tawney. New York: Charles 
Scribner's Sons, 1958 (first publ. London, 1930). (A translation of 
"Die protestantische Ethik und der Geist d*s Kapitalismus," GAzRS, 
I, 1-206; first published in AfS, 1904-05.) 

R ech tssoziologie 
Rechtssoziolcgie. Newly edited from the manuscript with an intro- 
duction by Johannes Winckelmann. ("Scziologische Texte," vol. 2.) 
Neuwied. Hermann Luchterhand Verlag, i960 (2nd rev. ed. 1967). 
(This is the German edition of the "Sociology of Law" underlying 
the revised translation in Part Two, ch. VIII, below.) 

Religion of China 
The Religion of China. Confucianism and Taoism. Translated and 
edited by Hans H. Gerth. New edition, with an introduction by C. K. 
Yang. New York: Macmillan, 1964 (1st ed. Free Press, 1951). (A 
translation of "Konfuzianismus und Taoismus," Part I of "Die Wirt- 
schaftsethik der Weltreligionen," first published in AfS, 1916, re- 
printed in GAzRS, I, 276-536.) 

Religion of India 
The Religion of India. The Sociology of Hinduism and Buddhism. 
Translated and edited by Hans H. Gerth and Don Martindale. 
Glencoe, 111.: The Free Press, 1958., (A translation of "Hinduismus 
und Buddhismus," Part II of "Die VVirtschaftsethik der Weltre- 
ligionen," first published in AfS, 1916-17, reprinted in GAzRS, II.) 

Rheinstein and Shils 

Max Weber on Law in Economy and Society. Translated by Edward 
, Shils and Max Rheinstein, edited and annotated by Rheinstein. Cam- 
bridge, Mass.: Harvard University Press, 1954. 

Shils and Finch 
The Methodology of the Social Sciences. Translated and edited by 
Edward A. Shils and Henry A. Finch. Glencoe, 111.: The Free Press, 
1949. (A translation of three methodological essays, "Die 'Objektivitat' 
sozialwissenschaftlicher und sozialpolitischer Erkenntnis," AfS, 1904; 
"Kritische Studien auf dem Gebiet kulturwissenschafdicher Logik," 
AfS, 1906; "Der Sinn der 'Wertfreiheit' der soziologischen und 
okonomischen Wissenschaften," Logos, 1 917/18; reprinted in GAzW, 
146-214, 21 5-290, 475-526.) 



XXVIII LIST OF ABBREVIATIONS 

Theory 
The. Theory of Social and Economic Organization. Translated by 
A. M.. Henderson and Takctt Parsons, edited with an introduction 
by Parsons. New York: The Free Press, 1964 (first publ. New York: 
Oxford University Press, 1947). 

Wirtschaftsgeschichte or Universalgeschichte 

Wirtschaftsgeschichte. Abriss der universalen Sozial- und Wirtschafts- 
geschichte. Edited from lecture scripts by Siegmund Hellmann and 
Melchior Palyi. Mtinchen: Duncker & Humblot, 1923. (2nd ed. 1924; 
3rd rev. ed. by Johannes Winckelmann, 1958.) 

WuG and WwG-Studienausgabe 
Wirtsckaft und Gesellschaft. Grundriss der verstehenden Soziohgie, 
4th edition, revised and arranged by Johannes Winckelmann, 2 vols. 
Tubingen: J. C. B. Mohr (Paul Siebeck), 195& WwG-Studien- 
ausgabe refers to the licensed paperback edition (2 vols.; Koln-Berlin: 
Kiepenheuer & Witsch, 1964) which already incorporates some of 
Winckelmann's further revisions for the forthcoming definitive 5th 
German edition. 



Preface to the 1978 Re-issue 



After seven] years of being oi^t of print, during which rime it rapidly 
attained the status of a bibliopnilic rarity, Economy and Society is now for 
the first time available in this country and abroad as a hardcover and a paper- 
back, thanks to the cooperation of the American publishers who have sepa- 
rately published segments of the work in older versions. 

The present re-issue is identical with our 1968 edition, although some 
errata are eliminated. In the meantime, Professor Johannes Winckelmann, 
on whose fourth German edition of 1956 and 1964 our own edition is based, 
has completed his fifth and final edition with three hundred pages <f an- 
notations — a feat that only a member of his scholarly generation could have 
accomplished (Tubingen: Mohr-Siebeck, 1976). When the English editors 
prepared their own edition, they cooperated closely with Winckelmann in 
clarifying many dubious passages in the posthumously published work and 
in identifying literary and historical references, but unfortunately, the new 
annotations of the fifth edition could not be included in. the present English 
re-issue. 

Several important Weber translations have appeared since 1968. Edith E 
Graber translated Weber's essay "On Some Categories of Interpretive Soci- 
ology'' (M.A. thesis, Department of Sociology, University of Oklahoma, 
1970). This essay, the most important definitions of which appear here in 
Appendix I, was a fragmentary first draft of die general conceptual under- 
pinnings for the work, but Weber decided to publish it separately in 1913. 
Just before conceiving the idea of Economy and Society Weber finished his 
great encyclopedic essay on the economic and political history of antiquity, 
which Alfred Heuss, one of the most respected German classicists, has called 
"the most original and illuminating study yet made of the economic and 
social development of antiquity." This work, discussed here in relation to 
Economy and Society in the introduction (xlii-lvii), has now been trans- 
lated by R. I. Frank under the title The Agrarian Sociology of Ancient Civili- 
zations (London; New Left Books, 1976). 

Most of Weber's methodological critiques, which prepared the way f_or 
the positive formulation of his sociology in Economy and Society, have now 

[xxix] 



XXX Preface to the 1978 Re-issue 

been translated. Guy Oakes translated and edited Roscher and Knies: The 
Logical Problems of Historical' Economics (New York: The Free Press, 
1976) and Critique of Stammler (New York: The Free Press, 1977). An 
excursus on the Stammler critique is found in Economy and Society, pp. 
325-32 below. Oakes has also translated and edited Georg Simmel's The 
Problems of the Philosophy of History (New York: The Free Press, 1977), 
to which Weber refers in his prefatory note to ch. I, p. 3 below. Louis 
Schneider translated "Marginal Utility Theory and the So-Called Funda- 
mental Law of Psychophysics," Social Science Quarterly, 56:1, 1975, 21-36. 
This leaves untranslated only Weber's demolition of the "energeticist" 
theories of culture of the famed chemist and natural philosopher Wilhelm 
Ostwald, and some scattered but important methodological observations in 
his substantive writings. 

The 1968 introduction by Roth was intended in part as a supplement to 
Keinhard Bendix's Max Weber: An Intellect-ual Portrait (to6o), which for 
the first time presented comprehensively the substance of Weber's compara- 
tive sociology of politics, law and religion as it is found in Economy and 
Society and the Collected Essays in the Sociology of Religion (containing 
the studies of the Protestant ethic and sects in relation to the spirit of capi- 
talism and in contrast to the religious and social order of China, India and 
Ancient Judaism). This well-known study too was re-issued in 1978 by the 
University of California Press with a new introduction by Roth, which 
covers the Weber literature accumulated since i960. One further yield from 
Bendix's and Roth's concern with Weber was a joint volume. Scholarship and 
Partisanship, also published by the University of California Press in 1971. 
Moreover, Roth has continued his methodological exploration of Economy 
and Society in three other essays, "Socio-Historical Model and Developmental 
Theory," American Sociological Review, 40:2, April 75, 148-57; "History 
and Sociology" British Journal of Sociology, 27:3, Sept. 76, 306-18; and 
"Religion and Revolutionary Beliefs," Social Forces, 55:2, Dec. 76, 257-72. 

An up-to-date bibliography of the almost limidess secondary literature is 
Constans Seyfarth and Gert Schmidt, eds., Max Weber Bibliographic: Eiwe 
Dokamentation der SekundarUteratur (Stuttgart: Enke, 1977), 208 pp. For 
the latest bibliography of Weber's own writings, see Dirk Kasler, "Max- 
Weber-Bibh'ographie," Kolner Zeitschrift fur Soziologie, 27:4, 1975, 703-30. 

For the present re-issue the editors are greatly indebted to the unflagging 
interest and efforts of Mr. Grant Barnes of the University of California Press 
and to the support of Mr. Georg Siebeck, of the firm of Mohr-Siebeck in 
Tubingen, the German publisher of Weber's works. 

Finally, we dedicate with sorrow this edition to the memory of Carolyn 
Cain Roth (1934-1975), who for several years lived with the burden of our 
intense labors, showing great forebearance and retaining the salutary dis- 
tance of an artistic vision, which should always balance the sober concerns 
of scholarship. 

BAINBBIDGE ISLAND, WASHINGTON GuentheT Roth 

Scarsdale, New York Clous Wittich 

February 1977 



Prefc 



ace 



This is the first complete English edition of Economy and Society. 
All hitherto unavailable chapters and sections have been translated and 
the annotation has been considerably expanded. The Appendix contains 
a brief terminological supplement and one of Weber's major political 
essays. All previously translated parts used here have been thoroughly 
revised and many passages have been rewritten. The original translators 
of these chapters are absolved from all responsibility for the present ver- 
sion of their work. We would like to thank Ephraim Fischoff for going 
over our revision of his translation of the "Sociology of Religion" (Part 
Two, ch. VI) and for making further suggestions and offering other 
help. However, he too should not be held responsible for the final 
version. 

A number of extant translations were completely replaced: in Part 
One, ch. IV, "Status Groups and Classes"; in Part Two, ch. Ill : 3, "The 
Regulation of Sexual Relations in the Household," ch. IV: 3, "The 
Oikos," ch, XIV;i-M, "Charisma and Its Transformations," and ch. XVI, 
"The City." This last book-length chapter was newly translated by 
Wittich; all other new translations were first done by Roth. Our strategy 
of translation is explained in the Introduction. 

The following earlier translations of sections of Wirtschaft und 
Gesellschaft have been used and revised with the permission of the 
publishers, which is gratefully acknowledged. 

Ephraim Fischoff, trans., The Sociology of Religion (Boston; Beacon 

Press, 1963), pp. 1-274; now Par* Two, ch. VI; 
Hans Gerth and C. Wright Mills, trans, and eds., From Max Weber: 

Essays in Sociology (New York: Oxford University Press, 1946), pp. 

159-244, 253-262; now Part Two, chs. IX:3~6, XI, and XIV ;m; 
Ferdinand Kolegar, trans., "The Household Community" and "Ethnic 

[xxxi] 



X X X 1 1 PREFACE 

Groups/' in Talcott Parsons et al., eds., Theories of Society (New 
York; The Free Press of Glencoe, 1961), vol. I, pp. 296-298, 302- 
309; now Part Two, ch. Ill: i , ch. IV: 2, and ch. V:2; 

Talcott Parsons, ed. (A. M. Henderson and T, Parsons, trans.), The 
Theory of Social and Economic Organization (New York: The Free 
Press of Glencoe, 1964; originally published by Oxford University 
Press, 1947), pp. 87-423; now Part One, chs. I — III; 

Max Rheinstein, ed. (Edward Shils and Max Rheinstein, trans.), Max 
Weber on Law in Economy and Society (Cambridge, Mass. : Harvard 
University Press, 1954), pp. 1 1-348; now Part Two, ch. I, chs. VII- 
VIII,ch.IX:i-2,andch.X. 

Without the dedication and hard labor of the previous translators 
the present edition might never have been undertaken. Hans Gerth, who 
spent a singular amount of time on the translation of Weber's works, de- 
serves special recognition. The broadest contribution to the reception of 
Weber's thought has clearly been made by Talcott Parsons' translations 
and writings. 

Our special gratitude goes to Prof. Johannes Winckelmann, the 
German editor of Weber's works and head of the Max Weber Institute 
at the University of Munich, who gave us access to his text revisions for 
the forthcoming 5th edition of Wirtschaft und Gesellschaft and always 
freely shared his thoughts on textual and other problems. 

Finally, we want to thank Hans L. Zetterberg, who combines 
scholarship and entrepreneurship; he held out the challenge, patiently 
waited for the manuscript, and then saw it through to its publication. 
We are also grateful to Mr. Robert Palmer for preparing the index and 
to Mr. Sidney Solomon of the Free Press for supervising the technical 
preparation of the work and for designing the volumes. 

Berlin and new york Guenther Roth 

March 1968 Claus Wittich 



INTRODUCTION 

by Guenther Roth 

We know of no scientifically ascertainable ideals. To be sure, that makes 
out efforts more arduous than those of the past, since we are expected to 
create our ideals from vnthin our breast in the very age of subjectivist 
culture; but we must not and cannot promise a fool's paradise and an 
easy road to it, neither in thought nor in action. It is the stigma of our 
human dignity that the peace of our souls cannot be as great as the peace 
of one who dreams of such a paradise. 

Weber in 1909 

1. A Claim 

This work is the sum of Max Weber's scholarly vision of society. It 
has become a constitutive part of the sociological imagination as it is 
understood today. &xmomy and Society was the first strictly empirical 
comparison of social structure and normative order in world-historical 
depth. In this manner it transcended the plenitude of "systems" that 
remained speculative eve<? as they claimed to establish a science of 
society. 

Decades have passed since the manuscript was begun and left un- 
finished, yet few works in the realm of social science have aged so little, 
Its impact has been considerable over the years, although in a frag- 
mented and erratic fashion as the various parts became available only 
piecemeal to the English reader or remained altogether put of reach. 
Weber's ideas on social action and sociological typology, oW|&strumentaI 
and substantive rationality, on formal and material justice,' & bureauc- 
racy and charisma, on religious beliefs and economic conduct, have been 
gradually assimilated by social scientists—by way of accurate reception, 
imaginative adaptation and, not too infrequendy, inventive misinterpreta- 
tion,. 

The renaissance of comparative study in the nineteen-sixties has 
restored some of the original intellectual setting of Economy and Society. 

[xxXiii] 



XXXIV INTRODUCTION 

This has given a new pertinency to the work and is one reason for the 
complete English edition; another is the hoped-for correction of the un- 
even influence exerted by the isolated parts. Now the work has a fair 
chance to be understood as a whole, and its readers have a better oppor- 
tunity to comprehend it — this will be a test for both. 

Economy and Society is Weber's only major didactic treatise. It was 
meant to be merely an introduction, but in its own way it is the most 
demanding "text" yet written by a sociologist. f Fhe precision of its defini- 
tions, the complexity of its typologies and the wealth of its historical 
content make the work, as it were, a continuous challenge at several 
levels of comprehension: for the advanced undergraduate who gropes 
for his sense of society, for the graduate student who must develop his 
own analytical skills, and for the scholar who must match wits with 
Weber. 

Economy and Society is part of the body of knowledge on which 
Weber drew in his unwitting testament, his speeches on "Science as a 
Vocation" and "Politics as a Vocation," which he delivered shortly after 
the end of the first World War before a small number of politically 
bewildered students. By now thousands of students have read these two 
rhetorical masterpieces with their poignant synopsis of his philosophical 
and political outlook as well as of his scholarly animus. Yet the very 
compactness of the two speeches impedes easy comprehension. Economy 
and Society elaborates much that is barely visible in them. However, it 
-minimizes the propagation of Weber's own philosophical and political 
views, since it wants to establish a common ground for empirical investi- 
gation on which men of different persuasions can stand; in contrast to 
some of the methodological polemics, Economy and Society is meant to 
set a positive example. Yet there is more to it than is readily apparent. 
The work contains a theory of the possibilities and limitations of political 
democracy in an industrialized and" bureaucratized society, a theory that 
Weber considered not only empirically valid but politically realistic as 
against a host of political isms: romanticist nationalism, agrarianism, 
corporate statism, syndicalism, anarchism, and the Marxism of the time. 
Hence, there is in the work an irreducible element of what Weber con- 
sidered political common sense, but this does not vitiate the relative 
value-neutrality of the conceptual structure. Moreover, the work is full 
of irony, sarcasm and the love of paradox; a dead-pan expression may 
imply a swipe at the Kaiser, status-conscious professors or pretentious 
litterateurs. 1 And finally, with all its seemingly static typologies, the 

i . Ironic formulations and wordplays are hard to render in translation, and 
it would have been seif -defeating pedantry to explain more than a fraction in the 

editorial rtores. 



i] A Claim XXXV { 

work is a sociologist's world history, his way of reconstructing the paths 
of major civilizations. 

2. Sociological Theory, Comparative Study and Historical 

Explanation 

Economy and Society builds a sociological scaffolding for raising 
some of the big questions about the origins and the possible directions 
of the modern world. Weber set out to find more specific and empirically 
tenable answers to those questions than had been given previously. He 
belonged to the small number of concerned men who shared neither the ' 
wide-spread belief in Progress, which was about to be shattered by the 
first World War, nor the new philosophical irrationalism, which bad 
begun to appeal to many younger men. 

Weber's image of "economy and society" is so widely shared today 
among research-oriented students of society that in its most general 
formulation it no longer appears exceptional, unless we remember that 
it drew the lines against Social Darwinism, Marxism and other isms of 
the time. Weber rejected the prevalent evolutionary and mono-causal 
theories, whether idealist or materialist, mechanistic or organicist; he 
fought both the reductionism of social scientists and the surface approach 
of historians, both the persistent search for hidden "deeper" causes and 
the ingrained aversion against historically transcendent concepts. He took 
it for granted that the economic structure of a group was one of its major 
if variable determinants and that society was an arena for group con- 
flicts. He did not believe, however, in the laws of class struggle, jungle 
or race; rather, he saw men struggle most of the time under created 
laws and within established organizations. Given the incomplete recep- 
tion of his work, the roles he attributed to force and legitimacy have 
been overemphasized in isolation. Economy and Society clearly states 
that men act as they do because of belief in authority, enforcement by 
■staffs, a calculus of self-interest, and a good dose of habit. However, 
Weber was not much interested in master-key statements on the nature 
of Society and was set against the "need for world-formulae" CWeh- 
formelbedurfnis'). Unlike Engels, he saw no grounds for assuming an' 
"ultimately determining element in history." Economy and Society 
demonstrates the rather concrete level on which he wanted to approach 
sociological theory and historical generalization. 

After 1903 Weber clarified his methodological position toward the 
cultural and social sciences in half a dozen essays." But in Economy and 

2. Cf. 1. Roscher und Knies und die logischen Problems der historischen 
Nationalokonomie (1903/6), 145 pp.; 2. Die "Gfejefe#viMt" sozialwissenschaft- 



XXXVI INTRODUCTION 

Society he focussed on those concepts and typologies that would direcdy 
, aid the researcher. He developed his sociological theory — his Kategprien- 
lehre, as he sometimes called it — as an open-ended, yet logically con- 
sistent formulation of fundamental aspects of social action, on the one 
hand, and of historical types of concerted acdon ("general ideal types") 
on the other. The construction of such trans-epochal and trans-cultural 
types as, for example, enterprise and oikos or bureaucracy and hieroc- 
racy, makes sociological theory historically comparative. In this way 
sociological theory provides uV researcher with the dimensional concepts 
and empirical types that are prerequisites for the kind of comparative 
mental experiment and imaginative extrapolation without which causal 
explanation is impossible in history. 

Weber's sociological theory, then, grew out of wide-ranging historical 
research and was meant to he applied again to history, past and in the 
making. In addition to theory in this genetically historical sense, he em- 
ployed substantive theories of differing degrees of historical specificity: 

i. Theories explaining a relatively homogeneous historical configura- 
tion ("individual ideal type"), such as the spirit of capitalism; 

2. Theories about relatively heterogeneous, but historically inter- 
related configurations, such as the "economic theory of the ancient states 
of the Mediterranean"; 

3. Theories ("rules of experience") that amount to a summary of 
a number of historical constellations, without being testable propositions 
in the strict sense: for example, the observation that foreign conquerors ' 
and native priests have formed alliances, or that reform-minded monks 
and secular rulers have at times cooperated in spite of their ineradicable ' 
antagonism. The occurrence of, the former kind of collaboration, as in 
ancient Judaism, or its failure hvcome about in Hellas, due to the batde 
at Marathon," may have far-reacnuig historical consequences — one rea- 
son for the scholar's interest in such historical "summaries." 

licher und sozialpoMscher Erkenntnis\Ci904), 68 pp.; 3. Kritische Studien avf 
dem> % &fbiet der kutlurvrissenschafilichen Logik O90;), 75 PP-; 4- Stammlen* 
"O\0ptndung" der materialktixhen Geschichtsauftassung (1907), 68 pp., with 
t pOrthumously published postscript (zo pp.); J. Die GrenznutzUhre und das 
"ptychophysische Grundgesetz" (1908), 15 pp.; 6. "Energetische" KuUvrtheorien 
(1909), 16 pp.; 7. Ober den Sinn der "Wertfreikeit" der soziologischen und 
okonomischen Wissenxhaften (1917/18), prepared as a memorandum tor a 
meeting of the Verein fur Sozialpolitik in 191 3. All are reprinted in GAzW (for 
this and other abbreviations used for Weber's works, see the list following this 
Introduction). For English . versions of essays 1, 3, and 7, see Max Weber, The 
Methodology of the Social Sciences (Edward A. Shils and Henry A. Finch, trans, 
and eds.; Glencoe, 111.: The Free Press, 1949). 

3. On the battle of Marathon and the category of objective possibility, cf. 
Weber in Shils and Finch (edsO, Methodology .... 174. 



2] 



Comparative Sociological Study 



XXXVII 



Of course, the explanation of any specific historical event also re- 
mains "theoretical" in that it subsumes many discrete actions and is 
merely plausible, because unverifiable in the manner of the experimental 
sciences. Weber was acutely aware of this difficulty, which was exacer- 
bated by the scarcity and unreliability of the sources in most areas of his 
investigations, ancient and modern. 

Sociologists live, and suffer, from their dual task: to develop gen- 
eralizations and to explain particular cases. This is the raison d'Stre of 
sociology as well as its inherent tension. It would be incompatible with 
the spirit of Weber's approach to value the transhistorical ("functional- 
ist") generalizations of any formal sociological theory more highly than 
the competent analysis of a major historical phenomenon with the help 
of a fitting typology. The sociology of Economy and Society is "Clio's 
handmaiden"; the purpose of comparative study is the explanation of a 
given historical problem. Analogies and parallels, which at the time 
tended, to be used for evolutionary and morphological constructions and 
spurious causal interpretations, had for Weber merely instrumental 
, purpose: 

Whoever does not see the exclusive task of "history" in making itself 
superfluous through the demonstration that "everything has happened 
before" and that all, or almost all, differences are matters of degree — an 
obvious truth — will put the stress on the changes (Verschiebungen) that 
emerge in spite of all parallels, and will use the similarities only to 
establish the distinctiveness (Eigenart) vis-a-vis each other of the two 
orbits [i.e., the ancient and the medieval]. ... A genuinely critical 
comparison of the developmental stages of the ancient polis and the 
medieval city . . . would be rewarding and fruitful — but only if such a 
comparison does not chase after "analogies" and "parallels" in the 
manner of the presendy fashionable general schemes of development; in 
other words, it should be concerned with the distinctiveness of each 
of the two developments that were finally so different, and the purpose 
of the comparison must be the causal explanation of the difference. It 
remains true, of course, that this causal explanation requires as an 
indispensable preparation the isolation (that means, abstraction) of the 
individual components of the course of events, and for each component 
the orientation toward rules of experience and the formulation of clear 
concepts without which causal attribution is nowhere possible. This 
should be taken into account especially in the economic field in which 
inadequate conceptual precision can produce the most distorted evalu- 
ations. 4 

Weber had in mind men like Wilhelm Roscher, Ranke's pupil, for 
whom 



17.) 



4. "Agrtrverhalmisse im Altertum," in GAzSW, 257, 288. (C£. below, n. 



XXXVIII INTRODUCTION 

peoples are "generic biological entities" — as Hintze put it quite ade- 
quately. Roscher has explicitly stated that for science the development 
of peoples is in principle always the same, and in spite of appearances to 
the contrary, in truth nothing new happens under the sun, but always 
the old with "random" and hence scientifically irrelevant admixtures. 
This obviously is a specifically "scientific" (naturwissenschaftliehe^ 
perspective. 5 

Weber's comparative approach was directed against theories of his- 
torical sameness as well as theories of universal stages. He opposed in 
particular the interpretation of Antiquity, including ancient capitalism, 
as a "modern" phenomenon; this interpretation was advanced by "re- 
alistic" historians reacting against the humanist tradition with its 
idealization of classic Greece and Rome. Weber equally rejected the 
contemporary stage theories of rural and urban economic development. 
He, too, believed in a "general cultural development," but he focussed 
on the dynamics of specific historical phenomena, their development as 
well as their decline. For this purpose he employed several comparative 
devices (which will be illustrated below, p. xliii): (a) the identification 
of similarities as a first step in causal explanation; (b) the negative com- 
parison; (c) the illustrative analogy; (d) the metaphorical analogy. 

The ideal type too has a comparative purpose. It was Weber's solu- 
tion to the old issue of conceptual realism versus nominalism, but in the 
context of the time it was his primary answer to the scientific notion of 
law and to the evolutionary stage theories. Weber wrote much more on 
the logical status of the ideal type than on his comparative strategy. This 
imbalance is reflected in the literature; a great deal has been written 
about the ideal type, but very litde that is pertinent to the art of com- 
parative study. As historical "summaries" of varying degrees of specificity, 
ideal types are compared with slices of historical reality." For the re- 
searcher the issue is not whether the ideal type is less "real" than other 
historical concepts; rather, his task consists in choosing the level of con- 
ceptual specificity appropriate for the problem at hand. Weber's ideal 
types, as the reader can himself see, involve a theory about the dynamics 
and alternative courses of the phenomena involved. They are not meant 

5. "Roscher und Knies . . . ," in GAzW, 13. 

6. "All expositions for example of the 'essence' of Christianity are ideal types 
enjoying only a necessarily very relative and problematic validity when they are 
intended ... as the historical portrayal of facts. On the other hand, such presenta- 
tions are of great value for research and of high systematic value for expository 
purposes when they are used as conceptual instruments for comparison and the 
measurement of reality. They are indispensable for this purpose." Weber in Shils 
and Finch (eds.), Methodology . . . , 97. 



*] 



Comparative Sociological Study 



XXXIX 



to fit an evolutionary scheme, but they do have a developmental dimen- 
sion. A 

Ideal types are constructed with the help of historical rules of ex- 
perience, which are used as heuristic propositions. For example, Weber's 
theory of monarchy includes the observation that monarchs throughout 
the ages, from ancient Mesopotamia up to Imperial Germany, have been 
welfare-minded because they needed the support of the lower strata 
against the higher; however, these higher strata, nobility ^,id priesthood, 
usually remain important to the maintenance of monarchic power and 
legitimacy. Hence, the stability of monarchy rests in part on the ruler's 
ability to balance the two groups. It is from such observations, which 
permit the necessary specification, that the ideal type of patrimonialism 
(Part Two, ch. XII below) emerges. 

Weber's comparative strategy was directed toward establishing, with 
the aid of his typologies, (O the differences between modern and older 
conditions, and (2) the causes of the differences. This involved the 
exploration of secular phenomena that had "dropped out" of history (for 
example, ancient capitalism) hut that were culturally important in them- 
selves or useful for identifying modernity; it also involved the search 
for the "causal chains" of history. 

In the absence of a reductionist one-factor scheme and of historical 
"one-way streets," the relationship of economy, society and polity be- 
came for Weber a multi-faceted set of problems encompassing the inter- 
play of organization and technique of production, social stratification, 
civil and military administration, and religious and secular ideology. 
Apart from the issue of the uniqueness of Western civilization, this per- 
spective too led Weber to a comparative interest in the workings of 
civilizations. 

Such a comprehensive program of research required broad knowledge 
and expertise in several fields. The historical content of Economy and 
Society rests on a large body of scholarly literature, but also on Weber's 
previous research. In drawing on historical sources and secondary liter- 
ature, Weber had an advantage over those historians whose training had 
been mainly philosophical and philological, partly because he was a 
trained jurist and economist, partly because he had developed a sociologi- 
cal framework within which he could address precise questions to the 
secondary literature. 

An adequate understanding of Economy and Society should en- 
compass Weber's previous research and writings and perceive the close 
links. Since Weber rendered no systematic account of his strategy 
of comparative study or of the intellectual development that led him 



X L INTRODUCTION 

to the writing of Economy and Sodety t it appears worthwhile to trace 
here the methodological and substantive lines of reasoning that con- 
verge in the later work; since almost all of the earlier writings are 
untranslated, they will be quoted more extensively than would otherwise 
be desirable. 1 

3. The Legal Forms of Medieval Trading Enterprises 

Even for a man of Weber's generation it was rare to gain competence 
as historian of both Antiquity and the Middle Ages, and then to com- 
bine this with the study of contemporary concerns — industrialization, 
bureaucratization, democratization. Weber began his career in legal and 
economic history as both a "Romanist" and "Germanist"; he transcended 
the ideological antagonism of the two schools that so sharply divided 
German jurisprudence in the 19th century. Weber wanted, first of all, a 
good grasp of the varieties of legal and economic arrangements; hence 
he emulated the tremendous learning of an Otto Gierke, but he was 
out of sympathy with the persistent inclination of the Germanisls to 
reduce European history to the dichotomy of Romanized authoritarian 
organization Qierrschaftsverhand') and Germanic egalitarian association 
CGenossenschaf t) . 

From the beginning of his academic career Weber addressed himself 
to two broad historical questions: The origins and nature of (1) cap- 
italism in Antiquity, the Middle Ages and modem rimes, (2) political 
domination and social stratification in the three ages. His dissertation of 
1889 dealt with legal institutions of medieval capitalism, his Habilitatum t 
of 1 89 1 (that is, the second doctorate required for academic teaching) 
with the relationship between Roman politics and capitalism. 

The dissertation was a "Germanist" study, On the History of ike 
Medieval Trading Companies, written under Levin Goldschmidt. 8 
Based largely on printed Italian and Spanish sources, it dealt with 
various forms of limited and unlimited partnership that emerged with 
the revival of maritime and inland trade and urban craft production. 

7. In the following, attention will be given particularly to those studies that 
were omitted in Reinhard Bendix, Max Weber: An Intellectual Portrait (New 
York; Doubleday, 1060), Anchor edition, xxiii; see chs. I and II on Weber's early 
activities, his scholarly and political response to the problems of industrialization 
in Germany, especially the agrarian issue in Prussia east of the Elbe river (East 
Elbia). The present introduction is an effort to supplement Bendix' work and the 
introduction by Hans Gerth and C. Wright Mills in From Max Weber: Essays 
in Sociology (New York: Oxford University Press, 1946). 

8. Zur Geschichte der Handehgesellschaften m MittelalterXNach sudeuro- 
p&ischen QuelUn") (Stuttgart: Enke. 1889), reprinted in GAzSW, 312-443. 



mtK^mmtmmamZAtiBima.aa*,. 



^iU££ili±*Al*-. T.;,.^.^ 



3 3 __ Leg^/ Forms of Medieval Trading Enterprises XL I 

Medieval capitalism required legal institutions for implementing the 
sharing of risk and profit and defining the liabilities and responsibilities 
of the parties to a joint venture. Weber investigated the differences be- 
tween the partnership forms originating from the institutions of overseas 
trade in cities like Genoa and Pisa and those that emerged from the 
family craft enterprises of inland cities like Florence. The former were 
typically ad hoc associations for trading ventures, the latter more com- 
monly continuous households, with family and other members, often 
surviving several generations. The partnership forms of overseas trade 
Ccommenda, societas maris) were only concerned with delimiting re- 
sponsibilities and benefits, but the household enterprises long combined 
capitalist and communist modes of operation, before internal closure set 
in and they disintegrated as units of commercial enterprise. 

A few Weberian guidelines can already be perceived in this highly 
technical analysis. Economic and legal development are intertwined, yet 
"law follows criteria that are, from the economic viewpoint,, frequently 
extraneous";" it may regulate economic conditions far removed from its 
own dogmatic and social origins — this was a critique of correspondence 
theories, especially of the economically determinist variety. The insist- 
ence on the importance of the legal order for economic action is also the 
starting point of the first chapter of Economy and Society (Ch. I:i of 
the older Part Two). Here the consistency of Weber's basic perspectives 
over time is indicated. But the strength of the dissertation lay less in 
such a general position than in the vivid and detailed treatment and the 
ability to argue firmly with the historical opinions of renowned scholars 
such as Gierke and Rudolf Sohm. Yet Weber conceded his inability to 
arrive at novel overall conclusions. Already in the preparatory stage of 
the dissertation he commented in his ironic fashion: 

I had to learn Italian and Spanish well enough to work myself 
through books and to read hundreds of statutes . . , worst of all, statutes 
written in such ancient dreadful dialects that one can only be aston- 
ished by the ability of men at the time to understand such jargon. Well, 
I' was kept busy, and if not much has come out of it, it is less my fault 
than that of the Italian and Spanish magistrates who faded to include 
in the statutes the very things I sought. 10 

Weber felt that he had not been able to answer a controversial 
question of the time: To what extent were the early forms of the capi- 
talist partnership and firm shaped by Roman and Germanic legal influ- 

9. GAzSW, 322. 

10. Max Weber, Jvgendbriefe, ed. Marianne Weber (Tubingen: Mohr, 
n.d.), 274. 



X L I I INTRODUCTION 

ences? Conclusive answers to Gierke and Sohm appeared possible to him 
only after further comparative study, including also Germany. As it was, 
the dissertation limited itself to the differences among various forms "of 
commercial institutions, in order to lay the groundwork for later research. 

The dissertation shows that the exposition in Economy and Society 
of the open and closed relationships of household, family, kin-group and 
enterprise (esp. chs. 11:2, 1II:i, and IV:2 of Part Two) rests on long- 
standing knowledge of historical specifics and early familiarity with the 
literature. The later treatment of the associations is a mere summary 
with a systematic place in a wider context, yet the illustrations, which at 
first sight seem to fill the "empty boxes" somewhat arbitrarily, are often - 
based on careful consideration in those earlier studies. 

Two years after the dissertation Weber completed a "Romanist" 
Habilitation on The Roman Agrarian History in Its Bearing on Public 
and Private Law, 11 which qualified him to read Roman, Germanic and 
commercial law. He became a law professor in Berlin in 1893 and 
almost immediately took over for the ailing Goldschmidt. 



4. Economic and Political Power in Ancient Germanic 

History 

Weber wrote his Roman Agrarian History with the encouragement 
of August Meitzen, who was then working on tys monumental compara- 
tive study, The Settlement and Agrarian^Structure of the Western and 
Eastern Germanic Tribes, Celts, Romans, Finns and Slaves (3 vols., 
1895). For his analysis of property forms and social structure Meitzen 
ingeniously used the ancient survey maps of the villages. Weber pro- 
ceeded from Meitzen's chapter on the Roman land surveys. This under- 
taking was far more difficult than the study of the medieval trading 
companies; the findings were bound to be much more hypothetical 
because of the paucity and ambiguity of the sources. Weber believed he 
had shown that Roman agriculture could be analyzed adequately with 
concepts derived from other Indo-Germanic agrarian structures. How- 
ever, seventeen years later, in his. second major work on Antiquity, he 
wrote that he was still defending the work, but that it had indeed been 
full of "youthful sins" and particularly mistaken in its attempt "to apply 
Meitzen's categories to heterogeneous conditions," 12 Thus, in his early 
years Weber too had been influenced by evolutionary analogues, but by 

1 1 . Die rotnische Agrargeschichte in ihrer Bedeutiing fur das Staats- und 
Privatrecht (Stuttgart: Enke, 1891). 

12. Cf. Agrargeschichte, 2, and "Ajjiarverhaltniss'j . . . ," UAzSW, 287. 



4) 



Economic & Political Power 



XLIII 



1904, when he intervened in the dispute about ancient Germanic social 
structure, 1 * he combatted them energetically. Together with the critique 
of his contemporaries' methodology, Weber elaborated his view of the 
historic relationship between political and economic power, a view th*dt 
became important fur the typology of .domination in Economy and 
Society. At issue was the origin of manorial domination (Grundherr- 
schafO, for decades the center of scholarly debate. There was a tend- 
ency to explain the whole political and economic history of Germany 
in terms of the Grundherrschaft and its variants. 

The thesis of the predominance of manorial domination as early as 
the period of Caesar and Tacitus was upheld by Georg Friedrich Knapp 
and his school, especially by Werner Wittich; they rejected the older 
view according to which manorial domination resulted from the trans- 
formation of the Frankish levy into a cavalry of feudal vassals. As against 
the ^thesis of the Knapp school, Meitzen asserted the free status of the 
Germanic peasantry of late Antiquity and pointed to the equal parcelling 
of land in the communes. Meitzen did leave an opening to his adver- 
saries by acknowledging the nomadic way of life of Germanic tribes in 
Caesar's time, but he interpreted the transition from nomadic stock- 
breeding to husbandry as an emancipation of "labor from property," a 
phrase reminiscent of Karl Rodbertus' views. For Meitzen the Germanic 
settlement was the creation of the drive for economic independence 
inherent in the equalitarian spirit of the people. Knapp's school, how- 
ever, insisted that the free Germanic man of Caesar's day had been a 
catde-owner who despised agriculture and those who tilled the soil. The 
origin of Grundherrschaft was seen then to lie in the rule of cattle- 
owners over peasants. Wittich, for one, buttressed his view with Richard 
Hildebrand's scheme of cultural and legal development. "This theory," 
Weber commented, "is one of the attempt:, recendy so numerous, to 
comprehend cultural development in the manner of biological processes 
as a lawful sequence of universal stages." 11 Hence the assertion of a 
universal nomadic stage, at least in the Occident. The theory worked 
with analogies from the contemporary nomadic life of Bedouins and 

13. "Der Streit urn den Charakter der altgermanischen Sozialverfassung in 
der deutschen Literatur des letzten Jahrzehnts," in GAzSW, 508-556; first pub- 
lished in JakrhUcher fiir Nattonalokonomie und Statistik, 3d series, vol. 28 
(1904). 

14. GAzSW, 513, Cf. Richard Hildebrand, Recht und Sitte auf den primj- 
tiveren wirtschaftlichen K-ulturstufen (Jena: Fischer, 1896); for Hildebrand's 
counterattack, which rejects Weber's interpretation of Germanic agriculture in 
Caesar's time, see the second edition of 1907, pp. ssf., 64-f.; see also Werner 
Wittich's review essay on Hildebrand, "Die wirtschaftliche Kultur der Deutschen 
zur Zeit Caesar's," Historische Zeitschrift, vol. 79, 1897, 45-67- 



X L I V INTRODUCTION 



Kirghiz, applying them to elucidate Germanic prehistory. If these no- 
mads scorned agricultural labor, by inference the Germanic nomads must 
have done likewise. Weber objected : 

This procedure of a scholar whom I too hold in high esteem is a 
good example of the manner in which the concept of "cultural stages" 
should not be applied scientifically. Concepts such as "nomadic," "semi- 
nomadic," etc., are indispensable for descriptive purposes. For research, 
the continuous comparison of the developmental stages of peoples and 
the search for analogies are a heuristic means well suited, if cautiously 
used, to explain the causes of distinctiveness of each individual develop 
ment. But it is a serious misunderstanding of the rationale of cultural 
history to consider the construction of stages as more than such a 
heuristic means, and the subsumption of historical events under such 
abstractions as the purpose of scholarly work — as Hildebrand does — ; 
it is a violation of proper methodology to view a "cultural stage" as 
anything but a concept, to treat it as an entity in the manner of bio- 
logical organisms, or an Hegelian "idea," from which the individual 
components "emanate," and hence to use the "stage" for arriving at 
conclusions by analogy: If the historic phenomenon y usually follows 
x, or if both tend to be co-existent, y 1 must follow x tr or be co-existent, 
since x and x 2 are conceptual components of "analogous" stages of 
culture. 

The mental construct of a cultural stage merely means, analyti- 
cally speaking, that the individual phenomena of which it is composed 
are "adequate" to one another, that they have — as we could say — a 
certain measure of inner "affinity," but not that they are related in any 
determinate way CGesetzmassigkeit). ... 

The belief in a universal "stage" of nomadic existence, through 
which all tribes passed and from which the settlement developed, can 
no longer be retained in view of our knowledge of the development of 
Asiatic peoples and after Hahn's investigations [Die Haustiere, 1896]. 
At any rate, the knowledge of a by no means primitive form of agri- 
culture among the Indo-Germanic peoples goes back into the darkest 
past." 

In Weber's view the Germanic tribes of Caesar's day were not no- 
madic nor were the freemen a stratum of landlords (GrunSienen) who 
left most work to slaves and women; slaves were not a substantial part 
of the workforce and the status differentiation between warrior and 
peasant did not exist at the beginning of recorded history; rather, the 
Germanic freemen were transformed very gradually into the politically 
disenfranchised and economically harassed peasants of the Middle Ages, 

Weber accepted Meitzen's view that the German village with its land 
distribution was a product of legal autonomy, a monopolistic association 
of relative equals, not a product of manorial decree. However, in contrast 

15. GAzSW, 517, 524. 



V 
4 ] Economic & Political Power X L V 

to Meitzen's assumption of an equalitarian folk spirit, Weber took an 
economically more realistic line and reasoned persuasively that the equal 
parcelling out of land by a closed association pointed to the narrowing of 
economic opportunities (land shortage), similar to the monopolistic 
policies of medieval guilds, 1 * 

In examining the Roman sources, Weber pointed out that Caesar's 
report about the Suevi was no proof for a nomadic way of life of the 
Germanic tribes. The Suevi, a frontier people, had developed into a group 
of professional warriors, engaging in periodic raids on adjacent areas 
and neglecting agriculture. This brought Weber to the phenomenon of 
warrior communism and his most general point: the historical primacy 
of political over economic factors: 

If one wants at all to search for distant analogies such as might be 
offered by the Kirghiz and Bedouins, the traits of an "autarkous state" 
[an allusion to Ficnte's collectivist Utopia] found among the Suevi will 
remind one much more of the robber communism that existed in 
Antiquity on the Liparian islands or — if the expression be permitted — 
the "officers' mess communism" of the ancient Spartans, or of the 
grandiose booty communism of a Caliph Omar, In one phrase, these 
traits are the outcome of "warrior communism." They can easily be 
explained as a result of purely military interests. , . . They would 
scarcely be in tune with the living conditions of a tribe stagnant at the 
nomadic stage and ruled by great cattle-owners in* a patriarchal 
manner, ... 

The oldest social differentiation of Germanic and Mediterranean 
prehistory is, as far as we can see, determined primarily politically, in 
part religiously, not, however, primarily economically. Economic differ- 
entiation must be considered more as a consequence and epiphenomenon 
or, if you want it in the most fashionable terms, as a "function" of the 
former, rather than vice versa. ... 

If the term may be applied to prehistory at all, a "knightly" life 
style . . . often goes together with a manorial position; in fact, this is 
the rule once private hereditary landownership has fully developed. : . . 
However, it is by no means generally true that this life style leads to, 
or is related to, manorial superordination over other freemen — in the 
age of Homer and Hesiod as little as in that of the Germanic epics. 
It means a reversal of the usual causal relationship to view the later 
manorial constitution not as a consequence but as the original basis of 
the priviliged position of the high-ranking families. The historical 
primacy of manorial domination appears highly unlikely, first of all, 
because in an age of land surplus mere land ownership could not very 
well be the basis of economic power," 

16, This is again the phenomenon of closed economic relationships treated in 
Part Two, ch. II : 2 below. 

17. GAzSW, 523, 5; 4 f. 



X L V I INTRODUCTION 

Weber concluded his essay with a reminder about the triviality in- 
herent in correct scholarly results and anticipated that the older view 
would probably survive the recent challenges: "This may appear trivial. 
But unfortunately, trivial results, by their very quality, are often the 
correct ones." 

It is from concrete historical issues such as these that Weber fash- 
ioned, in Economy and Society, his contrast between patrimonial dom- 
ination and charismatic rule. The joining of these military with religious 
phenomena established the category of charismatic domination. 18 



5, The Roman Empire and Imperial Germany 

Weber had an early interest in the comparison and comparability of 
Imperial Germany and Imperial Rome. On this score he was close to 
Theodor Mommsen, who described the Roman Republic in the terms 
of liberal political theory and polemicized against Imperial Germany 
with analogies from Antiquity. In the academic public Weber's com- 
parative interest was at first not widely noticed- The Roman Agrarian 
History proved technically too difficult to be understood by more than a 
very small group of scholars. Alfred Heuss, today counted among the 
foremost Roman historians, has pointed out that Weber 

was the first to take the Roman agrarian writers {Cato, Varro, Columella) 
seriously, examining them in a matter-of-fact way . . . and uncovering 
the crass principles of Roman agrarian capitalism in its technical details. 
In this respect, the book, although generally neglected by the historians, 
became path-breaking, and subsequent research had to continue along 
its line of inquiry, , . , Who else among the historians of the time was 
capable of handling the legal sources and the technical language of land 
surveyors, both of which Weber combined in a virtuoso fashion? The 
book, hard to understand because of its dry and remote subject matter, 
is an ingenious work. 1 * 

Among the historians of the time the aged Mommsen was best 
qualified to judge Weber's work. He hailed its publication and welcomed 
its author onto his previously exclusive ground: the borderlines of 
Roman private and public law. As early as the occasion of Weber's 
doctoral defense Mommsen had said: "When the time comes for me to 
descend into the grave, there is no one to whom I would rather say: 
'Son, here is my spear, it has become too heavy for my arm/ than Max 

18. Specifically, booty and military communism is treated in Part Two, ch. 
XIV: 6. 

19. Alfred Heuss, "Max Webers Bedentung fur die Geschichte des griechisch- 
romischen Altertums," Historische Zeitschrift, vol. 201, 1965, 535. 



5l 



The Roman Empire and Imperial Germany X L V 1 1 



Weber/' 10 However, Weber did not become his successor and quickly 
moved beyond the confines of ancient history. In the early nineties he 
involved himself in a questionnaire study of the conditions of rural 
laborers conducted under the auspices of the Verein fur Sozial-poliHk, 
the most important association of professors, politicians and higher civil 
servants for the study of the Social Question in Imperial Germai.y. Be- 
tween 1892 and 1894 Weber published extensively on farm labor, and, 
in contrast to the Roman Agrarian History, his new writings did attract 
considerable attention. Weber's turn of interest was acknowledged with 
the offer of an economics chair at the University of Freiburg, which he 
accepted in 1894; this was an extraordinary offer for a jurist — not even 
the usual "rehabilitation" (that is, the writing of a second Habilitation 
to qualify in a different academic field) was required. 

In Freiburg Weber delivered a popular lecture on "The Social 
Causes of the Decay of Ancient Civilization" (1896). 21 The major po- 
litical link between his studies of Antiquity and of East Elbia was the 
1 problem of the "rise and fall of empire." The common theme was the 
self-destruction of empire through the cleavage between the rich and the 
poor. In the Roman Agrarian History Weber had searched for the 
"social strata and economic interest groups" behind the expansionism of 
the Empire and the unparalleled capitalist exploitation: "It is likely that 
the political domination of a large polity has never been so lucrative." 22 
The Roman state suffered from a "convulsive sickness of its social body." 
Weber freely stated his value judgment. The transition from the con- 
dition of the barrack slaves to that of hereditarily attached peasants, who 
were permitted families of their own and conditional land use, appeared 
to him a decisive change for the better: 

The moral significance of this development need scarcely be empha- 
sized. One must remember that at the beginning of the Empire Bebel's 
ideal of legal marriage [i.e., freely contracted and dissoluble marriage] 
was realized de facto among the upper strata, de jure for citizens in 
general. The consequences are known. In this study it has not been 
possible to show the connection between the influence of the Christian 
ideai of marriage and this economic development, but it should be 
obvious that the separation of the slaves from the manorial household 
was an element of profound internal recovery (Gesundung), which 

10. Marianne Weber, Max Weber. Ein Lebensbild (Tubingen: Mohr, 1926), 
in — (henceforth cited as Lebensbild"). 

2i, "Die sozialen Griinde des Untergangs der antiken Kultur," in GAzSW, 
289-31 1; a translation by Christian Mackauer in Journal of General Education, 
V, 1950-51, 75-88. 

22. Agrargeschichte, 6. 



X L V I I I INTRODUCTION 

was by no means bought too dearly with the relapse of the "upper ten 
thousand" into centuries of barbarism. 23 

Weber saw the social developments in East Elbia against the back- 
ground of Roman history. He observed with apprehension the proletariza- 
tion of the peasants in the second half of the 1 9th century. The manorial 
Junkers gradually turned into capitalist entrepreneurs; they preferred 
cheap seasonal labor — little more than barrack slaves — from beyond the 
Russian frontier to a permanent and landowning German workforce. 
Weber foresaw grave dangers in the Junkers' labor and tariff policies and 
rejected their hollow claim to be the military pillars of the Empire even 
as they undermined it socially and economically. He warned his elders 
in the Verein fur Sozialpolitik in 1893 tnat " tne most horrible of all 
horrors is a landowning proletariat for whom the inherited land has 
become a curse." 14 

In his 1896 Freiburg address Weber repeated his judgments and 
cautioned his classically educated audience against its ready belief that 
the decline of the Roman Empire could provide lessons for the solution 
of modern social problems. He even went so far as to label the topic as 
"merely of historic interest." But this was primarily a didactic stricture. 
He did mean to teach his listeners something about the relative im- 
portance of the economic factor and of social changes in the lower 
strata. An intellectual and political culture should not be viewed in iso- 
lation from the economic and social structure, as the Humanists had 
done up to Jakob Burckhardt, and as the classical schools were still 
doing; basic shifts in the mode and division of labor, and especially 1 
economic and cultural changes within the lower strata, could be his- 
torically as significant as changes in the ruling groups and their culture. 
Imperial Germany faced such shifts with the growth of its industrial 

23. Ibid., 274^ Weber's view was later detailed by Marianne Weber, 
Ehefrau und Mutter in der Rechtsewtwicitlwng (Tubingen: Moht, 1907); on 
marriage in the Roman upper classes, 168-173, on slavery, marriage and Christi- 
anity, 177-187, on Bebel, 80, This voluminous comparative study, which Weber 
suggested to his wife and in which he took a hand, should be seen as the back- 
ground for the cursory treatment of marriage and property rights in chs. Ill and 
IV of Part Two below. 

The sudden ironic reference to August Bebel, after many highly technical 
pages, is to the most popular socialist book of the time, Woman and Socialism 
(1879), esp. ch. 28. In the 9th edition of 1891, Bebel popularized Friedrich 
Engels' The Origin of the Family, Private Vmperty and the State (1884), the 
Marxist sequel to Lewis H. Morgan's Ancient Society (1877). Throughout his 
career Weber gave attention to the socialist theory of marriage and property. 
For the last statement ( 1919/20), see Economic History, 20. 

24. "Die landliche Arbeitsverfassung," GAzSW, 46%. 



5l 



The Roman Empire and Imperial Germany X L I X 



and agrarian proletariat, although her specific troubles were largely the 
opposite of those that had brought down the Roman Empire. 

Weber presented a simplified version of his explanation for the 
decline of the Roman Empire— later part of his economic theory of the 
ancient states: With the stabilization of the Empire the flow of new 
slaves, the chief capital good of ancient capitalism, began to dwindle. 
Commerce waned. Administering the vast conquered inland areas with 
the means of a maritime city state proved increasingly difficult, The 
Iatifundia established themselves as administrative unite independent of 
the cities. Local troops replaced the standing army that had been largely 
self-perpetuating, up to one half of the recruits being the sons of soldiers. 
As economy and culture became rural, cosmopolitanism vanished. Thus 
the economic development of Antiquity, which had started out as a 
localized subsistence economy, came full circle. However, for Weber this 
circularity (Kreislauf) did not involve morphological assumptions in the 
mode of Oswald Spengler. 

The disintegration of the Empire was a problem of super- and sub- 
structure: "In essence, the decline meant merely that the urban ad- 
ministrative apparatus disappeared, and with it die political superstruc- 
ture dependent upon a money economy, since it was no longer adapted 
to the economic substructure with its natural economy." 18 What had 
been an urban substructure, the money economy and commerce, became 
a superstructure without sustaining basis as the shift occurred from a 
maritime to an inland economy. Thus Weber handled the relationship 
; of super- and substructure in terms of geographical shift as well as time 
sequence. 

Throughout the address, Weber used various comparative devices. 
He began with the similarities of the ancient and the medieval city in 
order to identify the causes for their difference; the more similarities he 
found, the more he could narrow down the area of crucial difference. In 
order to clarify the dissolution of the ancient municipalities, he resorted 
to a negative contemporary analogy, the resistance of the Prussian 
Junkers to the administrative incorporation of their estates into the rural 
"communes" (Ijmdgerneinden),** and he contrasted the familiar me- 
dieval and modern flight from the land with the late Roman flight from 
the cities. He made the military discipline of the Roman slaves more 
understandable to his listeners by comparing it illustratively to an ex- 
perience they knew: military service with its regimented barrack life 



a;. "Die sorialen Griinde . . . ," GAzSW, 308. 
. 16. On the Prussian GitUbedrke, the 7«»k*r-mled 
low, eh. XVI:v, n. 9 Cp. '3^9)> 



'estate-districts," see he- 



INTRODUCTION 



for the unmarried recruits ("slaves"), who were drilled by married no. 
commissioned officers Q'viUici"^). Comparing the slaves on the Roman 
latifundia with those on the Carolingian estates, Weber pointed to the 
decisive difference: the latter were permitted a family and the use of 
land upon their separation from the lord's oifeos. 



6. The Economic Theory of Antiquity 

Weber's most comprehensive work on Antiquity was written shortly 
before Economy and Society. Behind the title "Agrarian Conditions in 
Antiquity"" was hidden nothing less than a. comparative social and 
economic study of Mesopotamia, Egypt, Israel, Greece, the Hellenist 
realm, and Republican and Imperial Rome. Alfred Heuss called it "the 
most original, daring and persuasive analysis ever made of the economic 
and social development of Antiquity . . . the area in which Weber's 
judgment, especially in the details, was most sovereign and surefooted, 
... a claim that stands although he was even more 'original' in the 
sociology of religion." 28 

In contrast to Economy and Society, the. study focussed on an eco- 
nomic and politico-military typology and did not yet include the cate- 
gories of legitimate domination. It should be noted that in Weber's 
thinking the category of appropriation, both of economic and military 
resources, is older than that of legitimacy; furthermore, that differences 
in the mode of appropriation in both areas remained equally important 
to him.' 

Whether a military constitution rests on the principle of self- 
equipment or that of provisioning by the warlord who supplies horses, 
arms and food, is as fundamental a distinction for social history as is 

zj. "Agrarverhaltnisse im Altertum," GAzSW, 1-288; originally published 
in the HandtvdrteTiruch der Sutatswissenschaften, third ed. (1909), vol. I, 52- 
188. The restricted title was determined by the division of the handbook. The ten- 
page annotated bibliography should be consulted for Economy and Society. The 
book-length study was dashed off in four months in 1908, a feat made possible 
by the fact that Weber had done his thinking ahead of the period of writing and 
was thoroughly familiar with the literature. 

Webef seems to have divided some of the subject matter with Rostovzeff, who 
contributed the handbook article on coloni. Rostovzeff, who in the United States 
became much better known than Weber as an ancient economic historian, was 
one of the few to utilize Weber's analysis. Other historians rediscovered some of 
Weber's results after the First World War — another instance of the discontinuity 
that plagues most scholarly disciplines. By and large, it still appears that Weber's 
ancient studies have not yet been followed through sufficiently. 

28. Heuss, loc. cit., 538. 



6] 



An Economic Theory of Antiquity 



LI 



another: whether the means of production are owned by the workers 
or appropriated by a capitalist entrepreneur. 1 ' 

Given this perspective Weber set himself the task of relating the 
ancient economy to the major political structures. Almost incidentally, 
he further clarified his comparative approach. Two issues stood out: 
CO, If there are no universal evolutionary stages, at any rate, if they 
cannot be identified historically, what kind of typology is suitable for 
analysis? (z) If the categories of economic history appropriate for 
medieval and modem conditions are not applicable to Antiquity, which 
conceptual alternatives should be used? 

As against evolutionary conceptions, Weber advanced a limited 
developmental scheme that left the actual historical sequences open 
and put in their stead logical "states" or "conditions" — a model-building 
device that became basic for Economy and Society. This was a "static" 
approach only in comparison with evolutionary sequences. Weber argued 
that ancient social history had no visible starting point, since most his- 
torical phenomena appeared to be secondary, militarily determined, 
developments, such as the phratries, phylae and tribus. Nothing reliable 
was known about the primeval rural structure. For Weber even the 
"plausible hypothesis" that the ruling families at least originated as no- 
madic conquerors was not generally acceptable, since the aristocratic 
polity developed at the Mediterranean coast and could be proven to 
have other origins; the starting points were lost in the darkness of pre* 
history. All that could be historically reconstructed were "certain or- 
ganizational states, which apparendy repeated themselves to some extent 
in all those ancient peoples, from the Seine to the Euphrates, that had 
at least some urban development." 10 

Weber began his analysis with a series of brief comparisons that 
linked up with his reasoning in "The Controversy About Ancient Ger- 
manic Social Structure." European and Asian agrarian history differed 
in a crucial category; land appropriation. Comparing the courje of early 
' setdement in Europe and Asia, Weber saw the former proceeding from 
initial nomadic livestock raising to mixed crop and livestock agriculture, 
the latter from nomadic crop raising to intensive agriculture of a garden- 
ing type. Hence the development in Europe, but relative absence in Asia, 
of communal property in grazing grounds. 

Next, Weber compared ancient and medieval agriculture in the 
Occident. In both cases agriculture intensified with the narrowing of 
economic opportunities. Agricultural preoccupation made the majority 

29. Cf. Economic History, 137, for a slightly different wording, 

30. "Agrarverhaltnisse . . . ," GAzSW, 35. 



L I I INTRODUCTION 

of men economically unavailable for 'military Service. Thus arose the 
professional warriors who exploited the masses. Weber defined feudalism 
in a manner transcending the medieval case. This enabled him to point 
to the decisive difference between the ancient and the medieval condi- 
tions. Medieval feudalism dispersed the warriors over the countryside 
as manorial lords (Grunctfierren); ancient feudalism was urban: the 
warriors lived together in the polis. ■ 

In this development military technology was partly cause, partly 
epiphenomenon. Weber emphasized that In Antiquity, in contrast to the 
Middle Ages, both the diffusion of superior military techniques and the 
spread of commerce occurred by sea. Whereas central and western 
Europe became manorial and feudal at a time when trade by land had 
declined, "feudal" development in Antiquityled to the creation of the 
city state. This centralization had the consequence that citizenship was a 
much firmer bond than were the ties of personal loyalty typical, of de- 
centralized medieval feudalism. 

At this point Weber cautioned again not to mistake analogy for 
identity: 

The relationship of ancient urban feudalism to the exchange 
economy is reminiscent of the rise of the free crafts in our medieval 
cities, the decline of patrician rule, the latent, struggle between Urban 
and manorial economy, and the disintegration or the feudal polity 
under the impact of the money economy. . • • But these ever present 
analogies with medieval and modem phenomena are frequendy most 
unreliable and often outright detrimental to unbiassed comprehension. 
. . , Ancient civilization has specific characteristics that distinguish it 
sharply from the medieval and the modem." 

Weber listed a series of features: Ancient civilization centered on the 
coasts and the rive*|: trade was widespread andhigbly profitable, but 
lacked the volume itnad in the late Middle Ages; the great ancient em- 
pires were more mercantilist than the modern Mercantilist states; private 
trade was insufficiently developed to guarantee the politically crucial 
grain supply of the urban centers, which maintained a consumer pro- 
letariat of declassed citizens, not a working class; slavery was more im- 
portant than in the Middle Ages. 31 

These comparisons led Weber to the issue, heatedly debated for 
many decades, whether the categories of modern and medieval eco- 
nomic history were appropriate for Antiquity. In the eighteen-sixties 

31. Ibid., 4. 

32. Weber conceded that in earlier writings he had overestimated the im- 
portance of slavery relative to free labor, but insisted that in the classic period of 
the "free" polities slavery was especially important, Ci. GAzSW, 7—1 1, as against 
his older view, ibid., 293. 



6) 



An Economic Theory of Antiquity 



LIII 



Karl Rodbertus, "himself a country squire, had investigated the master's 
extended household (the oihos") as die dominant Unit of ancient econ- 
omy; he also gave much attendon to ancient capitalism. As a scholar of 
.Antiquity, the conservative socialist Rodbertus surpassed Marx, who had 
labelled the agrarian developments the "secret history of the Romans," 
Karl Bucher, whose work proceeded from Rodbertus, Marx, Engels and 
Schmoller, accepted the oihos as-one st^ge, within his influential scheme 
of economic development — household, urban an'd national economy.** 
Biicher, who believed in the "lawful course'of economic development" 
(Preface, «*), was criticized by Eduard Meyer, who denied the neefl- 
for particular economic concepts in the study" of Antiquity. Weber, in 
turn, warned of the futility of Meyer's approach: "Nothing could be 
more dangerous than to conceive of ancient conditions as 'modern.' 
Whoever does it underestimates, as so often happens, the structural 
differences. . . .""* 

Weber recognized the importance of the oijfcos, but viewed it, within 
the Roman context, as the "developmental product" of the Imperial 
period and as the transition to medieval feudalism; by contrast, the Ori- 
ental oihos had existed from the beginning of history. As against Rod' 
bertus, who saw the oi&os developing directly out of the self-sufficient 
household, Weber pointed for thfe Chient to its origins in the irrigation 
economy and trade profit-: The early military chieftains were also 
merchants. 

Weber affirmed that Antiquity had a capitalist economy "to a degree 
relevant for cultural history." He opposed the view that there had been 
no capitalism because the large-scale enterprise with free and differenti- 
ated labor was absent. Such an approach focussed too narrowly, he 
thought, on the social problems of modem capitalism. Instead, he in- 
sisted on a purely economic concept of capitalism: "If the terminology 
is to have any classificatory value at all," capital must mean private 
acquisitive capital (Enverbskapital') used for profit in an exchange 
economy. - '* In this sense the "greatest" periods or Antiquity did have 
capitalism. The ancient polis began with ground rents and tributes 
collected by the ruler and the. patriciate; its economic prosperity was 

33. Cf. Karl Rodbertus, "Zuc Gaochichte der romijehen Tribute teuern seit 
Augustus," Jahrbiicher fiir NatiottplQkonomie urtd Statistik, V, 1865, 241-315; 
"Zur Frage des Sachwerts des Geldes im A'ttrtuW k*- cit -> XIV, 1870, 341- 
410; Karl Marx, Das Kapital, in Vferke, r/o\- 23 (Berlin: Die a, 1962), 96; Karl 
Biicher, Die Entstehung der Volfcswirtsc^ft (14th ed.; Tubingen: Laupp, 
1920), 83-160 — first published in 1893" as a collection of older articles; an 
English edition s.t. Industrie I Evolution (New York: Holt, 1 901). 

34. GAzSW, 10. 

35. Ibid., 13. 



LI V INTRODUCTION 

; politically determined. However, the mere tendering of tributes to per- 
sonal rulers lay outside the realm of capitalism and the exchange econ- 
omy. In this case neither the rent-yielding land nor the retainers could 
be considered "capital," since domination had a traditional, not a market 
basis: it was manorial domination (Gmndherrschaft). When the land- 
owners leased land in an exchange economy, ownership became a 
capitalist rent fund. But the capitalist enterprise proper came into exist- 
ence only when both land and slaves became transferrable on the 
market. The classic cities did not have large-scale private enterprise for 
any length of time. There was no qualitative division of labor; instead of 
machinery, debt serfs and purchased slaves were used; the crafts played 
a secondary role, and the guilds remained unimportant. Much of the 
ancient economy, then, was a "mixed economy," partly manorial, partly 
capitalist. 

Weber considered the political and administrative structure of the 
ancient states decisive for the fate of capitalism. The state administra- 
tion, especially public finance, constituted the biggest enterprise. Only in 
the city state, which lacked a bureaucratic apparatus for the administra- 
tion of its territories, could public finances act as a pacemaker for private 
capital formation — because the polity was for its financing dependent 
upon the private tax farmer. Weber pointed to a major difference be- 
tween monarchic and republican states: Ancient capitalism culminated 
in the Roman Republic, where the public lands became the object of 
the crassest form of private exploitation. The monarchies constricted 
capitalism; in the interest of dynastic continuity they were concerned 
with the subjects' loyalty. In the city republic the primary goal was 
capitalist exploitation, in the monarchy it was political stability. "In 
republics tax-farming is always at the ready to turn the state into an 
enterprise of the state creditors and tax-farmers in the manner of 
medieval Genoa." Whereas the city state allowed private capital ac- 
cumulation of a highly unstable kind, the bureaucratic order of the 
monarchic state economy gradually destroyed the opportunities for 
private gain. "The monarchic order, so beneficial for the masses of the 
subjects, was the death of capitalist development and of everything 
dependent on it" M 



y. A Political Typology of Antiquity 

Beyond the contrast between republics and monarchies, well-known 
from ancient political theory, Weber elaborated a developmental scheme 

36. Ibid., 19 and 31. 



7l 



A Political Typology of Antiquity 



LV 



with open historical direction. Apart from its classifkatory uses, -he hoped 
that it would remind the reader of the very different stages of develop- 
ment at which the polities entered the light of history — depending on 
the "accidental" availability of the sources. In contrast to Greece, Meso- 
potamia and Egypt had had some kind of urban culture «rnny centuries 
before the first records were made. 

Weber based his typology on the "military constitution" and dis- 
tinguished : 

i. the merely fortified location; n. the petty "castle kings"; hi. the clan 
polity; iv. the bureaucratic urban principality; v. the liturgic monarchy; 
vi. the polis of privileged citizens; vn. the democratic polis; and outside 
the scheme, vm, the military peasant confraternity. 

i. The distant forerunner of the city is the walled settlement. House- 
hold and village constitute the organizational environment of the in- 
dividual. Associations for blood revenge, cultic activities, and defense 
provide police, sacral and political protection, but nothing historically 
certain can be established about the functional division or overlap of 
these early associations which come out of prehistory. Free members 
share in the landed property; the extent of slavery seems to be moderate. 
Political chieftains, if they exist at all, have mainly arbitrational func- 
tions. "It depends on the political situation whether there are any joint 
political affairs. "'" 

ii. A closer forerunner of the city is the castle controlled by an 
owner of land, slaves, cattle and precious metals, that is, a ruler with a 
persona] following. Almost nothing is known about the state of the 
countryside. The exploitation of the subjects seems to have varied 
greatly. Fertile land and trade profits led to the rise of these "castle 
kings"; their law was set against popular law. The separation of the 
followers from the rural population was important; according to tradition 
and fact, the following often consisted of bands of aliens and ad- 
venturers ("robber bands"). The ancient states originated in ■the victory 
of one "castle king" over others. 

in. Another approximation to the classic polis is the clan polity 
(Adelssiaat'). The nobility is made up of creditors who develop into a 
stratum of landed rentiers. The peasants become first debt serfs and 
then hereditary dependents. A group of noble families that have accumu- 
lated enough land and retainers to ^quip and train themselves as profes- 
sional warriors rules the countryside from an acropolis. The "king" loses 
influence and becomes primus inter pares in a militarily organized urban 
community (in contrast to the feudal-manorial development of the 

37. Ibid., 36. Weber deals here with the relatively "universal groups" to 
which he returned again below, in Part Two, chs. Ill— VI and VIII. 



LVI INTRODUCTION 

continental Middle Ages). There is no bureaucracy; at most there are 
elected officials. The peasants may be legally separate from the status 
group of free men, but ancient trial and debt procedures as well as the 
manipulation of the courts by the ruling class are sufficient to maintain 
the social distance without formal barriers. 

rv. From state n (the "casde kingship") development may proceed 
in a direction contrary to state hi: The king may succeed in effectively 
subordinating his following and in establishing an officialdom through 
which he governs the "subjects." In this case the city is not autonomous 
(witness Egypt, Assur and Babylon). The economy may approach "state 
socialism" or an exchange economy, depending on the mode of want 
satisfaction of- the royal household. Under condition in and iv the extent 
of the direct utilization of the labor force by the rulers is inversely cor- 
related with the development of the private exchange economy. Insofar 
as domination rests on taxation, free transfer of real estate may be 
tolerated. However, the bureaucratic king tends to oppose land accumu- 
lation by the aristocracy, whereas he may permit land fragmentation. 
Witness the Greek tyrants — and Napoleon I. 

v. With the rationalization of royal want satisfaction the bureau- 
cratic city or river kingdom may develop into the authoritarian liturgy 
state, which meets its demands through "an artful system of compulsory 
services and treats the subjects as mere objects." 18 Even in such a state 
there may be free trade and geographical mobility, as long as they pro- 
duce revenue. In fact, the state may favor both, in the manner of the 
"enlightened despotism" of the 17th and 18th century — another illus- 
trative analogy. 

vi. This type emerges from state hi, but not without the most 
heterogeneous transitions. It is the "polis of hoplites," in which the citi- 
zens form a heavily armed infantry. The rule of the noble kinship 
groups over the city and of the city over the countryside is broken. The 
citizens' army of hoplites comprises all owners of land; hence military 
service is relatively democratized. 

vii. The, democratic polis proper is a further development of condi- 
tion vi. Military service and even citizenship are emancipated from 
the requirement of landownership, and there is an inconsistent trend 
to formally qualify for office-holding everyone who has served in the 
navy, a military branch not requiring self-equipment. 

viii. A major case outside this typology is the association of peasants 
organized as hoplites, which in some instances made history, from ancient 
Israel to the medieval Swiss confederation. 

38. Ibid., 40. 



7\ 



A Political Typology of Antiquity 



LVII 



One important dimension cuts across this typology of military- 
political organization: "the manifest and latent struggle of the secular- 
political and the theocratic powers, a struggle that affects the whole 
structure of social life." 99 Functional specialization separated the primeval 
linkage of princely and priesdy power. The priests became powerful 
through their control of economic resources, their hold over the religious 
anxieties of the masses, their possession of %ady "science" and, espe- 
cially, their control of education in the bureaucratized states. This strug- 
gle led to the historical ups and downs of secularization and restoration 
in the "substantive development of culture," with usurpers ultimately 
striving for legitimacy and hence restoration. 

Thus did Weber assemble the elements that went into the making 
of his Sociology of Domination in Economy and Society: patrimonialism, 
feudalism, charisma (as military communism), the city and hierocracy. 
In sum, Weber's ancient and medieval studies contain not only much 
of the historical substance of the later work, but also its gradual con- 
ceptualization. 



8. Weber's Vision of the Future and His Academic Politics 

Weber did not hesitate to draw political- lessons from academic 
studies, but the relationship must be properly understood. He believed 
that scholars should unflinchingly face the arduous work of fact-finding 
and only then express political views. He insisted on detachment in 
order to gain a hearing for his views — the basic strategy in his academic 
politics. Sociology became for him a weapon in the struggle against the 
predominant views 1 in the Verein fUr Sozialpolitik and the founding of 
the German Sociological Association a vehicle for the same purpose. 
The two great issues, closely related, were the social dynamics and future 
of German society and the feasib&ty and desirability of value-neutrality 
in social science.* 

In warning of the political dangers he foresaw, Weber used his- 
torical parallels, although he rejected the use of analogies for historical 
explanation. Thus he appended one page of warnings to bis 1908 study of 
Antiquity in order to impress his readers with vivid parallels. Without 



$9. Ibid., 44. 

40. On the tensions between politic! and scholarship in the men of die 
V&rtm fur Sozu&poUtik, see Dieter Undenlaub, Richtungsktimpfe Jm Veran fUr 
Saxidp&tik. Wvsetuchaft und Sozialpolitik tin Kaiserreicb (Wiesbaden: Steiner, 
1967). This massive study will be the standard work on the politics of German 
academic men during the period; the present introduction was still written inde- 
pendendy of it 



L V 1 1 1 INTRODUCTION 

implying any historical inevitability he upheld — at least didactically — 
the maxim: "If it has happened before, it may happen again." At issue 
were the effects of bureaucratization : 

The paralysis of private economic initiative through bureaucracy is 
not limited to Antiquity. Every bureaucracy, including ours, has the 
same tendency by virtue of its expansionism. In Antiquity the policies 
of the city state paved the way for capitalism,- today capitalism is the 
pacemaker for the bureaucratization of. the economy. Let us imagine coal, 
iron and mining products, metallurgy, distilleries, sugar, tobacco, matches 
— in short, all mass products that are already highly cartellized — taken 
over by state-owned or state-controlled enterprises; let the crown domains, 
entailed estates, and state-controlled resettlement holdings (Rentertgwter) 
proliferate and let the "Kanitz motion" be passed and executed with all 
its consequences; 41 let all military and civilian needs of the state ad- 
ministration be met by state-operated workshops and cooperatives; let 
shipping operations on inland waterways be compelled to use state tugs 
[as partly realized in 1913], put the merchant marine under state super- 
vision, have all railroads etc. nationalized, and perhaps subject cotton 
imports to international agreements; let all these enterprises be man- 
aged in bureaucratic "order," introduce itate-supervised syndicates, and 
let the rest of the economy be regulated on the guild principle with 
innumerable certificates of competency, academic and otherwise; let the 
citizenry in general be of the rentier paisibl* type — then, under a mili- 
tarist-dynastic regime, the condition of the late Roman Empire will have 
been reached, albeit on a technologically more elaborate basis. After all, 
the German burgher of today has retained scarcely more of his ancestors' 
qualities from the medieval Town Leagues than the Athenean in ' 
Caesar's time had preserved those of the fighters at Marathon. "Order" 
is the motto of the German burgher — even, in most cases, if he calls 
himself a Social Democrat. It is very likely that the bureaucratization 
of society will one day subdue capitalism just as it did in Antiquity. 
Then the "anarchy of production" will be replaced by that "order" 
which, in a ?ery similar way, characterized the late Roman Empire and, 
even more, the New Kingdom and the rule of the Ptolemies in Egypt. 
Let no one believe that the citizens' service in a barracked army, bureau- 
cratically equipped, clothed, fed, drilled and commanded, can provide a 
countervailing force to such bureaucratization or, more generally, that 

41. Rentenguter were small holdings, indivisible and inalienable except with 
government permission, created for the "inner colonization" (Germanics (km) of 
the eastern part of the Reich, first under the Prussian resettlement act of 1 886. — 
Count Kanitz, a Conservative Reichsteg deputy, in 1894 demanded the institution 
of a state monopoly for grain imports in the interest of price supports for the out- 
put of the grain-producing Junker estates of eastern Germany The so-called 
"Kanitz motion" failed, but was thereafter resubmitted year after year by the 
agrarian groups. 



8] 



Vision of the Future and Academic Politics 



LIX 



modem conscription in dynastic states has any inner affinity with the 
spirit of the citizenry-in-anns of the distant past. However, these per- 
spectives do not belong here. 4 * 

It is, of course, significant that Weber added these perspectives, in 
spite of his disclaimer. In the fall of 1909 the Weber brothers, Max and 
Alfred, clashed with an older generation of scholars at the Vienna meet- 
ing of the Verein fur Sozudpolitik. Some younger members were critical 
of the state metaphysics of men like Gustav von Schmoller and were 
ready to go beyond their elders in matters of social reform, against them 
with regard to democratization. The two Webers attacked the belief of 
the older reform generation that strengthening the power of the state and 
extending the economic functions of its bureaucracy would lead to 
greater social harmony. Opposing the conservative State Socialism of the 
aged Adolf Wagner, they pointed to the dangers of bureaucratization. 
Economy and Society later demonstrated how the bureaucratic phe- 
nomenon could be studied comparatively in a non-ideological way. But 
at Vienna Weber expressed his sentiments and convictions, which 
should be seen not only as the counterpoint, but as one of the motives, 
for the Sociology of Domination. Weber granted to the older view of 
bureaucracy — perhaps in part as a tactical concession — that 

no machinery in the world functions so precisely as this apparatus of 
men and, moreover, so cheaply. . . . When the Verein fur Sozialfdlitik 
was founded [in 1872], the generation of Privy Councillor. Wagner 
called for more than purely technical yardsticks in economic affairs; at 
the time this group was just as small as we who think differently are 
today in relation to you. Gentlemen, you then had to fight the salvo 
of applause for the purely technological accomplishments o£ industrial 
mechanization emanating from the laissez-faire doctrine. It appears to roe 
that today you are in danger of providing such cheap applause to me- 
chanical efficiency as an administrative and political criterion. ... 
Rational calculation . . . reduces every worker to a cog in this [bureau- 
cratic] machine and, seeing himself in this light, he will merely ask 
how to transform himself from a little into a somewhat bigger cog, . . . 
an attitude you find, just as in the Egyptian papyri, increasingly among 
our civil servants and especially their successors, cur students. The 
passion for bureaucratization at this meeting drives us to despair. 41 

Weber was not opposed to the Verein fur SoztalppUtik as a propa- 
ganda association, as he called it, but its academic activities were unduly 
handicapped, he felt, by its ideological preoccupations. Hence, after the 

41. GAzSW, 2 7 7f. 
43. GAzSS, 4i 3 f. 



L X INTRODUCTION 

Vienna meeting, be proposed the founding of the German Sociological 
Association — to be an instrument of collective empirical research and 
"purely scientific discussions." In the winter of 1909/10 he suggested 
team projects on the press, voluntary associations, and the relationship of 
technology and culture. Weber apparently sustained most of the organiz- 
ing effort. It was soon clear that his colleagues resisted project coopera- 
tion and only hesitandy accepted organizational responsibilities. And 
some men whose academic careers had suffered because of their novel 
sociological interests, Weber noted with chagrin, viewed the association 
as compensation for status deprivation— he spoke of a salon des refused. 
The Sociological Association first met in the fall of 1910. Weber sum- 
marized the intent of the statutes: "Hie association rejects, in principle 
and definitely, all propaganda for action-oriented ideas from its midst." 
He immediately added that this had nothing to do with general non- 
partisanship or die "popular middle-of-the-road line"; rather, it meant 
studying "what is, why something is the way it is, for what historical and 
social -reasons."" Secondly, the association should not be an assembly 
of notables for whom membership in one or another committee was a 
matter of honor. Thirdly, the association should not engage in "empire- 
building" and arrogate to itself tasks better left to decentralized study. 

Sociology, then, was to be disciplined discourse and information 
gathering, but sociologists should be politically articulate. Weber wanted 
to separate the organizational setting for research from political action. 
In the fall of 1912 he attempted to organize men from the left wing of 
the Verein fur So&alpoUtik; a few met in Leipzig to arrange periodic 
meetings on the failures and the future of welfare legislation and social 
reform. Differences of opinion, however, proved too great and no further 
meetings took place.** 

At the second annual gathering of the German Sociological Associa- 
tion Weber pleaded once more for the raison d'itre of the association, 

44. VerhanMwtgen des Ersten Deutsche* Soziologentaget, Frankfurt, 19.- 
22. Okt 1 9 10 (Tflbingen: Mohr, 19 11), 39I. On die contrast between scientifi c 
assessment and ideological judgment and the need for a technical terminology, 
see also Friedricfa von GotttOtdilienfeU, Die Herrschaft des Wortet (Jena: 
Fischer, 1901). Weber esteemed this neglected work and acknowledged it in the 
prefatory note to Economy and Society. Gotd wax one of the first expositor! and 
defe nd er s of "jargon" in social science, that means, of terms removed from both 
common sense meanings and ideological preference. On the definition of value- 
neutrality (WerturteilsfreiheiO see Johannes Winckehnann's article in Historischet 
WSrterbuch der Philosophie (forthcoming). 

45. See Weber's post mortem circular to the participants dated Nov. 15, 191*1 
in Bemhard Schafer, ed., "Ein Rundschreiben Max Webers zur Sozialpolitik,'* 
Sortole Welt, XVIH, 1967,261-271. 



8] 



Vision of the Future and Academic Politics 



LXI 



"somber discussion" and the study of "questions of fact," since the habit 
of value judgment persisted As he later said: "Will the gendemen, none 
of whom can manage to hold back his subjective 'valuations,' all infi- 
nitely uninteresting to me, please stay with their kind. I am absolutely 
tired of appearing time and again as the Don Quixote of an allegedly 
unworkable approach and cf provoking embarrassing scenes." 4 ' 

This aggressive stand for detachment must be seen in the institu- 
tional context of the time. Weber especially abhorred the misuse of the 
rostrum for the indoctrination of the students, who could neither answer 
nor argue. '"The least tolerable of all prophecies is surely the professor's 
with its highly personal tinge." 47 However, many students indulged in 
"zoological nationalism." In that case Weber's postulate involved the 
attempt to face them with inconvenient facts. Weber also continued 
Mommsen's struggle for. a "science without presuppositions" — Momm- 
sen's war-cry against the repeated intrusion of religious criteria in aca- 
demic appointments. 

* Weber's advocacy of field and survey research, a crucial part of his 
notion of "value-neutral" fact-finding, 4 " put him ahead of most of his 
colleagues, but here he was also his own worst enemy. He was quite 
successful at raising funds and opening channels for the large-scale 
projects of the Sociological Association, yet he was not well-suited for the 
role of project or institute director who furthers research by diplomati- 
cally avoiding controversy with clients and colleagues. The press study 
did not materialize when Weber withdrew as director to avoid biassing 
the project: Early in 191 1 he had begun a lawsuit to force a newspaper 
to reveal a slanderous source, a move that made him controversial in 
some press circles. 4 * Weber was never content to be a mere student of 
law; in the nineties he had practiced law along with his teaching and 
writing. He considered the suit an honorable and pragmatic form of 
normatively controlled struggle—one of his major scholarly concerns. 

46. Marianne Weber, Lebensbitd, 430. 

47. Ibid., 33$. <* 

48. On the pioneering efforts of Weber and Tonnies, see Anthony R. Ober- 
sdull, Empirical Social Research in Germany, 1848— 191 4 (The Hague: Mouton, 
1965). Weber and Tonnies Stood firmly together in their advocacy of field and 
survey research. Tonnies strongly backed Weber's notion of value-neutral sociol- 
ogy against Troeltsch. See Ferdinand Tonnies, 'Troeltsch und die Philosophic 
dei CeschJchte," in his Soxiologtsche Studitn und Krittken (Jena: Fischer, 1926), 
4ioi. 

49. For Weber's explanation see Verhandlungpn des Zweiten Devtschen 
Soiioiogentagts, Berlin, 20.-22. Okt. 1912 (Tubingen: Mohr, 191 3}, 75ff. On 
the background of the suit, see below, p. 354, n. 6. 



L X 1 1 INTRODUCTION 

His willingness to fight openly, and to sue if necessary, in academic and 
personal affairs made him a highly inconvenient man and tended to 
impair his effectiveness as a,n organizer of academic enterprises, Weber 
persistendy criticized the corporate failings of the professorial estate. His 
articles and statements on academic improprieties, the general state of 
the universities and the need for university reform elicited the public 
counter-attack, at one time or another, of groups of professors and officials 
of the ministries of education."* In general, his intellectual, political and 
moral demands were beyond the capabilities of most of his colleagues. 
At any rate, in 1912 Weber withdrew completely from his executive 
duties in the Sociological Association: "I must return now to my sci- 
entific work. Things can't go on this way, I am the only one to sacrifice 
personal scholarly interests, yet I have achieved no more than the bare 
running of a coasting machine/'" The work to which he returned was 
Economy and Society. 



9. The Planning of Economy and Society 

Marianne Weber reminisced in her husband's biography that 
Economy and Society "unintendedly grew into the major work of his 
life."** The impetus came from Paul Siebeck, publisher of the famed 
Archiv fur Sozicdwissenschaft und Sozialpolitik, which Weber, Werner 
Sombart and Edgar jaffe had taken over in 1904. In 1909 Siebeck pro- 
posed to replace the outdated Handbuch der -poliHschen Oehonomie 
edited by Gustav Schonberg in the eighteen-eighties," which among two 
dozen contributions contained Schonberg's theory of economic stages 
(2nd ed., I, 25-45; criticized below on p. 117) and August Meitzen's 
rationale for agrarian research from a liberal point of view (2nd ed., II, 
149-224). Weber agreed to edit an entirely new series. However, the 
fact that this was a new venture did not prevent an acrimonious aca- 
demic row, when a young professor who had failed to find contributors 
for a revised edition qf the old handbook accused the publisher and, by 
implication, Weber of slighting the financial interests of Schonberg's 
impoverished heirs. Weber came to Siebeck's defense; the young man^ 
in rum, mobilized a group of older professors and threatened a public 

50. For an account, see Marianne Weber, Lebenibitd, 413-17, 430-56. 

51. Ibid., 429. 
51. Ibid., 425. 

53. Gustav Schonberg (ed.), Handbuch der Potitischen Oekanomie (2 vols.; 
Tubingen: Laupp, 1882; 2nd revised and enlarged ed. in 3 vols., 1885-86). 



p] 



The Planning of Economy and Society 



LXIII 



scandal, In the ensuing morality play Weber's acute sense of honor and 
propriety was once again engaged." 4 

The old handbook was limited to the traditional topics of political 
economy. Weber titled his series Outline of Social Economics (Grund- 
riss der Soztalokonomiky, the term, wider than "institutional economics" 
and less inclusive than "sociology," enabled him to encompass all rela- 
tionships of economy and society. He asked a number of men for con- 
tributions to be completed within two years. However, some failed in 
their promises, others produced disappointing manuscripts, still others 
were dismayed as their contributions were outdated by the resulting 
delays. The first volumes did not appear until 1914; then the war in- 
terrupted the venture. The series closed in 1 930 with more than a dozen 
volumes published. Among contributors well-known in the United 
States were Robert Michels, Werner Sombart, Joseph Schumpeter, Emil 
Lederer, Karl Bucher and Alfred Weber. Some tides in the series were: 
The Economy and the Science of Economics; Economic Theory; Econ- 
omy and Nature; Modern Capitalist Economy; Social Stratification 
Under Capitalism; Welfare Politics Under Capitalism; Foreign Trade 
and Trade Policies; there were also several volumes on primary, sec- 
ondary and tertiary industries. 

As the coordination troubles of the projected series mounted, Weber 
expanded his own contribution. Without this exigency, he might never 
have attempted a summa of his sociology, given his absorption in other 
interests and his conviction of the "futility of the idea . . - that it could 
he the goal of the cultural sciences, no matter how distant, to construct 
a closed system of concepts which can encompass and classify reality in 
some definitive manner and from which it can be deduced again." 5 * 
Now, however, he was motivated to attempt his own historically open 
systematization ; "Since it was impossible to find a substitute for some 
[promised but unwritten] contributions, I concluded that I should write 
a rather comprehensive sociological treatise, for the section on Economy 
and Society, to provide an equivalent presentation and to improve, the 
quality of the series. I had to sacrifice other projects much more impor- 
tant to me; in other circumstances I would never have taken on such a 
task." His wife saw through these complaints: "At last he was under 
the spell of a great unified task."** 

In his 1914 introduction to the series Weber spelled out the rationale 

54. Marianne Weber, Lebensbild, 446-453. 

55. GAzW, 184; cf. Shils arid Finch (eds.), Methodology . . . , 84. 

56. Marianne Weber, Lebensbild, 424. 



L X I V INTRODUCTION 

of the project: "The basic idea was to study economic development 
particularly as part of the general rationalization of life. In view of the 
systematic character of the work the addition of a general economic 
history has not been planned for the time being."" 

Tracing the historical lines of rationalization was certainly one of 
Weber's intentions in Economy and Society, as is also indicated by 
scattered remarks in the text (for example, below, 333). However, the 
work is not primarily a study in the rationalization and the "disenchant- 
ment" of the world,** In a letter of June 11, 1914, Weber explained to 
the redoubtable medievalist Georg von Below his specifically sociological 
intention: 

This winter I will probably begin with the printing of a fairly 
voluminous contribution to the Outline of Social Economics. I am deal- 
ing with the structure of the political organizations in a comparative 
and systematic manner, at the risk of falling under the anathema: 
"dilettantes compare." We are absolutely in accord that history should 
establish what is specific to, say, the medieval city; but this is possible 
only if we first find what ii missing in other cities (ancient, Chinese, 
Islamic). And so it is with everything else. It is the subsequent task of 
history to find a causal explanation for these specific traits, I cannot 
believe that ultimately you think otherwise; some of your remarks speak 
more for than against my assumption. Sociology, as I understand it, can 
perform this very modest preparatory work. In this endeavor, it is un- 
fortunately almost inevitable to give offense to the researcher who com- 
pletely masters one broad field, since it is, after all, impossible to be a 
specialist in oil areas. But this does not convince me of the scientific futility 
of such work. Even my hastily written essay on ancient agrarian history 
(in the Handwdrterhuch der Staatswissenschaften) has been useful, in- 
cluding those findings that have been superseded. This seems tome proven 

57. In Karl Biicher et al., Whtschaft und Whtschaftswissenschaft, Section I, 
Vol. 1 of Grundriss der Sozudoionomik (2nd ed.; Tubingen: Mohr, 1924), vii. 
Upon the urging of students, Weber turned to the task of a general economic 
history in the winter of 1919/20. This was^us last completed lecture course. 
After his death the lectures were reconstructed from student notes and published 
as Wirtschaftsgeschickte. Abriss der universale*! Sozial- und Wirtschaftsgeschichte 
(3rd ed.; Berlin: Duncker & Humblot, 1958), translated by Frank H. Knight as 
General Economic History (New York: Green beig, 1927). The Economic History 
suffers from various gaps; the English edition also omits the terminological intro- 
duction. The work makes easier reading than Economy and Society jnsofar as it 
treats phenomena such as the household, neighborhood, kin-group, village, and 
manor in greater historical continuity; it is inferior in terminological and syste- 
matic respects. 

58. For an interpretation merely along this line, see Gunter Abramowski, 
Das Geschichtsbild Max Webers. Universalgeschichte am Leitfaden des okzi- 
dentalen Rationalisiemngsprozesses (Stuttgart: Klett, 1966). 



9\ 



The Planning of Economy and Society 



LXV 



by the dissertations of Wile ken's pupils in Leipzig. But the essay was 
certainly no masterpiece. 5 ' 

In the same year — 1914 — Weber published a projected table of 
contents for the Outline of Social Economics, including a detailed plan 
for the manuscript (Part Two) he had written between 1910 and 1914 
— Part One was written years later. The table of contents shows that 
Section III of the Outline was titled "Economy and Society" and was 
to contain two parts, "The Evolution of Systems and Ideals in Economic 
Policy and Social Reform" by Eugen von Philippovich 60 and "The 
Economy and the Normative and De Facto Powers" (Die Wirtschaft 
und die gesellschaftlicken Ordnungen und Machte) by Weber. Econ- 
omy and Society is not, then, the original title of Weber's work. The 
title now used for Part Two of the work is the "true" one, if more 
cumbersome in English. However, its meaning is not obvious. Weber 
does not proceed from the national economy and its relation to society; 
rather he begins with social action, of which economic action is that 
rational case concerned with want-satisfaction under conditions of resource 
scarcity and a limited number of possible actions. The basic "economy" 
is the "household" in the archaic English sense; in common German 
parlance Wirtschaft may refer to a farm or an inn as well as to the 
national economy. 

The "normative and de facto powers" are the laws and conventions, 
on the one hand, and the groups that sustain them on the other. The 
relationship between the normative and the merely coercive, between 
legitimacy and force, is ever varying in the flux of ideal and material 
interests and the vicissitudes of power struggle. There are no his- 
torically effective ideas and ideals without social interests backing them, 
and force is rarely used without at least the semblance of a rationale 
before the staff and the subjects. The formulation of the title expresses 
these dual forces that impinge on the individual's social action. 

Weber's projected table of contents (of Part Two) compares with 
the chapters of the English edition (in parentheses) as follows: 01 

59. The letter is reprinted in the second edition of Georg von Below, Der 
deutsche Stoat des Mittehdters (Leipzig: Quelle und Meyer, 1925), xxiv. The 
dictum "dilettantes compare" was coined by Goethe and hurled by Heinrich 
Brunner against representatives of the comparative method (cf. ibid., 333). — 
Weber certainly addressed himself ad hominem, but more in emphasis than 
content. 

60. Published in Karl Bucher ex «!., op. tit., 126-183. 

6 1.. The table of contents, which was included in the early volumes of the 
Grutidriss der Soziddko-normk, is reprinted in Johannes Winckelmann, "Max 
Webers Opus Posthunmm," Zeitschrift fiir die gesamten Staatswissenschaftett, 
vol. 105, 1949, 37of. In this essay Winckelmann first proposed his reorganization 



L X V I INTRODUCTION 

i. Categories of the Varioas Forms of Social Order (part/)' contained 
in ch. I:i-2, but -mostly in "On Some Categories of Interpretive 
Sociology"; cf. Appendix I, below) 

The Most General Relationships Between Economy and Law 
(ch. I.4) 
The Economic Relationships of Organized Groups (ch. II) 

2. Household, Oikos and Enterprise (ch. IF) 

3. Neighborhood, Kin Group and Local Community (ch. II 

4. Ethnic Group Relationships (ch. V) 

5. Religious Groups 

The Class Basis of the Religions; Complex Religions and Eco- 
nomic Orientation (ch. VI) 

6. The Market (ch. VII) 

7. The Political Association (ch. IX) 

The Social Determinants of Legal Development (ch, VIII) 
Status Groups, Classes, Parties (ch. IX:6) 
The Nation (ch. IX; 5 ) 

8. Domination 

a) The Three Types of Legitimate Domination (ch, X-X1V) 

b) Political and Hierocratic Domination (ch. XV) 

c) Non -Legitimate Domination. The Typology of Cities (ch. 
XVI) 

d) The Development of the Modern State 

e) The Modern Political Parties 

Weber died in 1920 before finishing either Part Two or the later, 
Part One. The last two sections on the modern state and the modern 
political parties remained unwritten. Weber's table of contents of Part 
Two was not followed in the two editions undertaken by Marianne 
Weber and Melchior Palyi (1922 and 1915) and the reprint of 1947 
(third ed.). It was not until Johannes Winckelmann's edition of 1956 
(fourth ed.) that the intended structure of the manuscript was largely 
restored. 



zo. The Structure of Economy and Society 

The following remarks are not intended to summarize Economy and 
Society, but to elucidate some of Weber's underlying reasoning as well as 



of Wirtschaft und Gesellschaft. See also his introduction to the 1956 edition 
(_WuG, xi-xvii); the preface for the 1964 paperback edition (WwG-Studienaus- 
gahe, xv-xvi) indicates some further changes. 



io;I] 



Part Two: The Older Part 



LXVII 



some of the systematic connections among the chapters, irrespective of 
their length. Particular attention will be given to the previously untrans- 
lated chapters and sections and their relationship with the other parts. 



I. part two: the earlier part 



CH. I. THE ECONOMY AND SOCIAL NORMS: ON STAMMLER 

Most books have a foil as well as a model. They are written to criti- 
cize some books and emulate others. One visible starting point of 
Economy and Society is the attempt at a positive statement of what 
Rudolf Stammler "should have meant," as Weber put it in the prefatory 
note to his essay "On Some Categories of Interpretive Sociology" 
(i9i3),' !? This essay was part of a longer methodological introduction 
to the work and corresponds to the first section in the 1914 outline, 
"Categories of the Various Forms of Social Order," 

Like his friends Jellinek, Simmel and Sombart, Weber wrote a 
critique of Stammler's Economy and Law According to the Materialist 
Interpretation of History.'" Weber bluntly denied its "right to scientific 
existence,""* but his critique was not identical with his objections to 
historical materialism. Stammler, a neo-Kantian philosopher, claimed to 
have systematically deduced the feasibility of objectively correct social 
action and laid a new epistemological foundation for social science by 
demonstrating the identity of social ideal and social law. He discussed 
at great length the relations between legal and economic order and 
denied their causal relationship in favor of their correspondence as form 
and content, a position diametrically opposed to Weber's, who repeated 
in Economy and Society (below, 32,5ft". and 32L) that his critique was 
directed against (a) the confusion of the normative with the empirical 
'validity of an order, (b) the confusion of regularities of action due to 
normative orientation with merely factual regularities, (c) the contrast 
between convention and, law in terms of free will — as if conventions 

62. "Qber einige Kategorien der veistehenden Sozioiogie," Logos, IV, 1913, 
reprinted in GAzW, 427. See also below, p. 4. 

63. Cf. Rudolf Stammler, Wirtschaft und Recht tiach der materialist schen 
Geschichtsauftassung. Eine sozialpkilosophische Untersuchurtg (2nd improved 
ed,; Leipzig: Veit, 1906). For Stammler's definition of the task of the social 
sciences and a summary of his theory, see 5748. Weber spoke on the difference 
between Marx and Stammler at the 1910 meeting of the Sociological Association; 
cf. Verhandlungen des Ersten Deutschen Soziologentages, 96. 

64. "R. Stammler's 'Oberwindung' der materialistischen Geschichtsauffassung" 
(1907), reprinted in GAzW, 291. 



L XV III INTRODUCTION 

were not coercive — , and (d) the identification of law and convention as 
the "forms" of conduct as against its "substance." 

As a trained jurist and economist Weber was faced with both the 
normative orientation of jurisprudence and the ethical components of 
laissez-faire and state-socialist economics. He could develop a sociological 
approach only by insisting on the separation of the normative and the 
empirical, a separation accomplished with his theory of social action. In 
the essay on interpretive sociology and in Part Two of Economy and 
Society he defined social action just as he did later in Part One: subjec- 
tively meaningful action oriented to the behavior of others — it is called 
Gemeinschaftshandeln in the older part and soziales Handeln in the 
newer. Normatively regulated action is only one variant of social action. 
"Sociology, insofar as it is concerned with law, deals not with the 
logically correct 'objective' content of legal norms but with action for 
which, among other considerations, the ideas of men about the meaning 
and validity of certain regulations may play a significant role as both 
determinants and resultants."* 1 

Weber, elaborated a continuous typology of social action along the 
line of increasing rational control, persistence and legal compulsion. This 
typology — partly presented in Appendix I — ranges from mere consensual 
action (Einv'ersUindniskandeln) and ad hoc agreement (Gelegenheits- 
vergesellschaftung), through various kinds of regulated action and en- 
during association (Vergesellschaftung), to the organization (yerband) 
and compulsory institution (Anstalt). These kinds of action differ from 
behavior that is not social or borderline: Massenhandeln, which may be 1 
rendered "mass action," "statistically frequent action" or "collective 
behavior." 

In this scheme only men act, neither society nor individual groups. 
However, men acting in concert form groups (.Gemeinsckaften), and 
these persist only if they have a "constitution*' in the sociological sense, 
that »s, if their order is consensually accepted by members (or outsiders) 
for whatever reasons. Belief in legitimacy need not be the primary reason. 
Therefore, Weber deals in the first chapter with the consequences of 
the factual impact of law on economic conduct. 

The economic order is made up of the actual control over goods and 
services insofar as it is consensually recognized. Sociological economics, 
then, deals with the actions of men insofar as they are conditioned "by 
the necessity to take into account the facts of economic life." However, 
in st rumen tally rational action must also take into account the fact of 
law, defined empirically as "guaranteed law": A legal order exists when- 
ever an association is ready to enforce it. Weber makes it immediately 

65. GAzW, 440. Emphasis added. 



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Part Two: The Older Part 



LXIX 



clear that law is by no means in all cases "guaranteed" by violence 
CQewalt), and he rejects the view that "a state exists only if the 
coercive means of the political community are superior to all other 
communities" (below, 316). 

The two basic categories of an order — convention and law — Weber 
defines in close proximity to Sumner and in contrast to Stammler. Al- 
though conventions are not safeguarded by men (a staff or apparatus) 
specifically associated to uphold them, they can be enforced jus^ as 
effectively as law by psychological, and even physical, coercion on the 
part of the group members. Compliance with a conventional or legal 
order is frequently determined by a person's self-interest in the continua- 
tion of consensual action. Unreflecting habit is another universal reason 
for regular and regulated behavior. The beginnings of convention and 
law in habit, usage and custom lie in the realm of inaccessible prehistory. 
Yet, in view of these powers of persistence, the historian must be able to 
account for the innovating capacity of men. Rejecting older views of 
imitation, Weber prefers Hellpach's theory of innovation through in- 
spiration and empathy — an anticipation of the theory of charisma in 
chs. VI and XIV. 

Throughout his analysis, Weber combines his effort at terminological 
precision with an insistently realistic approach to human affairs: Men 
are creatures of habit, but they are also strongly motivated by their 
material and ideal interests to circumvent conventional and legal rules; 
in all societies the economically powerful tend to have a strong influence 
on the enactment and interpretation of the law. However, the presence 
of law, with its various forms of coercion, makes a great deal of difference 
for social action. On a general level more cannot be said. Here as else- 
where Weber carefully points out the limits of generalization: "The 
exteitf^of the^'law's factual impact on economic conduct cannot be 
determined generally, but must be calculated for each particular case." 



CH. II: ON MARX, MICHELS AND SOMBART 

Weber's emphasis on the limits of generalization has here a critical 
thrust directed against historical materialism and economic functionalism 
(below, 341). A" work on economy and society must sooner or later take 
a stand on historical materialism — Weber took his stand at the first ap- 
propriate moment. It would be wrong, however, to say that the critique 
of historical materialism occupies the dominant place in the work, above 
and beyond Weber's other polemical and positive interests. What may 
appear at first sight as "reaction" Jo, or "reflection" of, historical material- 
ism — such as Weber's interest in ancient capitalism — more often stands 
in a tradition of economic and legal history of which Marxism was an 



LXX 



INTRODUCTION 



extreme offshoot. Weber recognized historical materialism as a political 
force but did not take its ultimate claims seriously. About the time this 
chapter was written, he told his peers at the first meeting of the Socio- 
logical Association : 

I would like to protest the statement by one of the speakers that some 
one factor, be it technology or economy, can be the "ultimate" or "true" 
cause of another. If we look at the causal lines, we see them run, at one 
time, from technical to economic and political matters, at another from 
political to religious and economic ones, etc. There is no resting point. 
In my opinion, the view of historical materialism, frequently espoused, 
that the economic is in some sense the ultimate point in the chain of 
causes is completely finished as a scientific proposition. flB 

Weber also rejects economic functionalism insofar as it postulated an 
unambiguous interdependence of economic and non-economic elements. 
Not all social action is economically influenced, and not all groups are 
economically relevant. Culturally important groups, however, have some 
kind of relationship with economic elements; all persistent groups must 
in some way meet their wants. Weber presents a simple typology of 
economically active groups, ranging from economic groups proper, 
through various economically active groups and those merely influenced 
by economic factors, to regulatory group of a political, religious or other 
nature. 87 (In line with the reasoning in ch. I, regulatory groups belong 
into an economic typology of groups.) 

Although Weber gave attention to the technological factor in history, 
he related want satisfaction primarily to modes of appropriation and 
expropriation, not to modes of production. The crucial importance of 
appropriation appears at first sight as a "quasi-Marxist" position, but in 
fact is another difference from Marx. Weber saw the Marxist concept 
of the mode of production blurring the technological and economic 
aspects. He explained before the Sociological Association: 

To my knowledge, Marx has not defined technology. There are 
many things in Marx that not only appear contradictory but actually 
are found contrary to fact if we undertake a thorough and pedantic analy- 
sis, as indeed we must. Among other things, there is an oft-quoted passage : 
The hand-mill results in feudalism, the steam-mill in capitalism. That 
is a technological, not an economic construction, and as an assertion it 
is simply false, as we can clearly prove. For the age of the hand-mill, 
which extended up to modem times, had cultural "super-structures" of 
all conceivable kinds in all fields. es 

66. Verhandlungen des Ersten Deutsche-n Soziologentages, 101. 

67. In Part Two the economically active groups are called Getneinschaften, 
in Part One Verbande ( organizations). 

68. Verhandhmgen, of. cit., osf. The point is repeated below, 1091. 



ro 



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Part Two: The Older Part 



LXXI 



Such superstructures are related to modes of appropriation, which 
emerge from the competition for livelihood but also depend on the 
nature of an object, material or immaterial. Weber does accept the 
historical generalization that free property and acquired rights grew out 
of the gradual appropriation by group members of their shares in the 
group's holdings. Private property became important with the disintegra- 
tion of the old monopolist associations. It is a recurrent process in history 
that decreasing opportunities lead to monopolization; then legally privi- 
leged groups with privileged members (JWhtsgewosseK) and organs 
come into being. Weber lists the stages of the appropriation of oppor- 
tunities through external and internal closure. With fine nominalist 
irony lie mixes contemporary examples from Imperial Germany with 
historically early illustrations (below, 342). 

Once an organization has been established, the vested interests of the 
organs (functionaries, officials) tend to perpetuate or transform it beyond 
the original purpose. This phenomenon of institutionalization was a con- 
troversial point between Weber and his friend Robert Michels, who was 
just completing his Political Parties (191 i)."'- 1 Whereas Michels reified 
his observations into the "iron law of oligarchy" and thus stressed the 
sameness of the phenomena at issue, Weber pointed to the multiple, and 
often contradictory, consequences of institutionalization, which might 
lead to monopolization or expansionism (ch. 11:3). For Weber the 
greatest historical example for the expansionist tendency was the age- 
old connection of capitalist interests with imperialism. The expansionist 
tendencies of an organization couid, however, be restrained by monopo- 
list interests. In voluntary organizations the rational primary purpose 
might be overshadowed by "communal" goals if social action involved 
personal elements (below, 346), thus promoting closure and establishing 
social legitimacy. 

Irrespective of this dualism, most rationally organized groups must 
satisfy ,heir wants in one or more of the following ways: (1) the oikos; 
(2) market-oriented assessments; (3) production for the market; (4) 
maecenatic support; (5) contributions and services linked to positive and 
negative privileges (ch. 11:4). 

With this typology Weber completes the economic framework for 
the substantive theme that runs through all of Economy and Society: 
the preconditions and the rise of modern capitalism. Subsequently, this 

69. On the close intellectual relationship between Michels and Weber, see 
my The Social Democrats in Imperial Germany (Totowa, N.J.: Bedminster Press, 
1963), 249-157; cf. also Juan Linz, "Michels e il suo contributo alia sociologia 
politica," introduction to Roberto Michels, La Sociologia del Partito politico nella 
DemocTazia moderna (Bologna: I] Mulino, 1966), 7—1 iq. 



L X X I I INTRODUCTION 

problem is treated from several vantage points: the household and other 
relatively universal groups (chs. III-V), religion (ch. VI), law (ch. 
. VIII), political community (ch. IX), and the various kinds of rulership 
(chs. X-XVI). This underlying theme, however, does not determine 
the typological structure of the chapters; moreover, it is paralleled by the 
themes of rationalization in religion, law and politics. In view of the 
importance that Weber attributed to the political factor in his previous 
work, it is no surprise that his first historical explanation (ch. 11:5) 
concerns the way in which the fiscal and monetary policies of the modern 
states made possible the rise and persistence of capitalism. 

The issue of the origins of capitalism puts Economy and Society 
besides the work that apparently was both inspiration and foil: Werner 
Sombart's Modem Capitalism. 7 '' Its two massive volumes were published 
in 1902, shordy before Weber began writing "The Protestant Ethic 
and the Spirit of Capitalism." Sombart and Weber had been close allies 
since the mid-nineties. Weber unsuccessfully tried to have Sombart 
succeed him in Freiburg when he left for Heidelberg in 1897; in the 
reactionary nineties — the so-called Era Stumm — official resistance to 
Sombart was too strong. Both men shared a wide interest in the capitalist 
enterprise, the spirit of capitalism, social reform and the labor move- 
ment, and together they advocated the value-neutral approach in the 
Arckiv jiir Sozialwissenschaft. Sombart was the more flamboyant of the 
two and proved to be more mercurial. On the one hand, he demanded 
"facts, facts, facts — this admonition rang in my ears all the time I was 
writing the book." On the other, he also tried to explain them from 
ultimate causes: "What separates me From Schmoller and his school is 
the constructive element in the ordering of the material, the radical 
postulate of a uniform explanation from last causes, the reconstruction 
of all historical phenomena as a social system, in short, what I call the 
specifically theoretical. I also might say: Karl Marx." 71 

This was not much more than a rhetorical declaration exaggerating 
the difference from his former teacher Schmoller. The work failed to 
link the many facts with its postulate and showed that Sombart was 

70. Werner Sombart, Der moderne Kapitalismus, vol. I: Die Genesis des 
Kapitalismus, vol. II: Die Theorie der kttpitalistischen EntwiMung (Leipzig: 
Duncker & Humblot, 1902). Vol. Ill appeared much later as Das Wirtschaftsle- 
ben im Zeitalter des Hochfatpitalismus (.Munich: Duncker & Humblot, 1927). 
For Talcott Parsons' interpretation of Sombart's relation to Marx, on the one 
hand, and to Weber on the other, see his Structure of Social Action (Glencoe, HI. : 
The Free Press, 1949), 495-499, and "Capitalism in Recent German Literature: 
Sombart and Weber," Journal of Political Economy, vol. 36, 1928, 641-661, and 
vol. 37, 1929, 31—51. Parsons, however, does not deal with the question of the 
extent to which Weber's writings were a direct response to Sombart. 

71. Sombart, op. cit., I, xii and xxix. 



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LXXIII 



already far removed from Marxism, if he ever Was an orthodox Marxist. 
At any rate, Weber did not consider the postulate feasible, but he was 
interested in Sombart's facts and decided to approach them through 
systematic comparative study. Since this involved a methodological dif- 
ference, it was more than a mere sensible division of labor. 72 Sombart 
contrasted the traditionalist orientation of craft production with the 
spirit of capitalism, which to both men appeared very different from the 
universal desire for wealth. This spirit was a peculiarly Luropean phe- 
nomenon, but Sombart barely hinted at the comparative perspective: 
"A glance at other major civilizations, such as the Chinese, Indian, or 
ancient American, is enough to prove, in this regard too, the insufficiency 
of the view that the genesis of modern capitalism can be explained from 
a 'general law of development' of the human economy," 73 W! Jre Som- 
bart merely glanced, Weber proceeded to the comparisons of Economy 
and Society and, immediately afterwards, the studies of China, India 
and ancient Judaism. 



CHS. III-V: THE RELATIVELY UNIVERSAL GROUPS 

At the beginning of ch. III Weber limits his use of the term "soc ; "ty" 
to "the general kinds of human groups." He intends to deal with econ- 
omy and society in this sense, not with economy and Kultur — literature, 
art, science. The first groups to be treated are relatively universal — house- 
hold, neighborhood, kin group, ethnic group, religious group, political 
community — ; in other words, they are found at various levels of his- 
torical development. The "developmental forms" of these groups are 
taken up in the Sociology of Domination. The treatment of the more 
basic forms is intentionally brief, in part because Weber is primarily 
interested in the more differentiated associations and their relationship to 
religion, law and politics, in part, presumably, because Marianne Weber 
had dealt with some of the subject matter at length in her work on 
■Wife and Mother in Legal Development (1907). Weber limits himself 
to a series of points that either have polemical value or prepare the 
later exposition. His critical targets are evolutionary conceptions, espe- 
cially the theory of matriarchy and the related socialist theory of family, 
property and the state (Engels and Bebel); the neighborhood senti- 
mentalism of agrarian romantics; Gierke's notion of the kin group as the 
first political association; and racist and nationalist ideas. Against the 
Romanticist notions of those mourning the passing of Community, but 
also against the apostles of Progress, Weber endeavors to show that 

72. Cf. Parsons, "Capitalism . . . ," loc. cit., 31, 50. 

73. Sombart, op. cit., I, 379. 



L X X 1 V INTRODUCTION 

» 

"communal" and rationalist, capitalist and communist, traditionalist and 
modernist elements appear in ever new combinations — in short, that 
history is not the progression From Gemeinschaft to Gesellschaft. 

Positively, Weber points out: The household is the original locus of 
patriarchal rulership and the capitalist enterprise; the neighborhood is 
an unsentimental economic brotherhood; the kin group is the protective 
counter-force to the authoritarian household; ethnic groups are not 
groups, strictly speaking, but propensities for, or residues of, group 
formation. Weber particularly stresses the pluralism of group affiliation 
in relatively undeveloped societies before the emerging political com- 
munity gradually monopolizes the use of force — contrary to the view that 
modern society is more pluralist than traditionalist society in this respect. 

Weber sees no evidence for a universal stage of matriarchy, He 
explains maternal groupings as a result of military separation of the 
males from the household. This separation produces the men's house, 
which nowadays appears in residual form in army barracks and student 
dormitories — Weber likes to move back and forth, often with ironic 
undertones, between the ancient origin of a phenomenon and its sur- 
vival into modern times, The patriarchal household emerges with the 
military dispersion of warriors in the countryside. In dealing with polyg- 
amy and monogamy Weber provides a specifically economic, non- 
romantic explanation. Monogamy suited the household of the emergent 
urban patriciate; only later did Christianity raise it to an ethical level. 
With the dowry the calculative spirit entered the domestic communism 
of the family. This spirit reached a high point with the rise of the 
capitalist family enterprise. The legal forms of early modem capitalism 
originated in part in the communistic household, as Weber had already 
shown in his dissertation. The enterprise was eventually separated from 
the household, but Weber points to an historical twist: a "later" eco- 
nomic stage, such as capitalism, may perpetuate or recreate an "earlier" 
(communistic) family structure in which the extended family remains 
a unit: "Beyond the balance sheet, those lucky enough to participate 
enter the realm of equality and brotherhood" (below, 360) — a reference 
to the communist slogan. Here Weber takes obvious pleasure in outdoing 
the dialectic of historical materialism. His general point is that the 
household and domestic authority are relatively independent of eco- 
nomic conditions; in fact, they often shape economic relationships be- 
cause of their historically developed structure. Weber believed that the 
contractual regulation of household relations was a peculiarly Occidental 
phenomenon. Only in Europe did the household create out of itself the 
capitalist enterprise; elsewhere it developed into the oikos, the economic 
basis of patrimonial domination. 



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LXXV 



Households are related to one another through neighborliness in an 
uhpathetic, economic sense. The neighbor is the typical helper in need. 
Thus, neighborliness is not restricted to social equals, but customary 
hejp rendered by social inferiors may gradually turn into manorial serv- 
iced The neighborhood may become an economic group proper or an 
SKtonomically regulatory group, but even in the self-sufficient economy 
of early times there is no necessary identity between neighborhood and 
other associations. Only in the case of joint political action can the 
neighborhood develop into a local community. 

The kin group is usually not an extension of the household but a 
protective group guaranteeing the security and legal protection of the in- 
dividual. Collective self-help is the most typical means for the defense 
of its interests. The oldest trial procedures originate in compulsory ar- 
bitration within, and between, kin groups. Insofar as kin groups do not 
have a head with powers of command and a staff, they are not organiza- 
tions in Weber's sense. Through their regulation of marriage and lineage 
relations kin groups may effectively curb domestic authority. Similarly, 
the property laws of the great empires steadily weaken unlimited patri- 
archal power, but because of the very predominance of patriarchalism — 
another dialectical feature of historical development. Kin groups may 
oppose political associations and cross the boundaries of political com- 
munities. They tend to become associations only when economic condi- 
tions make it desirable to erect monopolies against outsiders. 

Race and ethnicity are familiar devices for the monopolist protection 
of interests. Weber doubts the sociological utility of both concepts if 
understood in a naturalistic way. He insists that, regardless of the out- 
come of genetic research, social behavior must be interpreted primarily 
in social terms. Ethnic membership derives from some consciousness of 
kind due to common customs, common language and common historical 
experiences. It may be the product of political association and may re- 
main after the group has dissolved politically. The cultural and political 
importance of ethnicity rests on the fact that the sense of ethnic honor 
is a specific honor of the masses and, in the extreme, leads to the notion 
of the chosen people. 

Weber's sketch of nationality and cultural prestige (ch. V:4) illum- 
inates the political situation of Central Europe before the first World 
War. The section is closely linked to the chapter on the political com- 
munities (ch. IX). However, Weber had one more major universal 
group to deal with: the religious Gemeinschaft. In theoretical com- 
plexity, originality and sheer size the chapter on religious groups was 
bound to transcend the preceding chapters. 



L X X V I INTRODUCTION 

CH. VI : THE SOCIOLOGY OF RELIGION 

In 1902 Sombart touched on the impact of Calvinism and Quakerism 
on capitalist development and noted that it was "too well-known a fact 
to require detailed explanation."'* Weber, far from being deterred by this 
dismissal, proceeded to state more fully the' case for the Protestant 
ethic's impact on the spirit of capitalism." He may also have been 
prompted by Schmoller, who in a masterful review of Sombart, his most 
exasperating pupil, observed : 

Whatever Marx and the Social Democrats have against the capitalist — 
the "hunger for profit" and the un trammeled ruthlessness toward the 
worker's welfare — concerns primarily the manner in which the indi- 
vidualist drive for acquisition developed between 1500 and 1900 and cut 
itself loose from most earlier moral and social restraints. These phenom- 
ena must be investigated if one wants to understand today's economy.'* 

If it is unclear whether Schmoller's suggestion really was a major 
factor in Weber's decision to write the "Protestant Ethic and the Spirit 
of Capitalism," it can be stated affirmatively that the relationship be- 
tween Calvinism and capitalism had been an "intern^" academic issue 
for some time and that Weber wrote in response to other studies, and 

74. Sombart, op. cit., I, 381. 

75. Weber seated the major differences between Sombart's approach and his 
own in the 1910 re-issue of "Die J Protestantische Ethik una der Geist des 
Kapitalismus," GAzRS, I (1920), 34; for other references to Sombart see ibid., 
5, 21, 33, 38 et passim; these include his replies to Sombart's later critiques. 
Weber explained: "Although the essays go back, in all important respects, to 
much earlier studies of mine, I need scarcely emphasize how much their presenta- 
tion owes to the mere existence of Sombart's substantial works, with their pointed 
formulations, even — and especially — where they diverge from them" (tfcia., 41). 
In his last anti-critique Weber mentioned that he had presented some of his ideas 
on the Protestant ethic in his courses at the University of Heidelberg in 1 897/98. 
See "Antikritisches zum 'Geist' des Kapitalismus," AfS, XXX, 1910, 177. 

76. Gustav Schmoller on Sombart in his ]ahrbuch fur Gesetzgebung, Ver- 
■waltung und Volkswiftschaft, vol. 27, 1903, 298; cf. Lindenlaub, Richtwngs- 
hampfc . . , , op. ctt., 287. It is true that Webet did not recognize Schmoller, 
the most powerful figure in the Verem fiir Sozialpolitik, as one of his teachers 
and openly disagreed with him in political matters, but this may have been mote 
of an additional incentive than a hindrance to prove to him what could be done 
in this regard. In fact, Schmoller later worked Weber's findings into his Grundrhs 
der allgetneinen V olkswirtsckaftslehre (Leipzig: Duncker & Humblot, 1908). 
Marianne Weber believed that Weber had started the first essay on the Protestant 
ethic ". . . in 1903, probably in the second half, just after finishing the first part 
of his treatise on Roscher and Knies" (Lebenshild, 340). Schmoller published 
Weber's treatise on "Roscher and Knies and the Logical Problems of Historical 
Economics" in his Jahrbuch in the fourth issue of the 1903 volume, having re- 
viewed Sombart ir. the first issue. 



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LXXVII 



not just against historical materialism as has sometimes been suggested 
in spite of his own denial at the end of the work." Weber acknowledged 
particularly the earlier work of three colleagues: Eberhard Gothein's 
monumental study modestly en tided Economic History of the Black 
Forest, Werner Wittich's "tremendously perceptive remarks" on religious 
differences between France and Germany, and Georg JeJlinek's "proof 
of religious traces in the genesis of the Rights of Man . . . which gave 
me a crucial stimulus ... to investigate the impact of religion in areas 
where one might not otherwise look." 7 ? 

The publication or the two essa*ys on the Protestant ethic in the 
Archtv fiir Sozialwissenschaft itv 1904/5 was an instantaneous literary 
success and almost immediately led to the controversy that has since con- 
tinued unabated. The exchange of antiques and anti-critiques between 
Weber and his adversaries lasted mttil 1910.™ Weber considered the 
exchanges "pretty unrewarding" and. decided on another positive state- 
ment, which became the present chapter. He left the historical treatment 
of Protestantism to his friend Brnifc Troeltsch, who was (hen working 
on The Social Teachings of the Christian Churches and Sects, 80 and 
instead put the theme m a compwative perspective. Yet neither the, 
"underlying" issue of the rise of capitalism nor that of rationalization 
and secularization over the ages determines the structure of the So- 
ciology of Religion; it is built, rather, around the relation of religions to 

77. For example, Parsons has written that "the essay was intended to be a 
refutation of the Marxian thesis in a particular historical case." However, WebeA 
general theoretical interest in the critique of historical materialism should not be 
equated with his reasons for writing the essays at that time. Cf. Parsons, 
"Capitalism . . . ," loc. cit., 40. 

78. Cf. Eberhard Gothein, Wirtschaftsgesckichte des Schwarzwahtes (Strass- 
burg; Triibner, 1892), 674; Werner Wittich, Deutsche und franzQsische Kultur 
im Elsass (Strassburg: Schlesier & Schweikhardt, 1900), 18-31 (the quote is from 
GAzHS, 1, 2 Si cf. below, 396); Georg Jellinek, Die Erklarvng der Me*schen~ und 
Bitrgerrechte (Leipzig: Duncker & Humblot, 1895; and ed., 1904), passim (cf. 
below, 1209) — the quote is from Weber's memorial address on Jellinek (Rene 
Konig and Johannes Winckelmann, eds„ Max Weber turn Gedachtnis [Koln: 
Westdeutscher Verlag, 1963], 15). — On the general familiarity of the 18th and 
19th-century literature with the relationship between religious distant and eco- 
nomic motivation, Protestantism and capitalism, see Reinhard Bendix, "The 
Protestant Ethic — Revisited," in Comparative Studies in Society and History, 
IX:3, 1967, 266-273. 

79. For an account, see Ephraim Fischoff, "The Protestant Ethic and the 
Spirit of Capitalism; The History of a Controversy." Social Research, XI, 1944. 

51-77. 

80. Em st Troeltsch, Die Soziallehren der christlichen Kircfeew und Gruff en 
(Tubingen-. Mohr, 1912), in part published earlier in the form of articles in 
AfS, 1908-10; trsl. by O. Wyon (London: Allen & Unwin, 1931). 



L X X V I 1 1 INTRODUCTION 

thptr organizational carrieis (functionaries), to the status groups and 
classes supporting them, and to their inherent theological elaboration. 
Wdber took the general functions of religion, whether in a Durkheimian 
or a Marxist sense, for granted. With his customary realism, he stressed 
the compensatory functions of religion and, even more, the political uses 
r of religion for legitimation and pacification. In a limited way, it is pos- 
sible to see his sociology of religion as a vast paraphrase of Marx's 
dictum that "religion is the sigh of a creature in distress, the heart of a 
heartless world, the spirit of times without spirit. It is the opiate of the 
people." 81 But there is an important difference: Weber had a much more 
profound sense than Marx for the meaning of ethical conduct. The 
religiotrs polemics oPEngels, August Bebel and Karl Kautsky appeared 
to him as shallow rationalism. Possibly, Weber was familiar with Engels' 
fleeting remarks on Calvinism: "Where Luther failed, Calvin triumphed. 
His dogma was adapted to the most daring of the bourgeois. His doctrine 
of predestination was the religious expression of the fact that in the 
commercial world of competition success or bankruptcy depend not on 
the enterprise or skill of the individual but on circumstances independent 
of him.""* At any rate, the "Protestant Ethic and the Spirit of Capitalism" 
reversed this materialist interpretation without substituting a mere 
spiritualist one. Behind the divergent perspectives of Weber and the 
Marxists was a personal difference: The Marxists were psychologically 
unable to take religion seriously enough to undertake his kind of study. 
Weber called himself "unmusical" in matters religious — this gave him 
the necessary analytical distance — , but he lived in an extended family in 
which the women were devout and articulate believers. With his strong 
family sense, Weber could have disdained religion only at the price of 
offending those closest to him — this gave him the requisite empathy for 
the study of religion.** 

For systematic reasons, ch, VI begins with a brief treatment of 
primitive religion and the original this-worldly orientation of magical 
and religious action (sees, *-»)-** Weber quickly sketches the rise of 
functional, local and, finally, universalis! and monotheist conceptions of 
deity. As in the preceding chapters, his ethnographic examples are occa- 
sionally doubtful or erroneous, or a statement may suffer from the 
telescoping of historical events over millennia, or the love of paradox 

81. Karl Marx, "Zur Kririk der Hegelschen Rechtsphilosophie," in Die 
Friihschriften (Stuttgart; Kroner, 1953), 208. 

82. Friedrich Engels, English introduction to Socwf-'w* Utopian and Scientific 
(London 1892), published in German in Neue Ze.it, XI: 1-2, 1892/93; Marx/ 
Engels, Werke (Berlin: Dietz, 1963), vol. 22, 300. 

83. Cf. Marianne Weber, LebentbiU, 27, 84, 88, 9if, 35 if. 

84. For an explanation of Weber's intention, see below, 421, n. 1. 



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Part Two: The Older Pan 



LXXIX 



carries him to an extreme. When he comes to the rationalization of con- 
duct through ethical and exemplary prophecy (sees, nt-jv), Weber 
strikes out on his own. Budding on Hamack's typology, he isolates the 
features peculiar to the prophet through a comparison with magicians, 
lawgivers, teachers of ethics and mystagogues. Prophets and priests 
organize the permanent association of laymen: the congregation. Proph- 
ets develop preaching and pastoral care, priests the dogmata and the 
canonical writings. 

After thus dealing with the religious leaders and the associations 
created by them Weber rums to an examination of all major-social strata 
and their affinity to religion (sees. v-vi). This provides a comparative 
frame for assessing the Puritan bourgeoisie, but in the context of the 
present work it also prepares the treatment of aristocratic and bureau- 
cratic rulership, the role of the intelligentsia, and the themes of bureauc- 
ratization and democratization. Aristocrats tend toward irreligion, unless 
they are warriors for the faith, an historically important, but transitional 
, phenomenon. Bureaucrats are inclined toward a formalistic religion or 
philosophy, while permitting less complex magical beliefs among the 
masses for the sake of "mass domestication." The urban bourgeois, even 
though concerned with economic rationality, tends to be more religious 
than the aristocrat and bureaucrat. In fact, the rationalist piety of 
bourgeois believers is a step on the road that ultimately led to the 
Protestant ethic. Non-privileged strata have powerful needs for salva- 
tion, but they may find primarily passive or purely affective expression. 
Weber goes down the social ladder from the craftsmen's piety, so im- 
portant in early Christianity, to the religious disinclinations of slaves, 
day laborers and the modem proletariat. Peasants are traditionally con- 
cerned not with salvation but with the practical, magical effects of re- 
ligion, even though in modem times the rural population is a mainstay 
of Christian conservatism. Salvation religions, usually the creation of 
intellectuals of higher social rank, can devolve into the creed of non- 
privileged strata, changing their function from legitimation to compen- 
sation. Pariah peoples tend to develop an intense religious attachment 
— Judaism being the historically decisive case. 

After this tour de force in the sociology of knowledge Weber balances 
his analysis of status tendencies with an investigation of religious in- 
tellectualjsm (sees. vii-xi'). Intellectuals of diverse status elaborate re- 
ligions on logical and theological grounds. Status differences may recede 
in the face of changing political fortunes; an important case is the 
escapism of intellectuals of politically declining strata or defeated com- 
munities. Conversely, nativist lower-class intellectuals may turn against 
the intellectualism of higher strata, as it happened in Judaism and early 



L X X X INTRODUCTION 

Christianity vis-a-vis Hellenized intellectuals. Weber carries his analysis 
up to his own time, ending with secular salvation ideologies and some 
biting remarks on cafe-house intellectuals (sec. v«;8). 

The last part (sees, xii—xv^ examines the influence of religious ethics 
on the "world": the sphere of the economic, political, artistic, and sexual. 
The last extant section breaks off with yet another attempt to contrast 
Jewish rationalism, Puritan asceticism, Islamic this-workliiness. Buddhist 
other-worldliness and Jesus' indifference to the world — all with a look 
back toward "The Protestant Ethic," but also in anticipation of tlu: sub- 
sequent large-scale studies of the great world religions, to which Weber 
turned without completing Part Two of Economy and Society. 

CM. VII. THE MARKET: ITS IMPERSONALITY AND ETHIC 

The chapter on the market — another group (Gemeinsckafi) in 
Weber's terminology — logically follows the treatment of religion. The 
economically rationalized, hence ethically irrational, character of pure 
market relationships is basically irreconcilable with ethical religion — 
with the historic exception of Calvinism. Whereas Weber gave much 
attention to the chapter on religion, his market chapter is only a brief 
sketch. Unlike the sociology of religion, the market was a topic tf ; 
could be handled by many other men. Perhaps Weber postponed writing 
the chapter because he waited for other contributions to the series, the 
better to coordinate the various expositions. In any case, the fragment he 
did write was sufficient to distinguish the market (Marktgemeinschaft 
or Marktvergemeinschaftung) from the more "natural" groups and the 
political community. The market is the Gemeintchaft based on the most 
rational kind of social action: association (Vergesellschaftung) through 
exchange. The association may last only for the duration of the exchange, 
or it may develop into a continuous relationship. 

In early history the market was the only peaceful relationship of 
men who were not linked through household, kinship or tribal ties. The 
participants were strangers, "enemies" who did not expect action in ac- 
cordance with an ethic of brotherhood. The "community" of the mark' i 
is the most impersonal group, but not because it involves struggle 
(Kampf) between opposed interests — there is struggle also in the most 
intimate relationships; rather, the market is the more impersonal, the 
more the struggle of the participants is oriented merely to actual or 
potential exchanges. In this manner the market is the exact opposite of 
any association (VeTgesellschaftung) based on a formal order, volun- 
tary or imposed. Even so, neither the use of money nor the irpp-isoiialiLy 
of exchange prevent the eventual rise of a market ethic binding on those 



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Part Two: The Older Part 



LXXXI 



who continually trade- Such exchange partners develop expectations of 
reciprocity which make rhiirn abide by the rules. Occasional traders are 
most likely to ignore the maxim that "honesty is the best policy"; Weber 
sarcastically cites aristocratic cavalry officers trading horses — a familiar 
current example is the private sale of automobiles. One aspect of the 
market ethic is die fixed price, a peculiarly European phenomenon that 
became one of the preconditions of modern capitalism. 

The market proved destructive to many status monopolies of the past. 
Yet the very success of capitalist interests on the free market led to new 
monopolies based either on political alliances or sheer superiority over 
competitors. As markets increased in importance, religious and political 
associations moved to protect them for reasons of their own. This brings 
Weber to the organizations concerned with legal regulation. 



CH. VIII, THE SOCIOLOGY OF LAW 

The Sociology of Law gives historical depth to the introductory state- 
ment on convention and law (ch. I). 85 After the earlier methodological 
critique of Stammler's approach W 7 eber now demonstrates what a so- 
ciology of law should be, in contrast 1 to legal philosophy, jurisprudence, 
and mere legal history. The chapter provides a typological setting within 
which a given legal phenomenon can be located, not with regard to any 
systematically or dogmatically proper placement but for the sake of his- 
torical explanation. The impact of Roman law and common law on the 
rise or capitalism constitutes one link with the overall theme of Economy 
and Society; another is the varieties of rationalization, which may be 
mutually incompatible. The chapter is also constructed with a view to 
the frequently mentioned Sociology of Domination: Here Weber treats 
the creation and administration of law by political and other associations, 

8;. Chs. I and VIII are die only sections of Wirtschaft und Gesellschaft that 
could be compared with the original manuscript. Marianne Weber put these 
.chapters in an envelope marked "Sociology of Law" — ch- VIII had no manuscript 
title — and presented them as a gift to Karl Loewenstein, whom they accompanied 
into exile, thus escaping the fate of the rest of the manuscript. On the basis of 
this original, now at the Max Weber Institute in Munich, Johannes Winckel- 
mann prepared a definitive edition — although Weber's almost ille^Me hand- 
writing leaves some passages doubtful — of the two chapters; see Recntssoziologie 
(2nd ed.; Neuwied: Luchterhand, 1967). The text now differs considerably from 
that in the igz$ edition of Wirtschaft und Gesellschaft, on which the Rheinstein- 
Shi Is translation of the Sociology of Law was based. The changes involve not 
merely many printing errors, but also the sequence of sections and terminological 
clarifications, For example, the category of the "coercive contract" (Zwangsion- 
trakO turned out to be a misreading of Zweckkontrakt, which (in sec- tO con- 
trasts with Statu&kontrakt, a distinction related to Henry Sumner Maine's A&K&ent 
Law (i860- 



L X X X 1 1 INTRODUCTION 

there the ruler's legitimation, organizational power and motives for im- 
posing law. 

If Weber was a self-made scholar in affairs religious, he was on 
academic homeground in the Sociology of Law. Not only do legal topics 
of his dissertation and Habilitation of two decades before appear, but so 
does much of the later literature. Even as Weber broadened his intellec- 
tual concerns, he retained an active interest in legal studies. His ability 
to write the Sociology of Law as a legal historian makes this the most 
difficult chapter for the legal layman and mere sociologist, for whom it 
may be helpful to perceive the broad structural parallels with the So- 
ciology of Religion." 1 The substitution of legal for religious topics yields 
the following rough oudine: the basic categories of public and private 
law; the development of contracts and of juristic personality; early forms 
of law administered by non-political associations; an occupational typol- 
ogy ,of "specialists," ranging from charismatic law prophets to legal 
honoratiores and university-trained judges; a typology of various forms of 
legal training; the historical systems of theocratic and secular law; a 
comparison of Indian, Islamic, Persian, Jewish, Canon and Roman law, 
the great codifications; the revolutionary power of natural law; formal 
and 'substantive rationalization and the ineradicable tension between 
formal and substantive justice; finally, the irrationalist trends at the eve 
of the first World War, with their "characteristic reaction" to formal ra- 
tionality and the dominance of legal experts — paralleling the fashion of 
surrogate religions in intellectual circles and the "romantic game of 
-syndicalism." Here Weber continues the sociology of intellectuals with 
an examination of their propensity for substantive justice, on the one 
hand, and skepticism on the other; he points to another historical 
dialectic: 19th-century socialist intellectuals first advanced substantive 
natural law against the formalist natural law of the bourgeoisie and then 
undermined their own position through positivistic relativism and 
Marxi: . evolu inism. ,/r 

The gradual ascendancy of stateHaw over the law of the other groups 
is part of the larger theme of the rise of the political community. Weber 
follows juridical usage when he makes the existence of a legal order 
dependent on a stiff ready to resort to physical or psychic coercion, and 
when he defines ifce modern political community — the state — in terms 
of its monopoly on the legal use of force. As a sociologist, however, he is 

86. fat fettAtpKtfttkns of the Sociology of Law by jurists, see the introduc- 
tion* by R it e uat a Ut (M«* W*b*r on Law in Economy and Soctrty, 1954, xxv- 
bori) sad Wmckrlnwim (Ruhtssozichpe, 1967, 15-49); "i» Kan" Engisch, 



"Max Weber sb Rechtsphflowph und alt Rcchtswziologe," in K. Engirt, B. 
Pfister xai J WhffM"'""! eds., Max W«ben G*d4cktni$tchrift d*r Ludvrig- 
Mttfettilums-Untwrsfeft Mtinchen (Berlin: Duncker & Hurablot, 1966), 67-88. 



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Part Two: The Older Part 



LXXXIII 



equally concerned with the extent to which this claim is de facto limited 
in the modem state, where conventional and religious sanctions continue 
to be powerful. Weber remembered as one of his youthful lessons the 
inability of the mighty Prussian state to triumph over the Catholic 
church in the Rulturkampf of the eighteen-seventies and again over the 
Social Democrats in the eighties, the period of the anti-socialist laws. 

The chapter on political communities links the chapters on the more 
"universal" groups and the Sociology of Law with the Sociology of 
Domination; it describes the development of political community from 
rudimentary beginnings to complex differentiation. 87 For many centuries 
the political community differed only quantitatively from the other 
relatively "universal" groups that gradually lost their protective and 
coercive functions as the old political pluralism declined. Eventually a 
qualitative difference developed: a belief in the right of the state to 
define the legal order and the use of legitimate force. This belief in 
legitimacy resulted from gradual usurpation. Previously, the notion of 
legitimate force was part of the consensual action of kin members en- 
gaging in blood revenge; now it became part of the organized action 
(yerbandshandeln) of community members. In the modern state, the 
exercise of political powers (Gewalt) is a part of institutional action. 
(anstaltsmaessiges Handeln).** 

87. Until the fourth (1956) edition of Wirtschaft und- GaiUschaft, the 
Cemeinschaften ranging from the household to die religious and legal associations 
and even the city were arranged into a separate part (Part Two, "Typen der 
Vergemeinschaftung und Vergesellscnaftung*) set off against the types or domina- 
tion (Part Three, Typen der Hemchaft ) which included the political com- 
munity. There is no warrant for this division in Weber's 1914 outline or in the 
logic of his exposition. The categories of social action and group formation 
(Vergemeinschaftung, VergeseUsehaftung, Hemckafi) encompass all of (be pres- 
ent Part Two, although the detailed treatment of Hemchaft b reserved for the 
last chapters. The definition of Hcmckmft appears first, together with the other 
basic concepts, in The Categories of Interpretive Sociology" (App. I, 1378 
below) and in the first chapter of Part One. 

88. In English, the' use of "political power" for folimche Gewalt can easily 
be misleading. Therefore the plural "powers" or the singular "authority" has been 
used. linguistic habit and styustk convenience make it difficult to render Weber's 
social action terms always in such ways as to avoid the impression that it is 
groups, rather than individuals, which act. "Organized action" is organization' 
oriented action and "institutional action" mstittition-orienud action; likewise, 
"class action" (below, 929) is class-oriented action and "party action" (below, 
936) party-oriented action— four varieties of social action that contrast with "mass 
action. " 'lite juxtaposition of social and mass action was obscured in the Gerth and 
Mills translation of ch. DC: 6, which interpolated the terminology of Part One 
(ch. 1:9) into the text of Part Two (cf. Gerth and Mills, From Max 
Wmher . . . , 183). In the different terminology of Part Two, Gemeinschaftskan- 
deht means "social action," not "communal action," and VergeseUtchaftung means 



Tr 



L X X X I V INTRODUCTION 

CH. IX. POLITICAL COMMUNITY AND STATE 

The political community is a group ready to defend a given territory 
with force against outsiders. This minimum definition is designed to en- 
compass all historical communities and thus does not even include the 
guarantee of internal security. Many communities actually did limit 
themselves to nothing more than the maintenance of territorial control. 
The Pennsylvanian commonwealth of the Quakers was exceptional in 
that it refused for a time to use external force. Between these two ex- 
tremes social action may be oriented to any number of goals, and there- 
fort a community may be robber state, welfare state, constitutional state 
or Kulturstaat. Communities united- merely for defense may in peacetime 
relapse into a state of anarchy (in the strict sense) — the mere consensual 
recognition among the members of the given economic order. And ex- 
ternal peacetime may also be a period of interna] war. Thus the 
ascendancy of the political community over other groups becomes the 
history of internal pacification: of the peace edicts of kings, bishops 
and cities during their struggles with the feuding nobility. Old and new 
groups whose ideal and material interests were not adequately protected 
by the traditional arrangements demanded pacification and the "nation- 
alization" of legal norms (treated in the Sociology of Law). 

Weber clearly distinguishes between patriarchal powers, "non- 
authoritarian" consensual and arbitral powers, and political powers 
proper — autonomous military and judicial authority. The prototype for 
political powers is the invperium of the legitimate Roman officials (ch. 
VIII :vi), which later was usurped by' military leaders who received 
ex post facto confirmation by the Senate. Political authority (Gewc&i) 
involves the power over life and death which gives the political com- 
munity its specific pathos. As the community develops, political coercion 
frequently becomes internal, since many demands of the political order 
are accepted by the members only under pressure. However, a political 
community is held together not only through coercion but also through 
common historical experiences: it is a "community of shared memory" 
QErinnerungsgemeinschafO. Yet both the pathos of the supreme sacrifice 
and the shared memory of dangers persist also in other groups ranging 
from those practicing violence — the Camorra, nowadays the Mafia — 
to those suffering it, as in persecuted sects. 

After an historical sketch of the development of political community 

"association," not "societal action" — i.e., it is not a contrast in Toennies' sense 
(cf. below, 60, n. 24). Herfce, terminological adjustments had to be made. For 
example, the seemingly illogical passage. "The communal actions of parties always 
mean a societal ization ' (Gerth and Mills, op. cit., 194) now reads "party-oriented 
social action always involves association" (below, 938). 



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Part Two: The Older Part 



LXXXV 



(sec. 2) Weber again takes up the European state of affairs on the eve 
of the first World War (cf. ch. V:4), comparing it with the capitalism 
and imperialism of Antiquity. The dynamics of international and na- 
tional stratification is his dual theme: the relations of prestige arid power 
among and within political communities. Here again was an issue pre- 
viously raised by Sombart. His Socialism and Social Movement in the 
10th Century (1896) opened with the dictum of the Communist Mani- 
festo that "the history of all hitherto existing society has been a history of 
class struggles." Sombart considered this 

one of the greatest truths of the century , . . , but not the whole truth. 
For it is incorrect to say that all history of society is merely a history 
of class struggles. If it be worthwhile at all to subsume world history 
under one formula, we will have to say that social history has moved 
between two poles . . . which I will call the social and [inter-] national 
antagonisms COegensatze). . , . We find the same striving for wealth, 
power and prestige among communities as among individuals. . . . Today 
we are at the end of an historical epoch of national exaltation and in 
the midst of a period of great social cleavage; it seems to me that all the 
' antagonistic viewpoints of the various groups can be reduced to the 
alternative: national or social. 8 * 

Sombart did not further pursue the topic of international stratifica- 
tion and instead focussed on the Marxist concept of class. Weber, how- 
ever, carried the juxtaposition of the external and internal realm of 
honor to its logical conclusion and elaborated a scheme that also in- 
corporated the Marxist approach as one segment In the external sphere, 
he was concerned with power prestige, not just with national pride, 
which can also be found in non-expansionist Switzerland or Norway. 
Since power prestige derives from power over other political communi- 
ties, it promotes expansionism and is thus a major component cause of 
war. The prestige pretensions of one country escalate those of others — 
Weber points to the deteriorating relations between France and Germany 
m the first decade of the century when, in contrast to the eighteen- 
nineties that Sombart had in mind, nationalist antagonisms prevailed 
again over internal cleavage. The carriers of. power prsstige are the 
"Great Powers," yet their ruling groups, fearing the seizure of power by 
their own victorious generals, are not always expansionist — witness 
ancient Rome and early 19th-century England. In both cases, however, 
capitalist interests enforced the resumption of political expansion. 

Weber's theory of imperialism adds the economic element to the 
prestige factor. Building on his earlier writings, Weber constructs his 

89. Werner Sombart, Socialisms uttd sociaU Bewegung im 19. Jahrhundert 
(Jena: Fischer, 1896), if. 



L X X X V I INTRODUCTION 

notion of imperialist capitalism from the first great historical case: 
ancient Rome with its tax-fanners and state purveyors. In modern 
times, as in Antiquity, it is the general structure of the economy, rather 
than trade interests, which is crucial for political expansionism. Im- 
perialist capitalism may be restrained by the profitableness of "pacifist" 
capitalism, but for his own time Weber foresees the former's ascendancy, 
largely because of the state's role as the biggest customer of the defense 
contractors and similar enterprises. The economic-pacifist interests of the 
petty-bourgeois and proletarian strata are easily reduced by appeals to 
the emotive idea of "the nation." 

Weber reviews the diverse cultural and social characteristics of 
individuals that may define membership in a nation. He emphasizes 
three elements: (i) the speed with which certain historical experiences 
can create the sense of nationhood, (2) the different meanings of the 
term from one country, and one stratum, to another, (3) the intellec- 
tuals' role in fashioning a sense of national identity. His unfinished 
analysis of the intellectuals — "those who usurp leadership in a Kuhur- 
gemeinschaft" — breaks off with a hint at the affinity of cultural prestige 
and power prestige, but not without the skeptical reminder that "art and 
literature of a specifically German character did not develop in the po- 
litical center of Germany" (below, 926). 

Weber's improvement on the Marxian cbss analysis lies in the 
detailed typology of the three phenomena of power distribution within 
the political community: class, status group, and party. Those powerful 
in the economic order need have neither political power nor social honor, 
but they often do have both. Apart from the economic order, the dis- 
tribution of political power is codetermined by the legal order and the 
social or status order. Weber proposes to consider classes not as com- 
munities but as propensities for social action, similar to ethnic groups. 
Therefore, he speaks of "class situation," -which is defined by market 
situation and has two basic categories: property and the lack of property. 
Property, in turn, differs according to whether it is used for rent income 
or profit-making. Although it does make a difference whether communi- 
ties are based on labor, as in soil-tilling villages, or merely on property, 
as among cattle-breeders, the historical origin of class struggles lies not 
in the countryside but within the city: in the clash between creditors 
and debtors. At 'a later economic stage the class struggle was trans- 
formed into the struggle on the commodity market; in modem times 
it has come to center in wage disputes on the labor market. The con- 
temporary bitterness of wage-earners is primarily directed against the 
en tr eprene u rs and managers, who are more visible than die "real" 
capitalists, the shareholders and bankers. This opaqueness is only one of 

4 



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Part Two: The Older Part 



LXXXVII 



the many social and cultural factors that influence the way in which class 
situation may 0>r may not) become the basis for class-oriented or party- 
oriented action. 

The major polemical target of this exposition on class and class 
situation was "that kind of pseudo-scientific operation with the concepts 
of class and class interests which is so frequent these days and which has 
found its most classic expression in the assertion (Behauptung) of a 
talented author that the individual may be in error about his interests, 
but that the class is infallible" (below, 930) — a reference, it seems, to 
none other than the young Georg Lukdcs. 60 As against this class reifica- 
tion by a new breed of Marxian metaphysicians Weber insisted on his 
own empirical dialectic of class and status. Status groups are real, if often 
amorphous, groups limiting the sheer market principle with its opposi- 
tion of class interests. Positive or negative social honor is the basis of 
status groups. Status differences express themselves in the style of life: a 
phenomenon extensively treated in the Sociology of Domination. In the 
extreme, status differentiation leads to caste formation: a link with the 
earlier exposition of ethnic and religious groups. Status groups are the 
bearers of all conventions: a structural explanation for .the coercive 
character of conventions that Weber upheld against Stammler. In sum, 
classes are part of the economic order, status groups, of the social order, 
put in another way, classes are rooted in the sphere of production and 
acquisition, status groups in the realm of consumption. 

Class interests as well as status interests may be represented by 
parties. In contrast to classes and status groups, parries are always 
purpose-rational associations, since their goal is the acquisition of power 
in larger associations. Thus parries' are f requendy authoritarian organiza- 
tions — an issue of paramount concern for the sociology of political parties 
in modern democracy. However, adequately to understand the structure 

90. When Weber wrote this postage, Georg Lukacs was one of his dose 
young friends. He had attracted public attention through hit tint German book, 
Die Srele und die Vomen (1911J. At die time he was preparing himself for an 
academic career, a plan destroyed by die onset of the war. In Weber's Heidelberg 
circle Lukacs and Ernst Bloch r ep r esen ted a new generation of Marxian* who 
were highly critical of "vulgar" Marxism. If the identification is correct, Weber 
refers to conversations rather than pubncations, as he also does elsewhere in the 
text. An early formulation of Lukacs' theory that the proletariat as a whole is 
infallible about its interests is found in an Hungarian essay of 191 9, Tactics 
and Ethics"; see his Schriften ar Utafegfe wd P<mk, ed Peter Ludz 
(Neuwied; Luchterhand, 1967), esp. 9, i8f.,^iTfcak*cs lam adapted Weber's 
dass terminology in his famous work on History and Clou Consdomnex (1923), 
On the relation of Weber and Lukacs, see Marianne Weber, LehentbUd, 473-76. 
and Paul Honigtbeun, "Ermnenmgen an Max Weber, 1 ' in R. Konig and J. 
Winckelmann, eds., Max Weber mm Gedacktnis, 1 84-88. 



LXXXVIII INTRODUCTION 

of parties one must first examine the larger associations within which 
they operate. 

Herewith Weher has reached the Sociology of Domination. Parties 
vary not only according to class and status structure but also according 
to the larger group's structure of domination. In line with his compara- 
tive interests in earlier studies, Weber now proceeds to a broad typology 
comprising parties and polities of Antiquity as well as of the Middle 
Ages and of some non-European areas. 

CHS. X-XVI. TH2 SOCIOLOGY OF DOMINATION 

The Sociology of Domination is the core of Economy and Society.* 1 
The major purpose of the work was the construction of a typology of 
associations, with most prominence given to the types of domination and 
their relation to want-satisfaction through appropriation. To be sure, 
religion and law were constituent parts of the work, irrespective of 
whether Weber planned the chapters to be as comprehensive as they 
finally came to be, but the 1914 outline and the proportions of the manu- 
script show the Sociology of Domination to be the central theme. In the 
reception of the piecemeal translation of Economy and Society, the 
Sociology of Domination has been obscured as a whole. Until now, 
nearly half of it was untranslated; the other half was divided among 
three different translations. 82 In the theoretical discussions the three 
types of legitimate domination have usually been treated in isolation, and 
in research the complex typology of domination has all too frequently 
been reduced to the simple dichotomy of charisma and bureaucracy, if 1 
not just to the so-called Weberian "formal model of bureaucracy." Too 

91. Weber was in the habit of speaking, respectively, of his Sociology of Law, 
Religion, Domination, and State, and he employed these terms in cross-references. 
However, since the 1914 outline does not contain the terms and the manuscript 
of ch. VIII was untitled, it appears likely that he did not want to use the phrase 
"sociology of" in a chapter title. At any rate, in view of the great overall length 
of chs. X-XVI, no summary tide was chosen in the text for the Sociology of 
Domination. Even in its incomplete state this section is twice as long as the chapters 
on religion and law — a quantitative indicator of their importance for the work as 
a whole. 

92. If ch. HI of Part One is included, there are four different translations. 
The incomplete terminological summary of Part One further telescopes the his- 
torical dimension. It does not parallel the structure of the Sociology of Domina- 
tion in Part Two, especially in the chapters on secular and hierocraric rulership 
and the city; the contrast of secular and hierocraric domination appears in Part 
One in ch. 1: 17, and the forms of legitimate rulership peculiar to the city are 
found mostly under rule by notables (ch. Ill: 15— 20). Moreover, feudalism is in 
Part Two a variant of patrimonialism, in Part One a variant of charisma — 
equally feasible classifications. 



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Part Two: The Older Part 



LXXXIX 



often a rulership iias been measured only against the formal features of 
bureaucracy or of charismatic domination. In this manner the technical 
sense of the typology (see below, 263) has been disregarded: More than 
one type should be compared to any given case, rather than just one 
"ideal type" with one "natural system." 

The Sociology of Domination is the mold in which some of Weber's 
most substantive interests, and the influences arousing them, were fused 
into a conceptual unity. As a basic influence Weber acknowledged the 
work of his friend Georg Jellinek: "From his great studies I received 
decisive impulses for whatever fate has permitted me to accomplish. , . . 
[Among these was] his coinage of the concept of the 'social theory of the 
state,' clarifying the blurred tasks of sociology." B3 In his Allgemeine 
Staatslehre Jellinek defined' as the ultimate objective elements of the 
state the social relations of men, as against metaphysical notions of its 
corporeality: 

More precisely, the state exists in relations of will among a plurality of 
, persons. Men who command and others who obey Form the basis of the 
state. ... In the state the relations of will, concentrated in an organiza- 
tional unit, are essentially relations of domination. The quality of dom- 
ination does not exhaust the essence of the state. But relations of 
domination are so necessary to the state that it cannot be conceived 
without them. The state has the powers of rulership (HerrschergewaW). 
To rule (kerrschen') means the ability to impose ones own will upon 
Others unconditionally. . . . Only the state has this power to enforce its 
will unconditionally against other wills. It is the only organization that 
rules by virtue of its inherently autonomous powers. . . . The state, then, 
is that organizational unit equipped with underived powers of com- 



Weber differentiated Jellinek's notion of rule. What Jellinek called 
Herrschen, he called "power" QMacht); this left the term Herrschaft 
(domination) free for an adaptation of the Kantian categorical impera- 
tive: "The situation in which the manifested will (command) of the 
ruler or rulers is meant to influence the conduct of one or more others 
(the ruled) and actually does influence it in such a way that their 
conduct, to a socially relevant degree, occurs as if the ruled had made 
the content of the command the maxim of their conduct for its very 
own sake" (below, 946)'. Domination transforms amorphous and in- 
termittent social action into persistent association. Weber exemplifies the 
difference of domination from mere power with the case of monopolistic 
control in the market. In their own rational interest, the unorganized 

93. R. Konig and J. Winckelmann, eds., Max Weber zwm Gedachtnis, 15. 

94. Georg Jellinek, Allgemeine Staatslehre, 2nd ed. (Berlin: Haring, 1905; 
isted., 1900), 169, 172. 



X C INTRODUCTION 

customers of a monopolistic enterprise may comply with its market 
dictate; this is domination by virtue of interest constellation. Through 
many gradual transitions, this relationship may he transformed into 
domination proper, that means, by virtue of the authoritarian power of 
command, as it prevails in the large-scale industrial enterprise and on 
the manor — the two most important economic structures of domination. 
Domination exists insofar as there is obedience to a command; in general, 
obedience is due to a mixture of habit, expediency and belief in legit- 
imacy. The subjects' willingness to comply with a command is enhanced 
by the existence of a staff, which again acts on the basis of habit, 
legitimacy and self-interest. Sociologically, then, a Herrsckaft is a struc-' 
ture of superordination and subordination sustained by a variety of 
motives and means of enforcement.*" For the historical persistence of 
structures of domination, staff enforcement on whatever grounds is no 
less important than belief in legitimacy. In fact, explains Weber, he is 
"primarily interested in domination insofar as it is administration" 
(below, 948). Only after defining domination in term* of rule by a 
master and his apparatus does Weber add the ultimate grounds for its 
validity. He turns to legitimacy because of its inherent historical im- 
portance^ — the need of those who have power, wealth and honor to 
justify their good fortune. 

The resulting typology of domination goes far beyond the three 
familiar types of authority. The substance of the Sociology of Domina- 
tion consists in the general historical models of rulership. Weber does 
not wish to work out a "political system" applicable to all political groups 
irrespective of time and place; rather, he aims at a "systems analysis" of 
these models. Here he takes up the postulate of a "social theory of the 
state," but whereas Jellinek's typology of states remains largely on the 
level of constitutional theory and political philosophy, Weber "descends" 
to a level of greater historical descriptiveness. With the nature of the 
modern state and of industrial capitalism as undedying themes, Weber 
puts together a comparative scheme within which he integrates the 
major topics and results of his earlier studies: 

I. the ancient and medieval city state as an autonomous polity, rang- 
ing from the patrimonial-bureaucratic kingdom to the confraternity of 
equals (cf. above, sees. 6 and 7); 

II. manorial domination (Grundherrschaft^ in Germanic Antiquity 
and the Middle Ages, involving the issues of patriarchalism, feudalism, 
and military communism (cf. above, sec. 4); 

95. For the terminological resolution of the translation of Herrsckaft as 
domination 01 authority, see helow, 61, n. 31. _ 



io:l] PariTwo; The Older Part XCI 

in. the" rise of modern public and private bureaucracy and the or- 
ganizational realities of modem democracy (cf. above, sec. 8); 

iv. the perennial tension between usurpation and legitimation (cf. 
above, sec' 7, p. li). 

In the Sociology of Domination, theme I is treated mostly under 
patrimonialism (ch. XII) and the city (ch. XVI >, theme II under 
feudalism (ch. XIII) and charismatic rulership (ch. XIV); theme III 
under bureaucracy (ch. XI) and again under charisma (ch. XIV); 
theme IV under caesaropapism and hierocracy (ch. XV) and under the 
special aspect of non-legitimate domination (again ch. XVI). However, 
Weber puts at the beginning of the Sociology of Domination (ch. X) 
what was politically most important to him: the meaning of democracy 
in an industrialized and bureaucratized society. 

(a) the theory of modern democracy. Since domination and 
administration are interdependent, domination is an irreducible com- 
ponent of democratic administration. So-called direct democracy is noth- 
ing primeval, but a product of historical development. Its aim is the 
minimization of domination; its precondition is the relative equality of 
the participants. Here is another historical twist: Direct democracy is 
most feasible in an aristocracy, whether it be Venetian noblemen or 
the vaunted German "aristocracy of the spirit" — the university profes- 
sors. Direct democracy, however, is inherently unstable, and wherever 
there is economic differentiation in the group, domination tends to fall 
into the hands of those who have the economic requisites for performing 
administrative and political tasks. This is, first of all, a matter of "eco- 
nomic availability," not necessarily of high status; thus, managers of 
large-scale enterprises, teachers and medical doctors are less available 
than lawyers, country squires and urban rentiers. In general, the avail- 
able groups also have social honor, and then they are honoratiores 
(notables). If direct democracy turns into rule by honoratiores, the de- 
mand for democracy easily becomes the battle cry of those lacking in 
wealth or honor. In that case both sides msy form parties, which tend to 
be tightly organized because their object is, after all, the struggle for 
power. If this happens, and if the community grows beyond a certain 
size, "the meaning of democracy changes so radically that it no longer 
makes sense for the sociologist to ascribe to the term the same meaning 
as in the case discussed so far" (below, 951). f 

Weber's own theory of modem democracy was directed against the 
many intellectuals ("literati") to his right and left who failed to under- 
stand the facts of parliamentary government and democratic party or- 
ganization and were thus unable to weigh them against the prevalent 



X C I I INTRODUCTION 

monarchic constitutionalism or against panaceas such as the "corporate" 
state, just as they failed to comprehend the technics imperatives of a 
private capitalist economy in contrast to state socialism and capitalism. 
Weber stressed the Formal similarity of the democratic party and the 
capitalist enterprise: If parties are legal and party affiliation is voluntary, 
the business of politics is the pursuit of ideal and material interests, 
which is as 1 inevitable as the activism of the few against the passivity of 
the many. Under the conditions of mass suffrage, the leadcrship.of the 
few rests on mass mobilization, and this in turn requires an effective 
party apparatus. The party bureaucracies parallel those of state and 
economy. However, the bureaucratization of the parties does not neces- 
sarily spell the end of meaningful political democratization or of charis- 
matic leadership. Here Weber's disagreements with Robert Michels 
reappear. ** Michels' "iron law of oligarchy" became for a time very in- 
fluential in the American literature on democracy and party organization, 
but eventually Weber's conception gained ground through its populariza- 
tion in Joseph Schumpeter's Capitalism, Socialism and Democracy.* 7 

The chapter on bureaucracy (ch. XI) elaborates the partly supportive 
and partly antagonistic relations between bureaucracy and modem de- 
mocracy, and between passive and active democratization. The chapter 
on charisma (ch. XIV) adds the transition to democratic suffrage and 
the selection of democratic leadership. It contains the important recogni- 

96. Traces of Weber's objections to Michels' arguments are found in chs. 

XI and XIV (cf. below, 991 and 1003, n. 8), apart from ch. II. Weber did not 
publicly state his disagreement with Michels, whose academic career in Germany ^ 
had been forestalled by official disapproval of his political activities and in whose 
behalf he had protested vociferously in an article on "The So-Called Freedom of 
Teaching" (Frankfurter Zeltung, Sept. 20, 1908; cf. Matianne Weber Lebens- 
bild, 361). In 191 3 Michels became co-editor of the Arckiv fur Sozialwhsenschaft 
und Sozialpolitik. The two men corresponded extensively; Michels mentioned 
in the second edition of his Political Parties that he took into consideration a 
lengthy critique by Weber, to whom he had dedicated the first edition. The 
difficulties of reconstructing Weber's critical thrusts are similar in the case of 
Georg Simmel, whose career he tried to further against strong (in part anti 
Semitic) resistance. In order to protect him, Weber terminated a projtaed 
severe critique after writing a few pages of personal testimonial to Simincl ,md 
a bitter denunciation of his academic and bureaucratic detractors, 

97. Schumpeter, Capitalism, Socialism, and Democracy (3rd ed.; New York: 
Harper & Brothers, 1950), ch. XXII. Schumpeter, one of the earliest Contibu- 
tors to the Outline of Social Economics (1914), did not here mention Weber's 
name, but there is a point-by-point correspondence of his description with pa: ,a^es 
in both parts of Economy and Society. For Schumpeter's account of his 
relationship to Weber, see his History of Economic Analysis, ed. Elizabeth Boody 
Schumpeter (New York: Oxford University Press, 1954), 815-820, and his 1920 
necrologue on Weber, reprinted in R. Konig and J. Winokelmaiin, eds., Max 
Weber zum Gedachtnis, 64-7 1 . 



io:l] Part Two: The Older Part XCIII 

tion that, far from being irreconcilable, charisma and bureaucracy may 
be interdependent. The adjustment of the Catholic church to bourgeois 
democracy, especially in the United States, appears in the chapter on 
political and hierocratic domination (ch. XV). The chapter on the city 
(ch. XVI) deals with the theory of ancient and medieval democracy, 
providing the historical contrast to modem democracy.* 8 

(b) the dimensions of rulership. From the beginning, Weber 
deals with bureaucracy not only in its formal aspects but as a status 
group with vested interests. At the core of his approach to rulership is 
the three-way struggle between ruler, staff, and subjects- The types of 
rulership are distinguished by differing forms of appropriation — Weber 
speaks of appropriation because the legal concept of property is too 
narrow for many historical cases. Appropriation involves the means and 
positions of administration, ranging from economic resources and 
weaponry to managerial and political functions. The seizure of goods 
and the extraction of services often originate in usurpation. Normally, 
appropriation is carried through by a group rather than individuals. 
Legitimacy is used to defend appropriation. Weber suggests, for example, 
that European feudalism, although in many ways an "impossible" struc- 
ture of domination, survived as long as it did because the vassals needed 
the shield of legitimacy. This "functional" emphasis on legitimacy 
pervades the whole exposition. 

From the viewpoint of legitimation, the structure of the Sociology of 
Domination is the following: 

(O The historical models of bureaucracy, patriarchalism, patri- 
monialism, feudalism, Standestaat, and military (and monastic) com- 
munism are subsumed under the three types of legitimate domination 
(chs.XI-XIV); 

(2) As the greatest force of legitimation in history, the priesthood 
is ceaselessly struggling for power with secular rulership (ch. XV); their 
relationship is one of mutual antagonism as well as dependence; 

(3) The city is the locus of specifically non-legitimate domination 
in history (ch. XVI). 

However, the bulk of each chapter is concerned not with legitimacy, 
but with the various^strategies and resources of domination on the part of 
ruler and staff. In each chapter, the military constituency, which was 
basic to the analysis of the ancient states in the "Agrarian Conditions of 
Antiquity," is treated next to the civilian administration. Each chapter 
also contains a section on the ethos and education of the status groups, 

98. In Part One, the theory of democracy is treated especially in ch. III:vfi 
andx 



XCIV 



wrraoDucrtoN 



Finally, the relation between each form of dorrrnation and economic 
development is examined. Weber 6nds that it is easier to state the im- 
pact or domination on the economy than vice versa. There are, for in- 
stance, striking similarities between the class struggle in the Italian cities 
of the Middle Ages andan the Roman Republic, although the economic 
conditions were quite different. The reason lies in the limited nurhber 
of administrative techniques available for effecting compromises among 
the status groups of a polity. Therefore, similarities of political 'admin- 
istration must not be interpreted as identical superstructures rising over 
identical economic foundations: "These things obey their own law" 
(below, 1309). 

(c) the TE8MINOLOCY of domination. The terminological integra- 
tion of the Sociology of Domination was a remarkable achievement. By 
drawing on concepts from ancient, medieval and modern history Weber 
succeeded in fashioning a terminology applicable to all three eras. It 
should be remembered that this did not involve any assumptions about 
historical sameness, but an insistence on typological gradation. Weber 
addressed his comparative terminology to medievalists like Below and 
Gierke, who wrote on both manorial domination (Grundherrschaft) 
and the city, to ancient historians like Eduard Meyer, and to church and 
legal historians like Rudolf Sonm. He demonstrated some of the typologi- 
cal implications of their terminology. 

The term Herrschaft has a very concrete and a very abstract mean- 
ing. In historiography a Herrschaft is a noble estate, corresponding to 
the French seigneurie and the English manor. In the philosophy of 
history, Herrschaft is the basic category of superordination , and in this 
sense it loomed large in the work of the young Marx, Weber uses the 
term frequently in the historical sense and occasionally in the philosophi- 
cal meaning, Sometimes he refers to the "domination of man over man." 
However, this is not technically relevant to his typology. The Herr- 
schaftsverband (authoritarian association)' 8 was a term widely used 
after the late eigh teen-sixties when Gierke made it the standard contrast 
to the Genossenschaft (equalitarian association). The term "patrimonial 
state" was older still; it was introduced early in the nineteenth century by 
Carl Ludwig von Haller. 10 * Haller fought against the liberal doctrines 

99. Since Weber did not use the term Herrschaftsrerband as a contrast to 
Genossenschaft, the translation "ruling organization" was chosen for the most 
general formulation in the basic definitions (cf. below, 53} in order to exclude 
the colloquial connotations of "authoritarianism." In Weber's terminology even the 
most democratic organization is a Henschaftsverband. 

100. Cari Ludwig von Haller, Restauration der Staats-Wissenschaft, oder 
Theorie des nattirlich-geselHgen Zustands der Ckimare des kiinstlich'biirgeTlichen 
entgegengesetzt (Waitenhur: Steiner, 1817/ 18), vols. II and III. 



io:I ] Part Two: The Older Part X C V 

of die social contract and for the diesis that all governmental authority 
was the private property of the ruler. He also elaborated the early ideal 
type of patrimonial bureaucracy. Whereas Haller equated patriarchalism 
and patrimonialism, Weber contrasted the two concepts and defined the 
latter as the political domination of a ruler with the help of his personal 
apparatus (consisting of slaves, retainers, minmerudes). This change 
reflected the controversy over the importance of Grundkerrschaft (ma- 
norial domination) in Germanic history, which Weber downgraded in 
favor of the charismatic origin of political rulership. His 1914 letter to 
Georg von Below stressed the distinction between patriarchal and 
patrimonial domination: 

Although I have good reason to think very modestly of my own 
expertise, I have no doubt that you are right [about the existence of gen- 
uine political authority, not just private powers, in European feudalism]. 
It is astonishing that the old contrary theory — to which, admittedly, I 
too once adhered — is still so persistently defended. . . . Terminologically, 
I must limit the concept of patrimonialism to certain kinds of political 
domination, I hope you will find that I have sufficiently emphasized the 
absolute distinction between domestic, personal and manorial authority, 
on the one hand, and political Herrschaft on the other, which is none of 
these but rather military and judicial authority. This main thesis of your 
book will find no objection from my side. I will only show that this 
difference is as old as history. 101 

Weber demonstrated his point by drawing on examples from An- 
tiquity and the Chinese empire. Patrimonialism was the most important 
kind of administration before the emergence of modem bureaucracy. 
In the most centralized case, it constituted a patrimonial-bureaucratic 
administration with a "state-socialist" oikos economy — Rodbertus' con- 
cept — ; European feudalism was its most fragmented case, with its sole 
and limited analogy in Japan. Only European feudalism developed the 
Standestaat, the consociation of ruler, nobility and honoratiores under a 
quasi -constitutional division of powers. Feudalism was for Weber a 
marginal case of patrimonialism, because the feudal vassal was a patri- 
monial lord in relation to his own retainers and because the feudal 
principle did not completely replace the patrimonial administration of 
the realm. Feudalism had charismatic features as well; the status group 
of warriors was first distinguished by personal military prowess and later 
by "noble" descent. 

Precisely because feudalism was a unique medieval phenomenon, 

Weber's distinction between feudalism and patrimonialism has consider- 

■■^^ 
10 1. Weber's letter of June 21, 1914, printed in G. von Below, Der Deutsche 
Stoat des Mittelalters, 2nd ed. (1925), xxiv i. 



X C V I INTRODUCTION 

able terminological utility today when "feudalism" is all too often an 
indiscriminate pejorative term referring to sundry situations in all coun- 
tries where large-scale landownership and political power are still closely 
related. The concepts of patrimonialism and personal rulership — divested 
of traditionalist legitimation — are frequently more applicable to the 
New States than feudalism, bureaucracy or charismatic rulership. 102 
If patrimonialism has been conceptually underemployed, charisma 
has been used indiscriminately to label almost all non-bureaucratic forms 
of leadership. 103 Weber chose the term to characterize, first of all, the 
relationship between the military chieftain and his free following, the 
subject of his 1905 essay (sec. 4 above). He secularized Rudolf SohrnV 
notion of the charisma of the Christian church. In his major work on 
Church Law (1892), Sohm, a devout believer and conservative colum- 
nist, had described the church not as a "legal" but a "charismatic" or- 
ganization — i.e., an organization established by virtue of divine inspira- 
tion, not man-made law. After using the concept of charisma in its 
religious connotations in the Sociology of Religion, Weber apparently 
decided that it could also denote the self-legitimation of political leader- 
ship, a usurpatory challenge from the viewpoint of patriarchal, patri- 
monial and bureaucratic legitimacy. 

Throughout history political and religious charisma have warred and 
cooperated with one another. The secular rulers had to face, in one 
way or another, the institutionalized charisma of the priesthood — 
theocracy. Since Weber concerned himself with the charisma of both 
powers, he differentiated the traditional notion of theocracy — still his 
terminology in the "Agrarian Conditions in Antiquity"— into a typology 
of hierocracy contrasting with caesaropapism. 1 "* The latter term denoted 
the complete control of the secular ruler over the church, and since this 
was true of both the Anglican and Lutheran rulers, the phrase also suited 
Weber's penchant for nominalist irony. 30S Successful political usurpers 
or their successors often endeavored to fortify their rule through religious 

102. For a proposal along these lines, see my "Personal Rulership, Patri- 
monialism and Empire- Building in the New States," World Politics, XX, 1968, 
1 94-206. 

103. On the indiscriminate application of the concept of charisma, cf. Rein- 
hard Bendix, "Reflections on Charismatic Leadership," Asian Survey, VII, 1967, 

34I-352- 

104. In this he followed the terminology of Byzantine studies; cf. Religion 
m Gesckichte und Gegenwwt, I (Tubingen: Mohr, 1909), cols. 1527-31, 

105. The analytical advance made by Weber can be seen by comparing, for 
example, Wilhelm Roscher's treatment of "priestly aristocracy" in his Potitik: 
Geschichtliche NatuTlehre der Monarchic, Aristokratie und Demokratie (Stutt- 
gart: Cotta, 1892), 87-117. 



io:l] - PartTwo: The Older Part , XCVII 

legitimation: the Foremost European examples were Charlemagne and 
Napoleon I. Whereas these two rulers controlled the church, others were 
more dependent. European history was profoundly influenced hy the 
great clash and subsequent stalemate between emperor and pope — a 
subject about which Weber wrote his first major essay at the age of 
thirteen 10B This gave the Italian cities their historic opportunity to gain 
autonomy for a time from the patrimonial and hierocratic powers and 
to usher in the Renaissance with its unbridled individualism: an age of 
illegitimacy. 

(d) the city: usurpation and revolution. 107 Jt has been asserted 
occasionally that the Sociology of Domination, with its "static" ideal 
types, cannot explain revolutionary change. Were this true, Marxism as 
well could not have advanced a theory of revolution, since its "laws" 
and developmental constructs are nothing if not ideal types — as Weber 
pointed out in i9O4. t08 The fact is that his own theory of revolution 
appears in the guise of usurpation and non-legitimate domination because 
of its attention to administration and legitimacy, marginal concerns to 
Marxism. Weber looked more closely at the consequences of the seizure 
of power than did Marx in spite of the "dictatorship of "the proletariat"; 
he saw that revolutionary domination can survive only when an efficient 
administration suppresses the expropriated former holders of legitimate 
power. 

The city as an autonomous, oath-bound commune of armed men 
existed only in the Occident, and then only in Antiquity and the Middle 
Ages. It was the specific locus of revolutionary domination in two re- 
spects: It was a "state within a state" erected by the patricians against 
the patrimonial rulerships with their traditionalist legitimation; it also 
was the scene of the uprising of the "people" against the patricians who 
had in turn assumed the mantle of legitimacy. The people's leaders 
created another "state within a state." Weber maintained that the oldest 

.106. In the same year, 1877, -Weber wrote an essay on "The Roman Empire 
from Constantine to the Teutonic Migrations"; at the age of fifteen he wrote 
"Reflections on the Character, Development and History of the Indo-Germanic 
Peoples." These were standard topics in the classical schools, but the essays also 
indicate the early origins and the continuity of some of Weber's basic interests. 

107. The chapter^ on the city was the fulfilment of a project that Weber 
had declared to be worthwhile in 1908/9 (cf. above, p. xxxi); he took himself 
by his own words and demonstrated how the ancient polis and medieval city 
could be compared to explain their differences and how an indirect contribution 
could he made to the study of modem democracy, 

108. Cf. Shils and Finch, eds., Methodology . . . , 103. For a comparison of 
the ideal -typical constructs of Marx and Weber, see Judith Janoslca-Bendl, 
Methodologiscke Aspekte des Idealtypus. Max Weber ttnd die Soziologie der 
Geschichte (Berlin; Duncker & Humhlot, 1965), 89-114. 



X C V I 1 1 INTRODUCTION 

historical records of the city as a commune proved its revolutionary 
character, but that this was often obscured in documents which pur- 
posively hid usurpations of political power. 106 

The first great usurpation of the early Middle Ages was the "revo- 
lutionary movement of 726 that 'led to the defection of Italy from 
Byzantine domination and centered around Venice. It was called forth 
especially by opposition to the icon destruction ordered by the emperor 
who was under the pressure of [the Islamic sympathies of] his own 
army. Thus the religious element, although not the only factor, triggered 
.the revolution."" After a period of patrician rule, the Italian popolo 
rose under its leaders and established "the first deliberately nonlegitimate 
and revolutionary political association" (below, 1302). 

Weber contrasted the patrician city with the plebeian city of the 
Middle Ages and of Antiquity, exploring the different forms of class 
struggle in each type and era. He stressed the remarkable parallels be- 
tween the Italian papolo with its capitano and the ancient Roman plebs 
with its tribune. In the absence of traditional legitimation, the tribune 
was sustained by armed popular support. He checked the power of the 
senate and instigated the flebiscita. 

Democratization means the political expropriation of the upper 
strata, which in these historical cases were as "closely policed, disen- 
franchized and outlawed as is the Russian bourgeoisie by Lenin. The 
basis of democratization is everywhere of a military nature; it lies in the 
emergence of a disciplined infantry. . . . Military discipline signified the 
victory of democracy, for the wish and the need to call on the nori- 
knightly masses gave them arms and thereby political power. The 
parallels to the German revolution of 19 18 are obvious." 111 However, 
democratization by no means leads to the waning of domination. Ancient 
and medieval democracy passed through the state of the tyrannis and the 
signoria before the city state disappeared, reverting to patrimonial ruler- 
ship through internal transformation or external defeat. But this his- 

109. Weber rejected Sombart's theory that "ground rent is the mother of the 
city" (cf. Economic History, 239). The two men differed in their interest and 
interpretation of the city. Sombart was primarily concerned with the economic 
aspects; cf. Der moderne Kaptalismus, II, 176-249, and his "Der Begriff der 
Stadt und das Wesen der Stadtebildung," AfS, XXV, 1907, 1-9. In dealing with 
the city as a political phenomenon, Weber followed the tradition of ancient and 
medieval history. However, he reversed the standard political definition of the 
German medieval city as a se If- gu veming body with a town courtcil subject to 
confirmation by the legitimate overlord, and instead emphasized the aspect of 
usurpation. For the older definition, sec Fieiherr Roth von Schreckenstein, Da J 
Patriziat in den deutschen Stiidten (Tubingen: Mohr, 18 ;6), 28. 

no. Wirtsckaftsgeschichte, 274; cf. Economic History, 236. 

in. Wirtsckaftsgeschickte, 278!., cf. Economic History, 240. 



io:I] _ Part Two: The, Older Part XCIX 

torical "cycle" had very different results in the two eras : In Antiquity 
a universal empire came into being, suppressing private capitalism; at 
the beginning of modern history, the competing patrimonial-bureaucratic 
states created the European balance of power, one of the preconditions 
of modern capitalism. They further developed the rational administra- 
tion first promoted by the non-kgicimatfi dictatorship of the Italian 
signoria. Thus the modern state and modern democracy were not the 
direct successors of the medieval city. Their rise was prepared by the 
struggle for representation in the Siandestaat and the absolutist state, 
which preceded their violent establishment in the American and French 
revolutions. 

From the viewpoint of legitimacy and administrative control there is 
no basic difference between coups d'etat and mass uprisings. Weber's 
reference to the Russian and German "revolutions" was more than a 
mere illustrative analogy. Structurally, the modern state, whether par- 
liamentary, plebiscitary or a "people's democracy," is one city. Non- 
legitimate domination is at the root of modern democracies, whether they 
are more libertarian or more authoritarian. The United States, the "first 
new nation" in Seymour Martin Lipsei's phrase, came into being in 
rejection of monarchic legitimacy and instead created a polity that, in 
analogous terms, resembles the Roman Republic: its President (tribune) 
and the plebeian House of Representatives contrast with the Senate, an 
imitation of the House of Lords, as the most traditionalist and aristo- 
cratic element. 

It is a moot point which contemporary state should be considered 
less similar to a city and closer to patrimonial rulership. Hierocracy 
and caesaropapism continue to exist in some of their traditional ways, 
but more frequently in a new secularized form. Secular intellectuals have 
replaced priests as the new legitimize^., especially in the New States. 
Weber did not foresee how quickly snd terribly totalitarianism would 
.seize and exercise power, although he described it as an "objective 
possibility" (below, 644, 661, n.4). Toward the end of his life he con- 
sidered it more likely that a Bonapartist coup d'etat might occur in 
Bolshevist Russia or in Weimar Germany, a reasonable guess on the basis 
of historical precedent. But Weber had no deterministic view of history: 
"The continuum of cultural development \r. the Mediterranean-European 
realm has up to now shown neither completed 'cycles' nor an unam- 
biguous unilinear development." 112 Despite his fulminations, he did 
not consider the oppressive dominance of bureaucracy politically in- 
escapable (cf. below, 991)- In his showdown with Oswald Spengler in 

112. "Agrarverhaltnisse . . . ," GAzSW, 278. 



U INTRODUCTION 

February of 1920, Weber extracted the admission from the author of the 
Decline of the West that his morphology was historical poetry. Domina- 
tion in large-scale communities was for Weber the only historic in- 
evitability — a point directed at the same occasion against a young com- 
munist who was dreaming of the perfect commune of intellectuals and 
proletarians in Siberia. 11 * 

If the course of history is not predetermined but domination ines-- 
capable at the same time that its forms are limited, a historically saturated 
typology is the best analytical tool for the researcher. This is the ultimate 
rationale for the typologies of Economy and Society. 

II. PART ONE: THE LATER PART 

Between 1918 and 1920, during and after the Empire's collapse, 
Weber turned to the terminological summary. In contrast to Part Two, 
where after 1918 he revised only the chapter on bureaucracy, he rewrote 
the definitions many times. Weber spent so much energy on the cate- 
gories because he recognized that the discursive exposition of his com- 
plex and novel terminology made retention difficult. Several colleagues, 
among them the philosopher Heinrich Rickert, had told him that the 
Stammler critique and the essay on "Some Categories of Interpretive 
Sociology" were excessively hard to read. Weber heeded their advice and 
simplified the terminology. He divided the text into numbered main 
definitions and small-print comments, a device frequently employed in 
the older literature, as in Scbonberg's Handbook of Political Economy. 

In the first edition of Wirtschaft und Gesellschaft, Part One was 
published under the title now carried by Part Two, but Weber liked to 
call it his Kategorienlehre or casuistry. In those last months of his life 
he seems to have expressed some satisfaction with his progress — with 
the feeling, however: "People will shake their heads." He expected 
resistance to bis redefining of well-known historical, economic, legal and 
theological terms for his sociological purposes. Thus, he wanted it clearly 
understood that his definitions were nothing more than a clarification 
of his own terms to be tested by their scholarly yield; they were not 
an attempt to impose a new terminology on his colleagues. Hundreds of 
students attended bis courses at this time — in Vienna in 1918 and in 
Munich in 1919/20 — but the course on the categories drove them away 
en masse. "* Upon their urging, Weber compensated the students for 

113. Cf. Marianne Weber, Lebensbild, 6S^ff., and Eduard Baumgarten, ed., 
Max Weber: Werk utid Person (Tubingen: Mohr, 1964), 554f. 

114. In a period when political agitation is again an issue at American uni- 
versities, it may be worthwhile to recount that Weber opened the course on the 
most general categories of sociology with a statement showing that he was for 



IO 



m 



Part One: The Later Part 



CI 



his definitions with his lectures on economic history. It is certainly true 
that the definitions are not "readable." Part One is really a reference 
text, and it would indeed have greatly facilitated the reading of Part 
Two had Weber lived to revise the old terminology in the light of the 
new. The discrepancy as it now exists makes additional demands upon 
the reader of both parts, but it also offers researchers the opportunity to 
work with Weber's alternative terminology. 

When SchmoIIer wrote his critique of Sombart's Modem Capitalism 
he advanced a complaint that might have applied also to -Weber: "Every 
few pages we find the sentence: 'I call this such and such,' and the reader 
is overwhelmed by a flood of new names, new etiquettes and pigeon- 
holes.""' Sombart considered his own terminological introduction a 
"considerable esthetic impairment" but an inevitable nuisance since he 
wanted to introduce a personal terminology; similarly, Weber acknowl- 
edged the stylistic awkwardness of his precise definitions. Sombart called 
for an esthetic science: "The guilt toward all living things that every 
science brings upon itself [by its deadening generalities] can be expiated 
only if scholarship produces new life through its creations, shaping them 
into works of art . . . It seems to me that we should strive to make a 
scientific scheme beautiful in itself." 11 * Weber never advanced such an 
exuberant demand, but the casuistry of Part One, which is so much 
indebted to his legal training, does indeed have an esthetic quality, 
which will be revealed especially to the reader who works his way first 
through Part Two with its descriptive richness. 

Weber finished three chapters of Part One and the beginning of 
chapter IV. These are the only chapters he could rework in, the proofs. 11 ' 
Both parts of the work begin with basic definitions of social action and 
then take up economic action. In Part One, however, the typology of 

"profession" even as he was against "indoctrination." In Marianne Weber's phrasing 
(Lebensbild, 673^), he wanted to say a "first and last word on politics, which has 
•no place in the lecture hall and in science, but rather belongs in an arena where 
the free airing of opposing judgements is possible. . . . We can have only one 
common goal* To turn the Versailles treaty into a scrap of paper. At the moment 
this is not possible, but the right of rebellion against foreign domination cannot 
be foresworn. Now we must practice the art of silence and return to the sober 
tasks of everyday life." Cf. Baumgarten, ed., of. tit., 553, 716. 

115. SchmoIIer, loc. cit., 297. 

116. Sombart, op. cit., I, xxx. 

117. The translation of chs. I — II of Part One was drafted by Henderson and 
reworked by Parsons, who did the subsequent chapters on his own. Terminologi- 
cally, the original translation diverged from the German text by using "type" and 
"system" much more freely than did Weber, who in general spoke of "type" only 
when he really meant "ideal type" and for the rest employed terms such as "kind" 
or "phenomenon"*, the term "system" was rarely used by Weber. 



CII 



INTRODUCTION 



domination appears already in ch. Ill; classes and status groups (ch. IV) 
follow rather v $ban precede it. Notes found with the manuscript indicate 
that Weber intended to go on to status groups of warriors. At least two 
chapters anticipated in the text of Part One are missing altogether: One 
on the more "universal" groups (household, Ian group, etc.) treated early 
in Part Two, and another one on the theory of revolution (cf. the an- 
ticipatory reference below, 2^jS), corresponding in Part Two to the 
chapter on the city as non-legitimate domination (ch. XVI). This chap- 
ter would have dealt with the German "and Russian revolutions within 
^ a typology designed to give a more precise description than that afforded 
by the mere label "revolution," 

Almost half of the first chapter of p art One is given over to a simpli- 
fied presentation of the meaning of "interpretive sociology" and the con- 
cept of "social action." 118 This is Weber's easiest methodological state- 
ment, but because of its very conciseness the reader cannot afford to 
disregard the other methodological writings. In the second half of the 
chapter, the basic definitions of social action and association, Weber 
abandoned the older, more differentiated typology of Part Two (cf. 
below, Appendix 1). He changed Gemeinschaftshandeln into soziahs 
Handeln (social action) and Gemeinschaft mostly into Verhand (or- 
ganization). This made it possible to contrast Vergeme'mschaftung and 
Vergesellschaftung (communal and associative relationships) in sec. 9 
and to come closer to Tonnies' terminology without accepting his basic 
dichotomy. Tonnies' distinction had gained wide currency after the turn 
of the century, especially after the second edition of his wort (1912). 
Apparently Weber felt that he should not insist on a quite different 
terminology. Weber treated Tonnies considerately as a comrade-in-arms 
in the struggle for social research and expressed himself with somewhat 
distant politeness about Gemeinschaft nnd Gesellsckaft (1887), but 
there is no indication that the work was a major influence on his in- 
tellectual development, and Economy and Society appears partly con- 
ceived in opposition to it. 11 * 

118. For recent additions to the large literature on social action, see Helmut 
Gimdt, Das ioziaU. Handeln ah Grundkategorie erfahmngswissenschaftUcher 
Sd&ologie ("Veroffentlichungen des Max Weber Instituts der Universitat 
Miinchen"; Tubingen: Mohr, 1967); on the origin of the terminology of social 
action, see Johannes Winckelmann's introduction to Gimdt, ibid., r— zo; For an 
interpretation of Weber's theory of science in the light of subsequent develop- 
ments in the natural and social sciences, see Winckelmann, 'Max Webers 
Verstandnis von Mensch und Gesellschaft," in K. Engisch et al., eds., Max 
Weber: Gedtichtnisschrift der Litdurtg-Maximilians-Universitat Munchen, 195- 

243- 

119. On the theoretical differences between Tonnies and Weber, see the 

definitive critique of Tonnies by Ren£ Konig, "Die Begriffe Gemeinschaft und 



io:ll ] Part One: The Later Part C 1 1 1 

In communal as well as associative relationships conflict is normal 
(sec. 8). As in the case of power and domination, the definition of con- 
flict has been wrenched out of context in discussions of Weber's orienta- 
tion to power. He certainly, was a political realist, but the purpose of the 
section is the definition of peaceful and regulated conflict ("competi- 
tion") as against social selection and the free-for-all. The target of the 
section is Social Darwinism. Unrestrained struggle ard social selection 
are marginal to Weber's analytical interest. Up to now the reversal of 
a key sentence has confused both German and English readers. Instead 
of the sentence: "The treatment of conflict involving the use of physical 
violence as a separate type is justified by the special characteristics of 
the employment of this means and the corresponding peculiarities of the 
sociological consequences of its use" (Parsons, ed,, Theory, 133), it must 
read: "The conceptual separation (Ahsonderung) of peaceful [from 
violent] conflict is justified by the quality of the means normal to it and 
the peculiar sociological consequences of its occurrence" (below, 38). 
Weber goes on to emphasize the importance of the rules of the game as 
against inherent personal qualities (whether social or biological) and 
states that "we want to speak of conflict only when there really is com- 
petition" (cf. below, 39). He refers ahead to ch. II, where economic 
action is defined "as a peaceful use of the actor's control over resources" 
(below, 63), 

The chapter on the sociological categories of economic action is 
remarkable for its length, the same as chs. I and III together. It is likely 
that Weber wanted to compensate for the relatively brief economic 
casuistry of Part Two. However, the many pages of seemingly dry defini- 
tions and comments owe some of their length — and hidden fervor — to 
Weber's political involvement with the problems of postwar economic 
and political reconstruction in the wake of the Empire's collapse and in 
the face of the victor's harsh demands at Versailles. The chapter also 
reflects the phenomenon of the wartime "state-socialist" economy and 
the syndicalist and socialist p oposals for economic reconstruction. Some 
of Weber's comments on the much-debated question of the economic 
feasibility of socialism are definitely time-bound; other passages in this 

Geselischaft bei Ferdinand Tonnies," Kdlner Zeitschrift fiir Sozfologie, VII, 195;, 
348-420. In the American literature the relationship apparently was misperceived 
for two reasons: CO the early date (1887) of Tonnies work, which for a long 
time received little attention, and the fact that the Gemeinschaft — Geselischaft 
dichotomy became well-known so much earlier than Economy and Society. For 
illustrations, see Robert Nisbet, The Sociological Tradition (New York: Basic 
Books, 1966), 79 and 326; Robert Presthus, Men at the Top. A Study in Com- 
munity Power (New York: Oxford University Press, 1964), 9. 



CIV 



INTRODUCTION 



chapter show him years ahead of the critique that welfare economists later 
were to direct against classical economics, even though he did not use 
their technical apparatus. 

While he was working intermittently on the economic categories, 
Weber in speeches and statements strenuously opposed the nationaliza- 
tion of the major industries. He considered neither the remaining state 
bureaucracy nor the inexperienced functionaries of the socialist labor 
movement capable of running the economy. In April, 1920, when the 
Democratic Party he had helped to establish in November, 1918, asked 
him to serve on the Nationalization Commission, he resigne'd, explaining 
that "the politician -must make compromises — the scholar must not 
whitewash them." 110 A few weeks later he died. 



1 1 . Political Writings 

"Parliament and Government in a Reconstructed Germany" (Ap- 
pendix II) is offered for three reasons: (1) to compensate for the un- 
written part on the sociology of the state; (2) to provide a corrective to 
the one-sided reception of the chapter on bureaucracy (ch. XI) — as if 
Weber had somehow missed the facts of bureaucracy as a vested interest 
group or a network of informal cliques; (3) to introduce to the English 
reader one of his major political writings, almost all of which are un- 
translated. 121 

The essay is' a revision of newspaper articles originally written for 

no. E. Baumgaiten, ed.. Max Weber: Werk und Person, 530; cf. also ibid., 
608 and Wolfgang Mommsen, Max Weber und die deutscke Politik 1890-1920 
(Tubingen: Mohr, 1959), 303?. 

111. In the fourth edition of Wirtschaft und Geselhchaft, as a substitute for 
the chapters on the modem state and its parties that Weber did not live to write, 
Johannes Winckelmann provides a Sociology of the State constructed out of 
passages from Economic History, "Politics as a Vocation," and "Parliament and 
Government" with the omission of the more polemical and time-bound sections 
(for a separate edition, see Max Weber, Slaatssoziologie, ed. Johannes Winckel- 
mann; 2nd rev. ed., Berlin: Duncker & Hum blot, 1966). In the English edition 
this imaginative didactic effort has been replaced by a continuous translation of 
the last essay. This appeared desirable because of the English reader's lack of 
familiarity with the political writings; by contrast, the Economic History was the 
first Weber translation (1917) and "Politics as a Vocation," a philosophical 
statement rather than a polemical article, is already well-known in the Gerth 
and Mills translation (From Max Weber . . . , 77-128). — The list of Weber's 
political newspaper articles and journal essays is lengthy; it includes two essays 
on the 1905 Russian revolution, "On the Conditions of Bourgeois Democracy in 
Russia" and "Russia's Transition to Pseudo-Constitutionalism" (both 1906). The 
Gesammelte PoZitiscfie Schriften comprise only part of the political writings. 
The Gerth and Mills volume contains somewhat more than one quarter of 



/ 1 ] Weber's Political Writings CV 

the leftwing-liberal Frankfurter Zeitung, one of the best-known Euro- 
pean newspapers until its suppression by the Nazis. The articles ap- 
peared in the summer of 1917, after Woodrow Wilson entered the war. 
They launched a sensational attack on the political incompetency of the 
Imperial and Prussian bureaucracy; the paper was subsequently put 
under pre-publication censorship, but the very publication of the articles 
is enough to show that even in wartime Imperial Germany was far less 
oppressive than Nazi Germany. 

Weber made his impassioned plea for political democratization at a 
time when reform seemed highly uncertain and revolution only a slight 
possibility. His siding with parliamentarism was by no means a sudden 
conversion under the shadow of military disaster, as it was for Luden- 
dorff and the general staff in September 1918. Weber had for rrfany 
years advocated parliamentary government. He considered himself part 
of a vigorous but loyal opposition to the monarchy. He argued from 
premises of national interest, partly out of deep conviction, partly for 
tactical reasons, hoping that parliamentary government would make pos- 
sible a more rational politics in the international no less than the national 
interest. He wanted Germany to play a major part in the rather dis- 
cordant concert of European powers, but he never advocated her hegem- 
ony over Europe. In domestic politics he wanted to be recognized as a 
"class conscious bourgeois" who opposed the entrenched Junkers and 
the rightwing romantics no less than the petty-bourgeois labor move- 
ment and the Utopian leftwing intellectuals. He positively scorned the 
litterateurs of the right and left — vvitness his outbursts in "Parliament 
and Government." Weber took a humanitarian commitment for granted 
but was convinced that it would suffer from noisy display and moralistic 
sermonizing. He saluted pacifists as well as revolutionaries with a pure 
"ethic of ultimate ends" (Gesinnungsethik). But he believed in politics 
as the art of the possible — the morally imperative compromise in a 
world of irreconcilable ideologies and raw interests. 

These few remarks cannot do justice to Weber's politics or to his 
political critics. 121 The reader of "Parliament and Government" should" 
bear in mind that it represents only one phase of Weber's politics, neither 
the early period when the very young professor intentionally shocked his 
father's liberal generation with tough nationalist rhetoric in his Frei- 

"Suffrage and Democracy in Germany" (1917) under die heading "National 
Character and the Junkers" {of. at., 386-95). Weber's political writings are, 
of course, partly dated; however, in part they can also be read as discussions of 
democratization, especially the issue of political development in "new" states. 
12a.. For a review of the critics, see my "Political Critiques of Max Weber: 
Some Implications for Political Sociology, American Sociological Review, vol. 
30,- 1965, 213-23. 



C V I INTRODUCTION 

burg inaugural address of 1895 — °*dy to regret it Iatrr — nor the last 
phase when the despairing democrat returned from the Versailles treaty 
meetings with grave forbodings, just like John Maynard Keynes. Weber 
foresaw Wilson's failure at Versailles. In an unsigned editorial statement 
in the Frankfurter Zeitung (October 27, 1918) he lectured his colleague- 
in-politics on the hard facts of the power balance and the art of peace- 
making: 

Men of good will and understanding do not question President Wilson's 
sincerity. However, it appears that he does not sufficiently grasp the 
following: If the German government accepts his armistice conditions, 
which make any further military resistance impossible, not oniy Germany 
but he too would be eliminated as a major factor in the peace settlement. 
His own position as arbiter for the world rests on the fact that the Ger- 
man army is at least strong enough to avoid defeat without the help of 
American troops on the Allied side. Were this to become different, the 
. absolutely intransigent elements, which no doubt exist in other enemy 
countries, would gain the upper hand and simply push the President 
aside with polite thanks for his previous support. His role would be over, 
unless he went to war against his present allies. The German govern- 
ment, too, should have considered this state of affairs. Even though an 
armistice is desirable to avoid unnecessary bloodshed^ it would certainly 
have been better not to focus deliberations so FJtcIusively on the armistice 
offer as has been done. Peace negotiations could take place without an 
armistice if the enemies insist on continuation of the slaughter. 12 * 

Inextremis, Weber was not averse to a levee en masse and guerrilla 
warfare ("national wars of liberation"), as he demonstrated in his speech 
at an anti-Versailles meeting of the University of Heidelberg in March, 
1919; he protested against what appeared to him a flagrant violation of 
Wilson's promise of self-determination for all peoples. Such national 
pride, however, did not prevent rightwing students from picketing his 
house and disrupting his lectures. Emotional appeals aside, he devoted 
much constructive energy to the drafting of the Weimar constitution, 
through his writings and as member of the revolutionary government's 
planning committee. 1M 

123- GPS, 435- 

124. In the past, Weber's contribution to the presidential features of the 
Weimar constitution was exaggerated by friend ana foe. For a correction, see 
Gerhard Schulz, Ziinschen Demokratie und Dtktatur: VerfassungspoUt^. wtd 
Reichsreform in der Weimarer RepubUk (Berlin: de Gniyter, 1963), I, 114-42. 
Schulz points out that fax from taking a blunt position in favor of a "Caesarist" 
leader, Weber gradually shifted his opinions in response to the changing political 
situation and the diversity of opinion in committee meetings. Eventually he came 
to favor a popularly elected President as a mediator between the Reichstag and 
the States. Cf. also Weber, GPS, 394-471, 486-89. 



1 1 ] Weber's Political Writings C V 1 1 

In essence, Weber stood for the rational support of s political order 
that can be affirmed in most essentials. His sociology can serve the 
self-clarification of critical-minded organization men in industrialized 
and democratized society. This was the ultimate dialectic in Weber's 
position: he was a sharp critic of human and institutional failures, but 
basically a moralist with reformist convictions, not a revolutionary 
temper. 1 " 



12. On Editing and Translating Economy and Society 

.. There are some misunderstandings abroad about the readability of 
Economy and Society. They relate in part to the original, in part to the 
translations. To begin with, it must be pointed out that Weber wrote 
lucidly and subtly. He wrote more clearly than did most of his colleagues, 
including Sombart, Tdnnies, Troeltsch and his own brother Alfred, not 
to mention the legion of "ordinary" professors of his time. Weber does 
not stand in the tradition of German philosophical prose with its murky 
profundity that has usually suggested dangerous obscurantism to Anglo- 
Saxon readers. Considering that most of Economy and Society is a first 
draft, Weber's power of formulation proves extraordinary. Yet there are 
difficulties: 

CO Since Part Two was written with great speed, stylistic editing 
and judicious cutting would have been helpful to the reader, but this 
would also have been incompatible with the requirements of a complete 
edition. 

(2) Weber never wrote a well-wrought book. His larger works are 
Iongish problem-centered 'research papers. Economy and Society is the 
only work conceived for a wider audience, but it never reached the stage 
of final literary form; moreover, it was simply not meant as a trot for 
introductory courses, or as the kind of polished study in cultural pessi- 
.mism so popular in the riineteen-twenties. v 

(3) Weber uses a profusion of quotation marks as an alienating 
device to indicate that he employs familiar terms with reservations, with 
a new meaning, or in an ironic sense. This habit was ihqjroiinterpoint to 
his concern with terminological precision and at times is a drawback. 
In the translation, the quotation marks were used more sparingly. 

(4) Weber tended to overqualify his sentences, using terms such as 

12$. Foe a sketch of tfak dialectic, see Guenther Roth and Bennett M. 
Berger, "Max Weber and die Grgraized Society," New York Times Book Review, 
April 3, 1966, 6 and 446 ^ 



C V 1 1 1 INTRODUCTION 

"perhaps," "more or less," "in general," "as a rule," "frequently but not 
always," etc. This reflected the difficulty both of formulating historical 
generalizations and of identifying a specific cause. Weber's sense of 
caution became a stylistic mannerism. 

Similar to the second and third volume of Das Kapital, Weber's 
work was edited from literary remains written in a scarcely legible hand- 
writing. The early editions of Wirtsckaft und Gesellschaft contained 
hundreds of reading and identification errors. For thirty-five years this 
distorted, or outright destroyed, the meaning of many passages and 
obviously affected the translations. In 1956, after many years of pains- 
taking labor, Johannes Winckelmann published his critically revised 
(fourth) edition. In close cooperation, Winckelmann and the English 
editors have decided on a large number of further changes in wording, 
clauses, names and dates; some of these have been incorporated in the 
1964 German paperback edition. The projected fifth edition will identify 
all these changes; listing them in the English edition would have been 
too cumbersome. The definitive German edition will be almost identical 
with the present English text, with the exception of Winckelmann's 
compilation of the Sociology of the State. 1 * 8 However, the German and 
English edition differ in the subheadings of the chapters. The manu- 
script had no subheadings, it seems, excepting the Sociology of Law, 
which in turn had no tide. The early editions summarized the chapter 
contents, often inadequately, below the chapter headings. Winckelmann 
extensively revised them. The English editTS&>roceeded at their own 
discretion and used subheadings in the text% improve its readability. 

The systematic checking of the text required considerable library 
research, invisible where there are no corrections and annotations. The 
revision of the extant translations proved almost as time-consuming and 
difficult as the new translation since every sentence had to be compared 
to the German £ext and changed if if appeared necessary for textual, 
terminological and, more rarely, stylistic reasons. Weber's skilful use of 
German syntax permits more complex construction than is feasible in 
English. Thus, Weber is not really improved by "streamlining," by 
breaking up his carefully balanced and qualified sentences into a series 
of linear constructs. A more linear "rendering was inevitable in the 
English version, but our inclination was to retain, and in some cases to 
restore, Weber's architecture. However, in most cases pragmatic pre- 

126. Like the German paperback edition of 1964, the English edition omits 
Weber's essay on "The Rational and Social Foundations of Music," which was 
not part of the original but was appended to the second German edition. For an 
English version, see the translation by Don Maitindale, Johannes Riedel and 
Gertrude Neuwirth (Carbondale: Southern Illinois University Press, io;8). 



ii. } On Editing and Translating Economy and Society C I X 

vailed over stylistic considerations, whether the revision of previous 
translations or our own formulations were involved. 

In most academic translations, the task involves prosaic accuracy, 
not an esthetic recreation. Academic translation should properly be team- 
work. Individual "heroism" is bound to be affected by the limitations of 
any single translator, as was proven by Parsons, Fischoff and Kolegar. 
Some of the English translations have been undertaken by two men, one 
familiar with each language. This arrangement could not, however, 
lighten the burden of the primary translator. Our translation was aided 
by two-fold familiarity with the original language, which permitted col- 
lateral reading and prevented premature closure by either one of us. 
Our revision of the extant translations has also been in the nature of * 
collateral reading, backed by the wisdom of hindsight. The ideal trans- 
lation, however, requires a third man : the stylist in the language of trans- 
lation. Our third man was missing. 

Everett C. Hughes once remarked that, as a matter of. principle, a 
work should only be translated as a whole. Each piecemeal translation 
tends to reduce the incentive for publishing the whole. This leads to 
unanticipated and fortuitous intellectual consequences. Theoretical de- 
velopments in American sociology have been considerably influenced 
by the vagaries of the Weber translations. Thus, the Gerth and Mills 
edition created the impression that the Sociology of Domination centers 
about the contrast of bureaucracy and charisma. Parsons' translation of 
only Part One perforce attenuated the historical dimension of the work 
and led some writers to believe that Weber did not follow up on his 
categories. 117 Weber's case is far from exceptional. In recent years it has 
become clear that the translations of Durkheim and Nietzsche have had 
similar distorting consequences. 

Without sustained support by foundations and institutes the desid- 
erata of academic translation cannot be fulfilled in most cases- This 
support has been lacking largely because translation and editing are the 
most underestimated kind of work in the social sciences. But as long as 
sociologists continue to lean on the Sociological Tradition, the need for 
translation will persist. Moreover, in an era of world-wide comparative 
research the linguistic problem will be perpetual without adequate trans- 
lation facilities and better linguistic training for social scientists. 

127. Since David Easton explicitly aimed at a forceful and incisive improve- 
ment of Weber, it appears legitimate to observe that his A Systems Analysis of 
Political Life (New York: Wiley, 1965) is a major example For some unintended 
consequences of the partial translations by Gerth and Mills and by Parsons. The 
Rheinstein-Shils translation, which would have corrected part of his interpreta- 
tion, was not consulted. This may be indicative of the difficulty to see partial 
translations as part of a whole. (See Easton, op. cit., 183, 281, 283, 301 ff.) 



ex 



INTRODUCTION 



13. Acknowledgements 

I owe thanks to many persons, foremost to the following: 

Reinhard Bendix, who has carried on the tradition of comparative 
study in creative adaptation to the American setting. In the late nineteen- 
fifties he gave me an opportunity, without insistence, to feel my way into 
Weber's work, to overcome some early preconceptions, and to watch the 
writing of his Max Weher. An Intellectual Portrait (1960); 

Juan Linz, a scholar of Weberian breadth, who insisted for a Ion g 
time on the necessity of a complete edition and kept wondering skeptic- 
ally who would take on the task; 

Benjamin Nelson, a critic with a Weberian temper, who suggested 
"rulership" as one translation of Herrschaft and insisted on standards 
to which mortals have difficulty measuring up; 

My wife, who accommodated my abstract preoccupation with the 
"oct-opus" in her sensuous household of flora and fauna and took out 
time to improve the style of the introduction. 

I greatly appreciate the support of the Research Foundation of the 
State University of New York (Stony Brook), which granted me fellow- 
ships in the summers of 1963 and 1964; the assistance of the Department 
of Sociology, University of California at Davis; the typing of Jeannette 
Freeman, who claims that she gained an education through it. 

It was a great pleasure to share the task with Claus Wittrch, narive of 
my hometown and fellow graduate of its classical school where we 
learned our basic linguistic and historical skills. 



PART ONE 

Conceptual Exposition 



CHAPTE 



hI 



BASIC SOCIOLOGICAL 
TERMS 



Prefatory Note 

An introductory discussion of concepts can hardly be dispensed with, 
in spite of the fact that it is unavoidably abstract and hence gives the 
impression of remoteness from reality. The method employed makes no 
claim to any kind of novelty. On the contrary it attempts only to formu- 
late what all empirical sociology really means when it deals with the 
same problems, in what it is hoped is a more convenient and somewhat 
more exact terminology, even though on that account it may seem 
pedantic. TTiis is true even where terms are used which are apparently 
new or unfamiliar. As compared to the author's essay in Logos, 1 the 
terminology has been simplified as far as possible and hence considerably 
changed in order to render it more easily understandable. The most 
precise formulation cannot always be reconciled with a form which can 
readily be popularized. In such cases the latter aim has had to be 
sacrificed. 

On the concept of "understanding" 2 compare the AUgemeine Psycho- 
pathologie of Karl Jaspers, also a few observations by Heinrich Rickert 
in the second edition of the Grenzen der naturwissenschaftlichen Be- 
griffshildung and particularly some of Simmel's discussions in the 
Probleme der Gesckichtsphilosophie. For certain methodological con- 
siderations the reader may here be referred, as often before in the 
author's writings, to the procedure of Friedrich Gottl in his work Die 
Herrsckaft des Wortes; this book, to be sure, is written in a somewhat 
difficult style and its argument does not appear everywhere to have been 
thoroughly thought through. As regards content, reference may be made 

[3] 



4 BASIC SOCIOLOGICAL TERMS [ Cfe. I 

especially to the fine work of Ferdinand Tonnies, Gemeinsckaft und 
Gesellschaft, and also to the gravely misleading book of Rudolf Stamm- 
let, Wirtschaft wnd Recht nach der materialistiscken Gesckichtsaufias- 
sung, which may be compared with my criticism in the Archiv fur 
Sozudwissenschaft (vol. 14, 1907, [GAzW, 291-359]). This critical 
essay contains many of the fundamental ideas of the following exposi- 
tion. The present work departs from Simmel's method (in his Soziologie 
and his Phihsophie des Geldes) in drawing a sharp distinction between 
subjectively intended and objectively valid "meanings"; two different 
things which Simmel not only fails to distinguish but often deliberately 
treats as belonging together. 



i . The Definition of Sociology and of Social Action 

Sociology (in the sense in which this-highly ambiguous word is used 
here) is a science concerning itself with the interpretive understanding 
of social action and thereby with a causal explanation of its course and 
consequences. We shall speak of "action" insofar as the acting individual 
attaches a subjective meaning to his behavior — be it overt or covert, 
omission or acquiescence. Action is "sociaTinsoiar as its subjective mean- 
ing takes account of the behavior of others and is thereby oriented in its 
course. 3 



A. METHODOLOGICAL FOUNDATIONS* 

i . "Meaning" may be of two kinds. The term may refer first to the 
actual existing meaning in the given concrete case of a particular actor, 
or to the average or approximate meaning attributable to a given plurality 
of actors; or secondly to the theoretically conceived pure type* of subjec- 
tive meaning attributed to the hypothetical actor or actors in a given 
type of action. In no case does it refer to an objectively "correct" mean- 
ing or one which is "true" in some metaphysical sense. It is this which 
distinguishes the empirical sciences of action, such as sociology and 
history, from the dogmatic disciplines in that area, such as jurisprudence, 
logic, ethics, and esthetics, which seek to ascertain the "true" and "valid" 
meanings associated with the objects of their investigation. 

2. The line between meaningful action and merely reactive behavior 
to which no subjective meaning is attached, cannot be sharply drawn 
empirically. A very considerable part of all sociologically relevant be- 
havior, especially purely traditional behavior, is marginal between the 



i ] Definitions of Sociology and of Social Action 5 

two. In the case of some psychophysical processes, meaningful, i.e., sub- 
jectively understandable, action is not to be found at all; in others it is 
discernible only by the psychologist. Many mystical experiences which 
cannot be adequately communicated in words are, for a person who is 
not susceptible to such experiences, not fully understandable. At the 
same time the ability to perform a similar action is not a necessary pre- 
requisite to- understanding; "one need not have been Caesar in order to 
' understand Caesar." "Recapturing an experience" is important for ac- 
curate understanding, but not an absolute precondition for its interpreta- 
tion. Understandable and non-understandable components of a process 
aje often intermingled and bound up together. 

3. All interpretation of meaning, like all scientific observations, 
strives for clarity and verifiable accuracy of insight and comprehension 
(EvicUnz).* The basis for certainty in understanding can be either 
rational, which can be further subdivided into logical and mathematical, 
or it can be of an emotionally empathic or artistically appreciative qual- 
ity. Action is rationally evident chiefly when we attain a completely clear 
'intellectual grasp of the action-elements in their intended context of 
meaning. Empathic or appreciative accuracy is attained when, through 
sympathetic participation, we can adequately grasp the emotional context 
in which the action took place. The highest degree of rational under- 
standing is attained in cases involving the meanings of logically or 
maEhematically related propositions; their meaning may be immediately 
and unambiguously intelligible. We have a perfectly clear understanding 
of what it means when somebody employs the proposition 2. X 2 = 4 or 
the Pythagorean theorem in reasoning or argument, or when someone 
correctly carries out a logical train of reasoning according to our accepted 
modes of thinking. In the same way we also understand, what a person 
is doing when he tries to achieve certain ends by choosing appropriate 
means on the basis of the facts of the situation, as experience has accus- 
tomed us to interpret them. The interpretation of such rationally pur- 
poseful action possesses, for the understanding of the choice of means, 
the highest degree of verifiable certainty. With a lower degree of 
certainty, which is, however, adequate for most purposes of explanation, 
we are able to understand errors, including confusion of problems of the 
sort that we ourselves are liable to, or the origin of which we can detect 
by sympathetic self-analysis. 

On the other hand, many ultimate ends or values toward which 
experience shows that human action may be oriented, often cannot be 
understood completely, though sometimes we are able to grasp them 
intellectually. The more radically they differ from our own ultimate 
values, however, the more difficult it is for us to understand them em- 



6 BASIC SOCIOLOGICAL TERMS [ Ch. I 

pathically. Depending upon the circumstances of the particular case we 
must be content either with a purely intellectual understanding of such 
values or when even that fails, sometimes we must simply accept them 
as given data. Then we can try to understand the action motivated by 
them on the basis of whatever opportunities for approximate emotional 
and intellectual interpretation seem to be available at different points in 
its course. These difficulties confront, for instance, people not susceptible 
to unusual acts of religious and charitable zeal, or persons who abhor 
extreme rationalist fanaticism (such as the fanatic advocacy of the 
"rights of man"). 

The more we ourselves are susceptible to such emotional reactions as 
anxiety, anger, ambition, envy, jealousy, love, enthusiasm, pride, venge- 
fulness, loyalty, devotion, and- appetites of all sorts, and to the "irrational" 
conduct which grows out of them, the more readily can we empathize 
with them. Even when such emotions are found in a degree of intensity 
of which the observer himself is completely incapable, he can still have 
a significant degree of emotional understanding of their meaning and 
can interpret intellectually their influence on the course of action and the 
selection of means. 

For the purposes of a typological scientific analysis it is convenient to 
treat all irrational, effectually determined elements of behavior as factors 
of deviation from a conceptually pure type of rational action. For ex- 
ample a panic on the stock exchange can be most conveniently analysed 
by attempting to determine first what the course of action would have 
been if it had not been influenced by irrational affects; it is then possible 
to introduce the irrational components as accounting for the observed 
deviations from this hypothetical course. Similarly, in analysing a polit- 
ical or military campaign it is convenient to determine in the first place 
what would have been a rational course, given the ends of the partici- 
pants and adequate knowledge of all the circumstances. Only in this 
way is it possible to assess the causal significance of irrational factors as 
accounting for the deviations from this type. The construction of a 
purely rational course of action in such cases serves the sociologist as 
a type (ideal type) which has the merit of clear understandability and 
lack of ambiguity. By comparison with this it is possible to understand 
the ways in which actual action is influenced by irrational factors of all 
sorts, such as affects and errors, in that they account for the deviation 
from the line of conduct which would be expected on the hypothesis 
that the action were purely rational. 

Only in this respect and for these reasons of methodological conven- 
ience is the method of sociology "rationalistic." It is naturally not legiti- 
mate to interpret this procedure as involving a rationalistic bias of 



i ] Definitions of Sociology and of Social Action . 7 

sociology, but only as a methodological device. It certainly does not in- 
volve a belief in the actual predominance of rational elements in human 
life, for on the question of how far this predominance does or does not 
exist, nothing whatever has been said. That there is, however, a danger 
of rationalistic interpretations where they are out of place cannot be 
denied. All experience unfortunately confirms the existence of this 
danger. 

4. In all the sciences of human action, account must be taken of 
processes and phenomena which are devoid of subjective meaning, in the 
role of stimuli, results, favoring or hindering circumstances. To be 
devoid of meaning is not identical with being lifeless or non-human; 
every artifact, such as for example a machine, can be understood only 
in terms of the meaning which its production and use have had or were 
intended to have; a meaning which may derive from a relation to exceed- 
ingly various purposes. Without reference to this meaning such an 
object remains wholly unintelligible. That which is intelligible or under- 
standable about it is thus its relation to human action in the role either 
'of means or of end; a relation of which the actor or actors can be said to 
have been aware and to which their action has been oriented. Only in 
terms of such categories isit possible to "understand" objects of this kind. 
On the other hand processes or conditions, whether they are animate or 
inanimate, human or non-human, are in the present sense devoid of 
meaning in so far as they cannot be related to an intended purpose. That 
is to say they are devoid of meaning if they cannot be related to action 
in the role of means or ends but constitute only the stimulus, the favor- 
ing or hindering circumstances. It may be that the flooding of the 
DoIIart [at the mouth of the Ems river near the Dutch-German border] 
in 1277 had historical significance as a stimulus to the beginning of 
certain migrations of considerable importance. Human mortality, indeed 
the organic life cycle from the helplessness of infancy to that of old age, 
is naturally of the very greatest sociological importance through the 
various ways in which human action has been oriented to these facts. 
To still another category of facts devoid of meaning, belong certain 
psychic or psychophysical phenomena such as fatigue, habituation, 
memory, etc.; also certain typical states of euphoria under some condi- 
tions of ascetic mortification; finally, typical variations in the reactions of 
individuals according to reaction-time, precision, and other modes. But 
in the last analysis the same principle applies to these as to other 
phenomena which are devoid of meaning. Both the actor and the soci- 
ologist must accept them as data to be taken into account. 

It is possible that future research may be able to discover non- 
interpretable uniformities underlying what has appeared to be specif- 



8 BASIC SOCIOLOGICAL TERMS [Ch. 1 

ically meaningful action, though little has been accomplished in this 
direction thus far. Thus, for example, differences in hereditary biological 
constitution, as of "races," would have to be treated by sociology as given 
data in the same way as the physiological facts of the need of nutrition 
or the effect of senescence on action. This would be the case if, and in- 
sofar as, we had statistically conclusive proof of their influence on socio- 
logically relevant behavior. The recognition of the causal significance 
of such factors would not in the least alter the specific task of sociological 
analysis or of that of the other sciences of action, which is the interpreta- 
tion of action in terms of its subjective meaning. The effect would be 
orly to introduce certain non-interpretable data of the same order as 
others which are already present, into the complex of subjectively under- 
standable motivation at certain points. (Thus it may come to be known 
that there are typical relations between the frequency of certain types of 
teleological orientation of action or of the degree of certain kinds of 
rationality and the cephalic index or skin color or any other biologically 
inherited characteristic.) 

5. Understanding may be of two kinds: the first is the direct observa- 
tional understanding 7 of the subjective meaning of a given act as such, 
including verbal utterances. We thus understand by direct observation, 
in this case, the meaning of the proposition 2X2 — 4 when we hear 
or read it. This is a case of the direct rational understanding of ideas. 
We also understand an outbreak of anger as manifested by facial expres- 
sion, exclamations or irrational movements. This is direct observational 
understanding of irrational emotional reactions. We can understand in 
a similar observational way the action of a woodcutter or of somebody 
who reaches for the knob to shut a door or who aims a gun at an animal. 
This is rational observational understanding of actions. 

Understanding may, however, be of another sort, namely explanatory 
understanding. Thus we understand in terms of motive the meaning an 
actor attaches to the proposition twice two equals four, when he states 
it or writes it down, in that we understand what makes him do this at 
precisely this moment and in these circumstances. Understanding in this 
sense is attained if we know that he is engaged in balancing a ledger or 
in making a scientific demonstration, or is engaged in some other task 
of which this particular act would be an appropriate part. This is ra- 
tional understanding of motivation, which consists in placing the act in 
an intelligible and more inclusive context of meaning.* Thus we under- 
stand the chopping of wood or aiming of a gun in terms of motive in 
addition {o direct observation if we know that the woodchopper is work- 
ing for a "Wage or is chopping a supply of firewood for his own use or 
possibly is doing it for recreation. But he might also be working off a 



i ] _ Definitions of Sociology and of Social Action 9 

fit of rage, an irrational case. Similarly we understand the motive of a 
person aiming a gun if we know that he has been commanded to shoot 
as a member of a firing squad, that he is fighting against an enemy, or 
that he is doing it for revenge. The last is affectually determined and 
thus in a certain sense irrational. Finally we have a motivational under- 
standing of the outburst of anger if we know that it has been provoked 
by jealousy, injured pride, or an insult. The last examples are all affec- 
tually determined and hence derived from irrational motives. In all the 
above cases the particular act has been placed in an understandable 
sequence of motivation, the understanding of which can be treated as an 
explanation of the actual course of behavior. Thus for a science which 
is concerned with the subjective meaning of action, explanation requires 
a grasp of the complex of meaning in which an actual course of under- 
standable action thus interpreted belongs, In all such cases, even where 
the processes are largely affectual, the subjective meaning of the action, 
including that also of the relevant meaning complexes, will be called the 
'intended meaning. 6 (This involves a departure from ordinary usage, 
which speaks of intention in this sense only in the case of rationally pur- 
posive action.) 

6. In all these cases understanding involves the interpretive grasp of 
the meaning present in one of the following contexts: (a) as in the his- 
toricaj approach, the actually intended meaning for concrete individual 
action; or (b) as in cases of sociological mass phenomena, the average of, 
or an approximation to, the actually intended meaning; or (c) the mean- 
ing appropriate to a scientifically formulated pure type Can ideal type) 
of a common phenomenon. The concepts and "laws" of pure economic 
theory are examples of this kind of ideal type. They state what course a 
given type of human action would take if it were strictly rational, un- 
affected by errors r>r emotional factors and if, furthermore, it were com- 
pletely and unequivocally directed to a single end, the maximization of 
economic advantage. In reality, action takes exactly this course only in 
unusual cases, as sometimes on the stock exchange; and even then there 
is usually only an approximation to the ideal type. (On the purpose of 
such constructions, see my essay in AfS, 19 [cf. n, 5] and point 1 1 below.) 

Every interpretation attempts to attain clarity and certainty, but no 
matter how clear an interpretation as such appears to be from the point 
of view of meaning, it cannot on this account claim to he the causally 
valid interpretation. On this level it must remain only a peculiarly 
plausible hypothesis. In the first place the "conscious motives" may well, 
even to the actor himself, conceal the various "motives" and "repressions" 
which constitute the real driving force of his action. Thus in such cases 
even subjectively honest self-analysis has only a relative value. Then it 



I O BASIC SOCIOLOGICAL TERMS [ Ch. I 

is the task of the sociologist to be aware of this motivational situation 
and to describe and analyse it, even though it has not actually been con- 
cretely part of the conscious intention of the actor; possibly not at all, 
at least not fully. This is a borderline case of the interpretation of mean- 
ing. Secondly, processes of action which seem to an observer to be the 
same or similar may fit into exceedingly various complexes of motive in 
the case of the actual actor. Then even though the situations appear 
superficially to be very similar we must actually understand them or 
interpret them as very different, perhaps, in terms of meaning, direcdy 
opposed. (Simmel, in his Probleme der Geschichtsphilosaphie, gives a 
number of examples.) Third, the actors in any given situation are often 
subject to opposing and conflicting impulses, all of which we are able to 
understand. In a large number of cases we know from experience it is 
not, possible to arrive at even an approximate estimate of tne relative 
strength of conflicting motives and very often we cannot be certain of 
our interpretation. Only the actual outcome of the conflict gives a solid 
basis of judgment. 

More generally, verification of subjective interpretation by compari- 
son with the concrete course of events is, as in the case of all hypotheses, 
indispensable. Unfortunately this type of verification is feasible with 
relative accuracy only in the few very special cases susceptible of 
psychological experimentation. In very different degrees of approximation, 
such verification is also feasible in the limited number of cases of mass 
phenomena which can be statistically described and unambiguously 
interpreted. For the rest there remains only the possibility of comparing 
the largest possible number of historical or contemporary processes 
which, while otherwise similar, -differ in the one decisive point of their 
relation to the particular motive or factor the role of which is being 
investigated. This is a fundamental task of comparative sociology. 
Often, unfortunately, there is available only the uncertain procedure 
of the "imaginary experiment" which consists in thinking away certain 
elements of a chain of motivation and working out the course of action 
which would then probably ensue, thus arriving at a causal judgment." 

For example, the generalization called Gresham's Law is a rationally 
clear interpretation of human action under certain conditions and under 
the assumption that it will follow a purely rational course. How far any 
actual course of action corresponds to this can be verified only by the 
available statistical evidence for the actual disappearance of under-valued 
monetary units from circulation. In this case our information serves to 
demonstrate a high degree of accuracy. The facts of experience were 
known before the generalization, which was formulated afterwards; 
but without this successful interpretation our need for causal understand- 



i ] Definitions of Sociology and of Social Action i i 

ing would evidently be left unsatisfied. On the other hand, without the 
demonstration that what can here be assumed to be a theoretically ade- 
quate interpretation also is in some degree relevant to an actual course 
of action, a "law," no matter how fully demonstrated theoretically, would 
be worthless for the understanding of action in the rea* world. In this 
case the correspondence between the theoretical interpretation of motiva- 
tion and its empirical verification is entirely satisfactory and the cases are 
numerous enough so that verification can be considered established. But 
to take another example, Eduard Meyer has advanced an ingenious 
theory of the causal significance of the batdes of Marathon, Salamis, and 
Platea for the development of the cultural peculiarities of Greek, and 
hence, more generally, Western, civilization." This is derived from a 
meaningful interpretation of certain symptomatic facts having to do 
with the attitudes of the Greek oracles and prophets towards the Per- 
sians. It can only be direcdy verified by reference to the examples of the 
conduct of the Persians in cases where they were victorious, as in 
Jerusalem, Egypt, and Asia Minor, and even this verification must neces- 
^sarily remain unsatisfactory in certain respects. The striking rational 
plausibility of the hypothesis must here necessarily be relied on as a sup- 
port. In very many cases of historical interpretation which seem highly 
plausible, however, there is not even a possibility of the order of verifica- 
tion which was feasible in this case. Where this is true the interpretation 
must necessarily remain a hypothesis. 

7. A motive is a complex of subjective meaning which seems to the 
actor himself or to the observer an adequate ground for the conduct in 
question. The interpretation of a coherent course of- conduct is "sub- 
jectively adequate" (or "adequate on the level of meaning"), insofar as, 
according to our habitual modes of thought and feeling, its component 
parts taken in their mutual relation are recognized to constitute a 
"typical" complex of meaning." It is more common to say "correct." The 
interpretation of a sequence of events will on the other hand be called 
causally adequate insofar as, according to established generalizations 
from experience, there is a probability that it will always actually occur 
in the same way. An example of adequacy on the level of meaning 
in this sense is what is, according to our current norms of calculation or 
thinking, the correct solution of an arithmetical problem. On the other 
hand, a causally adequate interpretation of the same phenomenon would 
concern the statistical probability that, according to verified generaliza- 
tions from experience, there would be a correct or an erroneous solution 
of the same problem. This also refers to currendy accepted norms but 
includes taking account of typical errors or of typical confusions. Thus 
causal explanation depends on being able to determine that there is a 



I 2 BASIC SOCIOLOGICAL TERMS [ Ck. 1 

probability, which in the rare ideal case can be numerically stated, but is 
always in some sense calculable, that a given observable event (overt or 
subjective) will be followed or accompanied by another event. 

A correct causal interpretation of a concrete course of action is arrived 
at when the overt action and the motives have both been correctly appre- 
hended and at the same time their relation has become meaningfully 
comprehensible. A correct causal interpretation of typical action means 
that the process which is claimed to be typical is shown to be both ade- 
quately grasped on the level of meaning and at the same time the inter- 
pretation is to some degree causally adequate- If adequacy in respect to 
meaning is lacking, then no matter how high the degree of uniformity 
and how precisely its probability can be numerically determined, it is 
still an incomprehensible statistical probability, whether we deal with 
overt or subjective processes. On the other hand, even the most perfect 
adequacy on the level of meaning has causal significance from a socio- 
logical point of view only insofar as there is some kind of proof for the 
existence of a probability" that action in fact normally takes the course 
which has been held to be meaningful. For this there must be some 
degree of determinable frequency of approximation to an average or a 
pure type. 

Statistical uniformities constitute understandable types of action, and 
thus constitute sociological generalizations, only when they can be 
regarded as manifestations of the understandable subjective meaning of 
a course of social action. Conversely, formulations of a rational course 
of subjectively understandable action constitute sociological types of 
empirical process only when they can be empirically observed with a, 
significant degree of approximation. By no means is the actual likelihood 
of the occurrence of a given course of overt action always direcdy pro- 
portional to the clarity of subjective interpretation. Only actual experi- 
ence can prove whether this is so in a given case. There are statistics of 
processes devoid of subjective meaning, such as death rates, phenomena 
of fatigue, the production rate of machines, the amount of rainfall, in 
exacdy the same sense as there are statistics of meaningful phenomena. 
But only when the phenomena are meaningful do we speak of socio- 
logical statistics. Examples are such cases as crime rates, occupational 
distributions, price statistics, and statistics of crop acreage. Naturally 
there are many cases where both components are involved, as in crop 
statistics. 

8. Processes and uniformities which it has here seemed convenient 
not to designate as sociological phenomena or uniformities because they 
are not "understandable," are naturally not on that account any the less 
important. This is true even for sociology in our sense which is restricted 



r ] _ Definitions of Sociology and of Social Action i 3 

to subjectively understandable phenomena — a usage which there is no 
intention of attempting to impose on anyone else. Such phenomena, 
however important, are simply treated by a different method from the 
others; they become conditions, stimuli, furthering or hindering circum- 
stances of action. 

9. Action in the sense of subjectively understandable orientation of 
behavior exists only as the behavior of one or more individual human 
beings. For other cognitive purposes it may be useful or necessary to 
consider the individual, for instance, as a collection of cells, as a complex 
of bio-chemical reactions, or to conceive his psychic life as made up of 
a variety of different elements, however these may be defined. Undoubt- 
edly such procedures yield valuable knowledge of causal relationships. 
But the behavior of these elements, as expressed in such uniformities, 
is not subjectively understandable. This is true even of psychic elements 
because the more precisely they are formulated from a point of view of 
natural science, the less they are accessible to subjective understanding. 
This is never the road to interpretation in terms of subjective meaning. 
On the contrary, both for sociology in the present sense, and for history, 
the object of cognition is the subjective meaning-complex of action. The 
behavior of physiological entities such as cells, or of any sort of psychic 
elements, may at least in principle be observed and an attempt made to 
derive uniformities from such observations. It is further possible to 
attempt, with their help, to obtain a causal explanation of individual phe- 
nomena, that is, to subsume them under uniformities. But the subjective 
understanding of action takes the same account of this type of fact and 
uniformity as of any others not capable of subjective interpretation. 
(This is true, for example, of physical, astronomical, geological, meteor- 
ological, geographical, botanical, zoological, and anatomical Facts, of those 
aspects of psycho-pathology which are devoid of subjective meaning, or 
of the natural conditions of technological processes.) 

For still other cognitive purposes — for instance, juristic ones — or for 
' practical ends, it may on the other hand be convenient or even indispensa- 
ble to treat social collectivities, such as states, associations, business corpora- 
tions, foundations, as if they were individual persons. Thus they may be 
treated as the subjects of rights and duties or as the performers of legally 
significant actions. But for the subjective interpretation of action in socio- 
logical work these collectivities must be treated as solely the resultants 
and modes of organization of the particular acts of individual persons, 
since these alone can be treated as agents in a course of subjectively 
understandable action. Nevertheless, the sociologist cannot for his pur- 
poses afford to ignore these collective concepts derived from other 
disciplines. For the subjective interpretation of action has at least three 



I 4 BASIC SOCIOLOGICAL TERMS [ Cfc. I 

important relations to these concepts. In the first place it is often neces- 
sary to employ very similar collective concepts, indeed often using the 
same terms, in order to obtain an intelligible terminology. Thus both in 
legal terminology and in everyday speech the term "state" is used both 
for the legal concept of the state and for the phenomena of social action 
to which its legal rules are relevant. For sociological purposes, however, 
d.e phenomenon "the sate" does not consist necessarily or even primarily 
of the elements which axe relevant to legal analysis; and for sociological 
purposes there is no such thing as a collective personality which "acts." 
When reference is made in a sociological context to a state, a nation, a 
corporation, a family, or an army corps, or to similar collectivities, 
what is meant is, on the contrary, only a certain kind of development of 
actual or possible social actions of individual persons. Both because of its 
precision and because it is established in general usage the juristic con- 
cept is taken over, but is used in an entirely different meaning. 

Secondly, the subjective interpretation of action must take account 
of a fundamentally important fact. These concepts of collective entities 
which are found both in common sense and in juristic and other tech- 
nical forms of thought, have a meaning in the minds of individual per- 
sons, partly as of something actually existing, partly as something with 
normative authority. This is true not only of judges and officials, but of 
ordinary private individuals as well. Actors thus in part orient their 
action to them, and in this role such ideas have a powerful, often a 
decisive, causal influence on the course of action of real individuals. This 
is above all true where the ideas involve normative prescription or pro- 
hibition. Thus, for instance, one of the important aspects, of the exist- 
ence of a modem state, precisely as a complex of* serial interaction of 
individual persons, consists in the fact that the action of various indi- 
viduals is oriented to the belief that it exists or should existj thus that 
its acts and laws are valid in the legal sense. This will be further dis- 
cussed below. Though extremely pedantic and cumbersome, it would be 
possible, if purposes of sociological terminology alone were involved, to 
.eliminate such terms entirely, and substitute newly-coined words. This 
would be possible even though the word "state" is used ordinarily not 
only to designate the legal concept but also the real process of action. 
But in the above important connexion, at least, this would naturally be 
impossible. 

Thirdly, it is the method of the so-called "organic" school of sociology 
— classical example: SchaffVs brilliant work, Bau und Leben des 
soztalen Korpers — to attempt to understand social interaction by using as 
a point of departure the "whole" within which the individual acts. His 
action and behavior are then interpreted somewhat in the way that a 



i ] _ Definitions of Sociology and of Social Action i 5 

physiologist would treat the role of an organ of the body in the "economy" 
of the organism, that is from the point of view of the survival of the 
latter. (Compare the famous dictum of a well-known physiologist: "Sec. 
10. The spleen. Of the spleen, gendemen, we know nothing. So much 
for the spleen." Actually, of course, he knew a good deal about the 
spleen — its position, size, shape, etc.; but he could say nothing about its 
function, and it was his inability to do this that he called "ignorance.") 
How far in other disciplines this type of functional analysis of the rela- 
tion of "parts" to a "whole" can be regarded as definitive, cannot be dis- 
cussed here; but it is well known that the bio-chemical and bio-physical 
modes of analysis of the organism are on principle opposed to stopping 
there. For purposes of sociological analysis two things can be said. First 
this functional frame of reference is convenient for purposes of practical 
illustration and for provisional orientation. In these respects, it is not 
only useful but indispensable. But at the same time if its cognitive value 
is overestimated and its concepts illegitimately "reified," 14 it can be highly 
^dangerous. Secondly, in certain circumstances this is the only available 
way of determining just what processes of social action it is important to 
understand in order to explain a given phenomenon. But this is only the 
beginning of sociological analysis as here understood. In the case of 
social collectivities, precisely as distinguished from organisms, we are in 
a position to go beyond merely demonstrating functional relationships 
and uniformities. We can accomplish something which is never attain- 
able in the natural sciences, namely the subjective understanding of the 
action of the component individuals. The natural sciences on the other 
hand cannot do this, being limited to the formulation of causal uni- 
formities in objects and events and the explanation of individual facts 
by applying them. We do not "understand" the behavior of cells, but can 
only observe the relevant functional relationships and generalize on the 
basis of these observations. This additional achievement of explanation 
by interpretive understanding, as distinguished from external observa- 
tion, is of course attained only at a price — the more hypothetical and 
fragmentary character of its results. Nevertheless, subjective understand- 
ing is the specific characteristic of sociological knowledge. 

It would lead too far afield even to attempt to discuss how far the 
behavior of animals is subjectively understandable to us and vice veisa; 
in both cases the meaning of the term understanding and its extent of 
application would be highly problematical. But in so far as such under- 
standing existed it would be theoretically possible to formulate a sociol- 
ogy of the relations of men to animals, both domestic and wild. Thus 
many animals "understand" commands, anger, love, hostility, and react to 
them in ways which are evidently often by no means purely instinctive 



I 6 BASIC SOCIOLOGICAL TERMS [ Ck. I 

and mechanical and in some sense both consciously meaningful and 
affected by experience. In a way, our ability to share the feelings of 
primitive men is not very much greater. We either do not have any 
reliable means of determining the subjective state of mind of an animal 
or what we have is at best very unsatisfactory. It is well known that the 
problems of animal psychology, however interesting, are very thorny 
ones. There are in particular various forms of social organization among 
animals: monogamous and polygamous "families/' herds, Hocks, and 
finally "states," with a functional division of labour. (The extent of func- 
tional differentiation found in these animal societies is by no means, 
however, entirely a matter of the degree of organic or morphological 
differentiation of the individual members of the species. Thus, the func- 
tional differentiation found among the termites, and in consequence that 
of the products of their social activities, is much more advanced than in 
the case of the bees and ants.) In this field it goes without saying that a 
purely functional point of view is often the best that can, at least for the 
present, be attained, and the investigator must be content with it Thus 
it is possible to study the ways in which the species provides for its 
survival; that is, for nutrition, defence, reproduction, and reconstruction 
of the social units. As the principal bearers of these functions, differenti- 
ated types of individuals can be identified: "kings," "queens," "workers," 
"soldiers," "drones," "propagators," "queen's substitutes," and so on. Any- 
thing more than that was for a long time merely a matter of speculation 
or of an attempt to determine the extent to which* heredity on the one 
hand and environment on the other would be involved in the develop-, 
ment of these "social" proclivities. This was particularly true of the con- 
troversies between Gotte and Weismann. 1 * The latter's conception in Die 
AUmacht der Natwztichtung was largely based on wholly non-empirical 
deductions. But all serious authorities are naturally fully agreed that the 
limitation of analysis to the functional level is only a necessity imposed 
by our present ignorance, which it is hoped will only be temporary. (For 
an account of the state of knowledge of the termites, for example, see 
the study by Karl Escherich, Die Termiten oder weissen Ameisen, 
1909.) 
' \ The researchers would like to understand not only the relatively 
obvious survival functions of these various differentiated types, but also 
the bearing of different variants of the theory of heredity or its reverse 
On the problem of explaining how these differentiations have come 
about. Moreover, they would like to know first what factors account for 
the original differentiation of specialized types from the still neutral 
undifferentiated species-type. Secondly, it would be important to know 
what leads the differentiated individual in the typical case to behave 



i ] Definitions of Sociology and of Social Action I 7 

in a way^which actually serves the survival value of the organized group. 
Wherever research has made any progress in the solution of these prob- 
lems it has been through the experimental demonstration of the prob- 
ability or possibility of the role of chemical stimuli or physiological 
processes, such as nutritional states, the effects of parasitic castration, 
etc., in the case of the individual organism. How far there is even a 
hope that the existence of "subjective" or "meaningful" orienntion could 
be made experimentally probable, even the specialist today would hardly 
be in a position to say. A verifiable conception of the state of mind of 
these social animals accessible to meaningful understanding, would seem 
to be attainable even as an ideal goal only within narrow limits. How- 
ever that may be, a contribution to the understanding of human social 
action is hardly to be expected from this quarter. On the contrary, in the 
field of animal psychology, human analogies are and must be continually 
employed. The most that can he hoped for is, then, that these biological 
analogies may some day be useful in suggesting significant problems. 
For instance they may throw light on the question of the relative role in 
,the early stages of human social differentiation of mechanical and in- 
stinctive factors, as compared with that of the factors which are accessible 
to subjective interpretation generally, and more particularly to the role 
of consciously rational action. It is necessary for the sociologist to be 
thoroughly aware of the fact that in the early stages even of human 
development, the first set of factors is completely predominant. Even in 
the later stages he must take account of their continual interaction with 
the others in a role which is often of decisive importance. This is par- 
ticularly true of all "traditional" action and of many aspects of charisma, 
which contain the seeds of certain types of psychic "contagion" and thus 
give rise to new social developments. These types of action are very 
closely related to phenomena which are understandable either only 
in biological terms or can be interpreted in terms of subjective motives 
only in fragments. But all these facts do not discharge sociology from the 
obligation, in full awareness of the narrow limits to which it is confined, 
to accomplish what it alone can do. 

The various works of Othmar Spann [1878-1950] are often full of 
suggestive ideas though at the same time he is guilty of occasional mis- 
understandings and above all of arguing on the basis of pure value 
judgments which have no place in an empirical investigation. But he is 
undoubtedly correct in doing something to which, however, no one seri- 
ously objects, namely, emphasizing the sociological significance of the 
functional point of view for preliminary orientation to problems. This is 
what he calls the "universalistic method." It is true that we must know 
what kind of action is functionally necessary for "survival," but even 



i 8 BASIC SOCIOLOGICAL TERMS _ [ Ch. 1 

more so for the maintenance of a cultural type and the continuity of the 
corresponding modes of social action, before it is possible even to inquire 
how this aaio.i has come about and what motives determine it. It is 
necessary to know what a "king," an "official," an "entrepreneur," a 
"procurer," or a "magician" does, that is, what kind of typical action, which 
justifies classifying an individual in one of these" categories, is important 
and relevant for an analysis, before it is possible to undertake the analysis 
itself. (This is what Rickert means by Wertbezogenheit.*) But it is only 
this analysis itself which can achieve the sociological understanding of 
the actions of typically differentiated human (and only human) indi- 
viduals, and which hence constitutes the specific function of sociology. 
It is a tremendous misunderstanding to think that an "individualistic" 
method should involve what is in any conceivable sense an individualistic 
system of values. It is as important to avoid this error as the related one 
which confuses the unavoidable tendency of sociological concepts to as- 
sume a rationalistic character with a belief in the predominance of 
rational motives, or even a positive valuation of rationalism. Even a 
socialistic economy would have to be understood sociologically in exacdy 
the same kind of "individualistic" terms; that is, in terms of the action 
of individuals, the types of officials found in it, as would be the case 
with a system of free exchange analysed in terms of the theory of mar- 
ginal utility or a "better," but in this respect similar theory). The real 
empirical sociological investigation begins with the question: What 
motives determine and lead the individual members and participants in 
this socialistic community to behave in such a way that the community 
came into being in the first place and that it continues to exist? Any ' 
form of functional analysis which proceeds from the whole to the parts 
can accomplish only a preliminary preparation for this investigation — 
a preparation, the utility and indispensability of which, if properly car- 
ried out, is naturally beyond question. 

10. It is customary to designate various sociological generalizations, 
as for example "Gresham's Law," as "laws." These are in fact typical 
probabilities confirmed by observation to the effect that under certain 
given conditions an expected course of social action will occur, which is 
understandable in terms of the typical motiyes and typical subjective 
intentions of the actors. These generalizations are both understandable 
and definite in the highest degree insofar as the typically observed course 
of action can be Understood in terms of the purely rational pursuit of 
an end, or where for reasons of methodological convenience such a 
theoretical type can be heuristically employed. In surh cases the relations 
of means and end will be clearly understandable on grounds of experi- 
ence, particularly where the choice of means was "inevitable." In such 



i ] _ Definitions of Sociology and of Social Action i 9 

cases it is legitimate to assert that insofar as the action was rigorously 
rational it could not have taken any other course because for technical 
reasons, given their clearly defined ends, no other means were available 
to the actors. This very case demonstrates how erroneous it is to regard 
any kind of psychology as the ultimate foundation of the sociological 
interpretation of action. The term psychology, to be sure, is today 
understood in a wide variety of senses. For certain cjuite specific method- 
ological purposes the type of treatment which attempts to follow the 
procedures of the natural sciences employs a distinction between 
"physical" and "psychic" phenomena which is entirely foreign to the 
disciplines concerned with human action, at least in the present sense. 
The results of a type of psychological investigation which employs the 
methods of the natural sciences in any one of various possible ways may 
naturally, like the results of any other science, have outstanding signif- 
icance for sociological problems; indeed this has often happened. But 
this use of the results of psychology is something quite different from 
*the investigation of human behavior in terms of its subjective meaning. 
Hence sociology has no closer relationship on a general analytical level 
to this type of psychology than to any other science. The source of error 
lies in the concept of the "psychic." It is held that everything which is 
not physical is ipso facto psychic. However, the meaning of a train of 
mathematical reasoning which a person carries out is not in the relevant 
sense "psychic." Similarly the rational deliberation of an actor as to 
whether the results of a given proposed course of action will or will not 
proinota certain specific interests, and the corresponding decision, do 
not become one bit more understandable by taking "psychological" con- 
siderations into account. But it is Jfrecisely on the basis of such rational 
assumptions that most of the taws of sociology, including those of eco- 
nomics, are built up. On the other hand, in explaining the irrationalities 
of action sociologically, that form of psychology which employs the 
method of subjective understanding undoubtedly can make decisively 
important contributions. But this does not alter the fundamental . ierf]- 
odological situation, 

1 r. We have taken for granted that sociology seeks to formulate type 
concepts and generalized uniformities of empirical process. This dis- 
tinguishes it from history/which is oriented to the causal analysis and 
explanation of individual actions, structures, and personalities possessing 
cultural significance. The empirical material which underlies the con- 
cepts of sociology consists to a very large extent, though by no means 
exclusively, of the same concrete processes of action which are dealt witjb 
by historians. An important consideration in the formulation of soci- 
ological concepts and generalizations is the contribution that sociology 



2 BASIC SOCIOLOGICAL TERMS [Ch. I 

can make toward the causal explanation of some historically and cul- 
turally important phenomenon. As in the case of every generalizing 
science the abstract character of the concepts of sociology is responsible 
for the fact that, compared with actual historical reality, they are rela- 
tively lacking in fullness of concrete content. To compensate for this 
disadvantage, sociological analysis can offer a greater precision of con- 
cepts. This precision is obtained by striving for the highest possible 
degree of adequacy on the level of meaning. It has already been re- 
peatedly stressed that this aim can be realized in a particularly high 
degree in the case of concepts and generalizations which formulate 
rational processes. But sociological investigation attempts to include in 
its scope various irrational phenomena, such as prophetic, mystic, and 
affectual modes of action, formulated in terms of theoretical concepts 
which are adequate on the level of meaning. In all cases, rational or 
.irrational, sociological analysis both abstracts from reality and at the 
same time helps us to understand it, in that it shows with what degree of 
approximation a concrete historical phenomenon can be subsumed under 
one or more of these concepts. For example, the same historical phenome- 
non may be in one aspect feudal, in another patrimonial, in another 
bureaucratic, and in still another charismatic. In order to give a pre- 
cise meaning to these terms, it is necessary for the sociologist to formulate 
pure ideal types of the corresponding forms of action which in each case 
involve the highest possible degree of logical integration by virtue of 
their complete adequacy on the level of meaning. But precisely because 
this is true, it is probably seldom if ever that a real phenomenon can be 
found which corresponds exactly to one of these ideally constructed pure 
types. The case is similar to a physical reaction which has been cal- 
culated on the assumption of an absolute vacuum. Theoretical differ- 
entiation (Ka$: isHk) is possible in sociology only in terms of ideal or 
pure types. It goes ithout saying that in addition it is convenient for 
the sociologist from time to time to employ average types of an em- 
pirical statistical character, concepts which do not require methodological 
discussion. But when reference is made to "typical" cases, the term should 
always be understood, unless otherwise stated, as meaning ideal types, 
which may in turn be: rational or irrational as the case may be (thus 
in economic theory they are always rational), but in any case are always 
constructed with a view to adequacy on the level of meaning. 

It is important to realize that in the sociological field as elsewhere, 
averages, and hence average types, can be formulated with a relative 
degree of precision only when* (hey are concerned with differences of 
degree in respect to action which remains qualitatively the same. Such 
cases do occur, but in the majority of cases of action important to. history 



i ] - Definitions of Sociology and of Social Action 2 1 

or sociology the motives which determine it are qualitatively heterogene- 
ous. Then it is quite impossible to speak of an "average" in the true sense. 
The ideal types of social action which for instance are used in economic 
theory are thus unrealistic or abstract in that they always ask what course 
of action would take place if it were purely rational and oriented to 
economic ends alone. This construction can be used to aid in the under- 
standing of action not purely economically determined but which in- 
volves deviations arising from traditional restraints, affects, errors, and 
the intrusion of other than economic purposes or considerations. This 
can take place in two ways. First, in analysing the extent to which in the 
concrete case, or on the average for a class of cases, the action was in 
part economically determined along with the other factors. Secondly, by 
throwing the discrepancy between the actual course of events and the 
ideal type into relief, the analysis of the non-economic motives actually 
involved is facilitated. The procedure would be very similar in employ- 
ing an ideal type of mystical orientation, with its appropriate attitude of 
Indifference to worldly things, as a tool for analysing its consequences 
for the actors relation to ordinary life — for instance, to political or eco- 
nomic affairs. The more sharply and precisely the ideal type has been 
constructed, thus the more abstract and unrealistic in this sense it is, the 
better it is able to perform its functions in formulating terminology, 
classifications, and hypotheses. In working out a concrete causal explana- 
tion of individual events, the procedure of the historian is essentially the 
same. Thus in attempting to explain the campaign of 1866, it is in- 
dispensable both in the case of Moltke and of Benedek to attempt to 
construct imaginatively how each, given fully adequate knowledge both 
of his own situation and of that of his opponent, would have acted. 
Then it is possible to compare with this the actual course of action and 
to arrive at a causal explanation of the observed deviations, which will 
he attributed to such factors as misinformation, strategical errors, logical 
fallacies, personal temperament, or considerations outside the realm of 
strategy. Here, too, an ideal-typical construction of rational action is 
actually employed even though it is not made explicit. 

The theoretical^ concepts of sociology are ideal types not only from the 
objective point of view, but also in their application to subjective proc- 
esses. In the great majority of cases actual action goes on in a state of in- 
articulate half-consciousness or actual unconsciousness of its subjective 
meaning. The actor is more likely to "be aware" of it in a vague sense than 
he is to "know" what he is doing or be explicitly self-conscious about it. 
In most cases his action is governed by impulse or habit. Only occasion- 
ally and, in the uniform action of large numbers, often- only in the case 
of a few individuals, is the subjective meaning of the action, whether 



2 2 BASIC SOCIOLOGICAL TERMS [ Ck*. I 

rational or irrational, brought clearly into consciousness. The ideal type 
of meaningful action where the meaning is fully conscious and explicit 
is a marginal case. Every sociological or historical investigation, in apply- 
ing its analysis to the empirical facts, must take this fact into account. 
But the difficulty need not prevent the sociologist from systematizing his 
concepts by the classification of possible types of subjective meaning. 
That is, he may reason as if action actually proceeded on the basis of 
clearly self-conscious meaning. The resulting deviation from the concrete 
facts must continually be kept in mind whenever it is a question of this 
level of concreteness, and must be carefully studied with reference both 
to degree and kind. It is often necessary to choose between terms which 
are either clear or unclear. Those which are clear will, to be sure, have 
the abstractness of ideal types, but they are none the less preferable for 
scientific purposes. (On all these questions see " 'Objectivity' in Social 
Science and Social Policy,") 



B. SOCIAL ACTION 

i. Social action, which includes both failure to act and passive 
acquiescence, may be oriented to the past, present, or expected future 
behavior of others. Thus it may be motivated by revenge for a past 
attack, defence against present, or measures of defence against future 
aggression. The "others" may be individual persons, and may be known 
to the actor as such, or may constitute an indefinite plurality and may 
be entirely Unknown as individuals. (Thus, money is a means of ex- 
chanj; ■ which the actor accepts in payment because he orients his action 
to the expectation that a large but unknown number of individuals he is 
personally unacquainted with will be ready to accept it in exchange on 
some ' uture occasion.) 

2. Not ew. ' kind of action, even of overt action, is "social" in the 
sense of the present discussion. Overt action is non-social if it is oriented 
solely to the behavior of inanimate objects. Subjective attitudes constitute 
social action only so far as they are oriented to the behavior of others. For 
example, religious behavior is not social if it is simply a matter of con- 
templation or of solitary prayer. The economic activity of an individual 
is social only if it takes account of the behavior of someone else. Thus 
very generally it becomes social insofar as the actor assumes that others 
will respect his actual control over economic goods. Concretely it is social, 
for instance, if in relation to the actors own consumption the future 
wants of others are taken into account and this becomes one considera- 
tion affecting the actor's own saving. Or, in another connexion, produc- 
tion may be oriented to the future wants of other people. 



i ]* Definitions of Sociology and of Social Action 2. 3 

3. Not every type of contact of human beings has a social character; 
this is rather confined to cases where the actor's behavior is meaning- 
fully oriented to that of others. For example, a mere collision of two 
cyclists may be compared to a natural event. On the other hand, their 
attempt to avoid hitting each other, or whatever insults, blows, or friendly 
discussion might follow the collision, would constitute "social action. 

4. Social action is not identical either with the similar actions of 
many persons Or with every action influenced by other persons. Thus, 
if at the beginning of a shower a number of people on the street put up 
their umbrellas at the same time, this would not ordinarily be a case of 
action mutually oriented to that of each other, but rather of all reacting 
in the same way to the like need of protection from the rain- It is well 
known that the actions of the individual are strongly influenced by 
the mere fact that he is a member of a crowd confined within a limited 
space. Thus, the subject matter of studies of "crowd psychology," such 
as those of Le Bon, will be called "action conditioned by crowds." It is 
also possible for large numbers, though dispersed, to be influenced simul- 
taneously or successively by a source of influence operating similarly on 
all the individuals, as by means of the press. Here also the behavior of 
an individual is influenced by his membership in a "mass" and by the 
fact that he is aware of being a member. Some types of reaction are only 
made possible by the mere fact that the individual acts as part of a 
crowd. Others become more difficult under these conditions. Hence it is 
possible that a particular event or mode of human behavior can give rise 
to the most diverse kinds of feeling — gaiety, anger, enthusiasm, despair, 
and passions of all sorts — in a crowd situation which would not occur at 
all or not nearly so readily if the individual were alone. But for this to 
happen there need not, at least in many cases, be any meaningful rela- 
tion between the behavior of the individual and the fact that he is a 
member of a crowd. It is not proposed in the present sense to call action 
"social" when it is merely a result of the effect on the individual of the 
existence of a crowd as such and the action is not oriented to that fact 
on the level of meaning. At the same time the borderline is naturally 
highly indefinite. In such cases as that of the influence of the demagogue, 
there may be a wide variation in the extent to which his mass clientele is 
affected by a meaningful reaction to the fact of its large numbers; and 
whatever this relation may be, it is open to varying interpretations. 

But furthermore, mere "imitation" of the action of others, such as that 
on which Tarde has rightly laid emphasis, will not be considered a case 
of specifically social action if it is purely reactive so that there is no 
meaningful orientation to the actor imitated. The borderline is, however, 
so indefinite that it is often hardly possible to discriminate. The mere 



2 4 BASIC SOCIOLOGICAL TERMS [ Ch. I 

fact that a person is found to employ some apparently useful procedure 
which he learned from someone else does not, however, constitute, in the 
present sense, social action. Action such as this is not oriented to the 
action of the other person, but the actor has, through observing the 
other, become acquainted with certain objective facts; and it is these to 
which his action is oriented. His action is then causally determined by 
the action of others, but not meaningfully. On the other hand, if the 
action of others is imitated because it is fashionable or traditional or 
exemplary, or lends social distinction, or on similar grounds, it is mean- 
ingfully oriented either to the behavior of the source of imitation or of 
third persons or of both. There are of course all manner of transitional 
cases between the two types of imitation. Both the phenomena discussed 
above, the behavior of crowds and imitation, stand on the indefinite 
borderline of social action. The same is true, as will often appear, of 
traditionalism and charisma. The reason for the indefiniteness of the 
line in these and other cases lies in the fact that both the orientation to 
the behavior of others and the meaning which can be imputed by the 
actor himself, are by no means always capable of clear determination and 
are often altogether unconscious and seldom fully self-conscious. Mere 
"influence" and meaningful orientation cannot therefore always be clearly 
differentiated on the empirical level. But conceptually it is essential to 
distinguish them, even though merely reactive imitation may well have 
a degree of sociological importance at least equal to that of the type 
which can be called social action in the strict sense. Sociology, it goes - 
without saying, is by no means confined to the study of social action; 
this is only, at least for the kind of sociology being developed here, its 
central subject matter, that which may be said to be decisive for its status 
as a science. But this does not imply any judgment on the comparative 
importance of this and other factors. 



2. Types of Social Action 

Social action, like all action, may be oriented in four ways. It may be: 

(i) instrwnentally rational (zweckrational), that is, determined by 
expectations as to the behavior of objects in the environment and of 
other human beings; these expectations are used as "conditions" or 
"means" for the attainment of the actor's own rationally pursued and 
calculated ends; 
(2) value-rational QwertrationaV), that is, determined by a conscious 



2 ] _ Types of Social Action 2 5 

belief in the value for its own sake of some ethical, aesthetic, religious, 
or other form of behavior, independently of its prospects of success; 

(3) affectual (especially emotional), that is, determined by the actor's 
specific affects and feeling states; 

(4) traditional, that is, determined by ingrained habituation. 

1. Strictly traditional behavior, like the reactive- type of imitation 
discussed above, lies very close to the borderline of what can justifiably 
be called meaningfully oriented action, and indeed often on the other 
side. For it is very often a matter of almost automatic reaction to habit- 
ual stimuli whicA guide behavior in a course which has been repeat- 
edly followed. The great bulk of all everyday action to which people 
have become habitually accustomed approaches this type. Hence, its 
place in a systematic classification is not merely that of a limiting case 
because, as will be shown later, attachment to habitual forms can be up- 
held with varying degrees of self -consciousness and in a variety of 
senses. In this case the type may shade over into value rationality 
( Wertratiotutlitat) . 

■. 1. Purely affectual behavior also stands on the borderline of what 
can be considered "meaningfully" oriented, and often it, too, goes over 
the line. It may, for instance, consist in an uncontrolled reaction to 
some exceptional stimulus. It is a case of sublimation when affectually 
determined action occurs in the form of conscious release of emotional 
tension. When this happens it is usually well on the road to rationali- 
zation in one or the other or both of the above senses. 

3. The orientation of value-rational action is distinguished from the 
affectual type by its clearly self-conscious formulation of the ultimate 
values governing the action and the consistently planned orientation of 
its detailed course to these values. At the same time the two types have a ' 
common element, namely that the meaning of the action does not lie in 
the achievement of a result ulterior to it, but in carrying out the speci- 
fic type of action for its own sake. Action is affectual if it satisfies a 
need for revenge, sensual gratification, devotion, contemplative bliss, or 
for working off emotional tensions (irrespective of the level of sublima- 
tion). 

Examples of pure value-rational orientation would be the actions of 
persons who, regardless of possible cost to themselves, act to put into 
practice their convictions of what seems to them to be required by duty, 
honor, the pursuit of beauty, a religious call, personal loyalty, or the 
importance of some "cause" no matter in what it consists. In our termi- 
nology, value-rational action always involves "commands" or "demands" 
which, in the actor's opinion, are binding on him. It is only in cases 
where human action is motivated by the fulfillment of such uncondi- 
tional demands that it will be called value-rational. This is the case in 
widely varying degrees, but for the most part only to a relatively slight 
extent Nevertheless, it will be shown that the occurrence of this mode 
of action is important enough to justify its formulation as a distinct type; 



2 6 ^ASIC SOCIOLOGICAL TERMS [ Ck, I 

though it may be remarked that there is no intention here of attempting 
to Formulate in any sense an exhaustive classification of type; of action. 

4. Action is instrumen tally rational Czweckrational^ when the end, 
the means, and the secondary results are all rationally taken into account 
and weighed. This involves rational consideration of alternative means 
to the end, of the relations of the end to the secondary consequences, 
and finally of the relative importance of different possible ends. Deter- 
mination of action either in affectual or in traditional terms is thus 
incompatible with this type. Choice between alternative and conflicting 
ends and results may well be determined in a value-rational manner. 
In that case, action is instrumentally rational only in respect to the 
choice of means. On the other hand, the actor may, instead of deciding 
between alternative and conflicting ends in terms of a rational orienta- 
tion to a system of values, simply take them as given subjective wants 
and arrange them in a scale of consciously assessed relative urgency. He 
may then orient his action to this scale in such a way that they are 
satisfied as far as possible in order of urgency, as formulated in the 
principle of "marginal utility." Value-rational action may thus have 
various different relations to the instrumentally rational action. From 
the latter point of view, however, value-rationality is always irrational. 
Indeed, the more the value to which action is oriented is elevated to the 
status of an absolute value, the more "irrational" in this sense the corre- 
sponding action is. For, the more unconditionally the actor devotes him- 
self to this value for its own sake, to pure sentiment or beauty, to abso- 
lute goodness or devotion to duty, the less is he influenced by consider- 
ations of the consequences of his action. The orientation of action 
wholly to the rational achievement of ends without relation to funda- 
mental values is, to be sure, essentially only a limiting case. 

5, It would he very unusual to find concrete cases of action, espe- 
cially of social action, which were oriented only in one or another of 
these ways. Furthermore, this classification of the modes of orientation 
of action is in no sense meant to exhaust the possibilities of the field, 
but only to formulate in conceptually pure form certain sociologically 
important types to which actual action is more or less closely approxi- 
mated or, in much the more common case, which constitute it.i ele- 
ments. The usefulness of the classification for the purposes of this 
investigation can only be judged in terms of its results. 



3 . The Concept of Social Relationship 

The term "social relationship" will be used to denote the behavior of 
a plurality of actors insofar as, in its meaningful content, the action of 
each takes account of that of the others and is oriented in these terms. 
The social relationship thus consists entirely and exclusivejy in the exist- 



3 ] The Concept of Social Relationship 2 7 

ence of a probability that there will be a meaningful course of social action 
— irrespective, for the time being, of the basis for this probability. 

1. Thus, as a defining criterion, it is essential that there should be 
at least a minimum of mutual orientation of the action of each to that 
of the others. Its content may be of the most varied nature: conflict, 
hostility, sexual attraction, friendship, loyalty, or economic exchange. It 
may involve the fulfillment, the evasion, or the violation of the terms 
of an agreement; economic, erotic, or some other form of "competition"; 
common membership in status, national or class groups (provided it 
leads to social action). Hence, the definition does not specify whether 
the relation of the actors is co-operative or the opposite. 

2. The "meaning" relevant in this context is always a case of the 
meaning imputed to the parties in a given concrete case, on the average, 
or in a theoretically formulated pure type — it is never a normal ively 
"correct" or a metaphysically "true" meaning. Even in cases of such 
forms of social organization as a state, church, association, or marriage, 
the social relationship consists exclusively in the fact that there has ex- 
isted, exists, or will exist a probability of action in some definite way 
appropriate to this meaning. It is vital to be continually clear about this 

' in order to avoid the "reineation" of these concepts. A "state," for ex- 
ample, ceases to exist in a sociologically relevant sense whenever there 
is no longer a probability that certain kinds of meaningfully oriented 
social action will take place. This probability may be very high or it may 
be negligibly low. But in any case it is only in the sense and degree in 
which it does exist that the corresponding social relationship exists. It is 
impossible to find any other clear meaning for the statement that, for 
instance, a given "state" exists or has ceased to exist. 

3. The subjective meaning need not necessarily be the same for all 
the parties who are mutually oriented in a given social relationship; 
there need not in this sense he "reciprocity." "Friendship," "love," 
'loyalty," "fidelity to contracts," "patriotism," on one side, may well be 
faced with an entirely different atdtude on the other. In such cases the 
parties associate different meanings with their actions, and the social 
relationship is insofar objectively "asymmetrical" from the points of view 
of the two parties. It may nevertheless be a case of mutual orientation 
insofar as, even though partly or wholly erroneously, one party pre- 
sumes a particular attitude toward him on the part of the other and 
orients his action to this expectation. This can, and usually will, have 
consequences for the course of action and the form of the relationship. 
A relationship is objectively symmetrical only as, according to the typi- 
cal expectations of the parties, the meaning for one party is the same as 
that for the other. Thus the actual attitude of a child to its father may be 
a least approximately that which the father, in the individual case, on 
the average or typically, has come to expect. A social relationship in 
which the attitudes are completely and fully corresponding is in reality 
a limiting case. But the absence of reciprocity will, for terminological 



2 8 BASIC SOCIOLOGICAL TERMS [ Ck. 1 

purposes, be held to exclude trie existence of a social relationship only 
if it actually results in the absence of a mutual orientation of the action 
of the parties. Here as elsewhere all sorts of transitional cases are the 
rule rather than the exception. 

4. A social relationship can be of a very fleeting character or of 
varying degrees of permanence. In the latter case there is a probability 
of the repeated recurrence of the behavior which corresponds to its sub- 
jective meaning and hence is expected. In order to avoid fallacious im- 
pressions, let it be repeated that it is only the existence of the probability 
that, corresponding to a given subjective meaning, a certain type of 
action will take place which constitutes the "existence" of the social 
relationship. Thus that a "friendship" or a "state" exists or has existed 
means this and only this: that we, the observers, judge that there is or has , 
been a probability that on the basis of certain kinds of known subjective 
attitude of certain individuals there will result in the average sense 3 
certain specific type of action. For the purposes of legal reasoning it is 
essential to be able to decide whether a rule of law does or does not 
carry legal authority, hence whether a legal relationship does or does 
not "exist." This type of question is not, however, relevant to sociologi- 
cal problems. 

5. The subjective meaning of a social relationship may change, thus 
a political relationship once based on solidarity may develop into a 
conflict of interests. In that case it is only a matter of terminological 
convenience and of the degree of continuity of the change whether we 
say that a new relationship has come into existence or that the old one 
continues but has acquired a new meaning. It is also possible for the 
meaning to be partly constant, pardy changing. 

6. The meaningful content which remains relatively constant in a 
social relationship is capable of formulation in terms of maxims which ( 
the parties concerned expect to be adhered to by their partners on the 
average and approximately. The more rational in relation to values or 
to given ends the action is, the more is this likely to be the case. There 
is far less possibility of a rational formulation of subjective meaning in 
the case of a relation of erotic attraction or of personal loyalty or any 
other affectual type than, for example, in the case of a business contract. 

7. The meaning of a social relationship may be agreed upon by 
mutual consent. This implies that the parties make promises covering 
their future behavior, whether toward each other or toward third per- 
sons. In such cases each party then normally counts, so far as he acts 
rationally, in some degree on the fact that the other will orient his ac- 
tion to the meaning of the agreement, as he (the first actor) under- 
stands it. In part he orients his action rationally (.zweckTational) to these 
expectations as given facts with, to be sure, varying degrees of subjec- 
tively "loyal" intention of doing his part. But in part also he is motivated 
value-rationally 'by a sense of duty, which makes him adhere to the 
agreement as he understands it. This much may be anticipated. (For 
a further elaboration, see sees. 9 and 13 below.) 



4 ] Types of Orientation: Usage, Custom, Self-interest 2 y 

4. Types of Action Orientation: Usage, Custom, 
Self-Interest 

Within the realm of social action certain empirical uniformities can 
be observed, that is, courses of action that are repeated by the actor or 
(simultaneously) occur among numerous actors since the subjective 
meaning is meant to be the same. Sociological investigation is concerned 
with these typical modes of action. Thereby it differs from history, the 
subject of which is rather the causal explanation of important individual 
events; important, that is, in having an influence on human destiny. 

If an orientation toward social action occurs regularly, it will be called 
"usage" (Branch*) insofar as the probability of its existence within a 
group is based on nothing but actual practice. A usage will be called a 
"custom" (Sitte) if the practice is based upon long standing. On the 
other hand, a uniformity of orientation may be said to be "determined 
by self-interest," if and insofar as the actors' conduct is instrumentally 
(gweckrarional*) oriented toward identical expectations." 

1. Usage also includes "fashion" (Mode). As distinguished from 
custom and in direct contrast to it, usage will be called fashion so far 
as the mere fact of the novelty of the corresponding behavior is the 
basis of the orientation of action. Its locus is in the neighborhood of 
"convention," 17 since both of them usually spring from a desire for social 
prestige. Fashion, however, will not be further discussed here. 

2. As distinguished from both "convention" and 'Taw," "custom" 
refers to rules devoid of any external sanction. The actor conforms with 
them of his own free will, whether his motivation lies in the fact that 
be merely fails to think about it, that it is more comfortable to conform, 
or whatever eke the reason may be. For the same reasons he can consider 
it likely that other members of the group will adhere to a custom. 

Thus custom is not "valid" in anything like the legal sense; conform- 
ity with it is not "demanded" by anybody. Naturally, the transition from 
this to validly enforced convention and to law is gradual. Everywhere 
what has been traditionally handed down has been an important source 
of what has come to be enforced. Today it is customary every morning to 
eat a breakfast which, within limits, conforms to a certain pattern. But 
there is no obligation to do so, except possibly for hotel guests, and it 
• has not always been customary. On the other hand, the current mode 
of dress, even though it has partly originated in custom, is today very 
largely no longer customary alone, but conventional. 

(On the concepts of usage and custom, the relevant parts of vol. II 
of R. von Jhering's Zweck im Recht are still worth reading. Compare 
also, P. Oertmann, Hechtsordnung und Verhehrssitte (1914); and 
more recently E, Weigelin, Sitte, Hecht und Moral (1919), which 
agrees with the author's position as opposed to that of Stammler.) 



3 O BASIC SOCIOLOGICAL TERMS [ Ck. 1 

3. Many of the especially notable uniformities in the course of 
social action are not determined by orientation to any sort of norm 
which is held to be valid, nor do they rest on custom, but entirely on 
the fact that the corresponding type of social action is in the nature of 
the case best adapted to the normal interests of the actors as they them- 
selves are aware of them- This is above all true of economic action, for 
example, the uniformities of price determination in a "free" market, 
but is by no means confined to such cases. The dealers in a market 
thus treat their own actions as means for obtaining the satisfaction of 
the ends denned by what they realize to be their own typical economic 
interests, and similarly treat as conditions the corresponding typical 
expectations as to the prospective behavior of others. The more strictly 
rational (xweckrationat) their action is, the more will they tend to react 
similarly to the same situation. In this way there arise similarities, uni- 
formities, and continuities in their attitudes and actions which are often 
far more stable than they would be if action were oriented to a system 
of norms and duties which were considered binding on the members of 
a group. This phenomenon— the fact that orientation to the situation 
in terms of the pure self-interest of the individual and of the others to 
whom he is related can bring about results comparable to those which 
imposednorms prescribe, very often in vain— has aroused a lively inter- 
est, especially in economic affairs. Observation of this has, in fact, been 
one of the important sources of economics as a science. But it is true in 
all other spheres of action as well, This type, with its c'arity of self- 
consciousness and freedom from subjective scruples, is the polar anti- 
thesis of every sort of unthinking acquiescence in customary ways as 
well as of devotion to norms consciously accepted as absolute values. 
One of the most important aspects of the process of "rationaliza- 
tion" of action is the substitution for the unthinking acceptance of 
ancient custom, of deliberate adaptation to situations in terms of self- 
interest. To be sure, this process by no means exhausts the concept of 
rationalization of action. For in addition this can proceed in a variety 
of other directions; positively in that of a deliberate formulation of 
ultimate values (WeTtrationalisieTung); or negatively, at the expense 
not only of custom, but of emotional values; and, finally, in favor of a 
morally sceptical type of rationality, at the expense of anv belief in 
absolute values. The many possible meanings of the concept of 
rationalization will often enter into the discussion. 1S (Further remarks 
on the analytial problem will be found at the end.) 18 

4. The stability of merely customary action rests essentially on 
the fact that the person who does not adapt himself to it is subjected 
to both petty and major inconveniences and annoyances as long as the 
majority of the people he comes in contact with continue to uphold 
the custom and conform with it. 

Similarly, the stability of action in terms of self-interest rests on 
the fact that the person who does not orient his action to the interests 
of others, does not "take account" of them, arouses their antagonism 



4 ] Types of Orientation: Usage, Custom, Self-interest 3 1 

or may end up in a situation different from that which he had fore- 
seen or wished to bring about. He thus runs the risk of damaging 
his own interests. 



5. Legitimate Order 

Action, especially social action which involves a social relationship, 
may be guided by the belief in the existence of a legitimate order. The 
probability that action will actually be so governed will be called the 
"validity" (Geltung) of the order in question. 

1. Thus, the validity of an order means more than the mere 
existence of a uniformity of social action determined by custom or 
self-interest. If furniture movers regularly advertise at the time many 
leases expire, this uniformity is determined by self-interest. If a 
salesman visits certain customers on particular days of the month or 
the week, it is either a case of customary behavior or a product of self- 

1 interested orientation. However, when a civil servant appears in his 
office daily at a fixed time, he does not act only on the basis of 
custom or self-interest which he could disregard if he wanted to; as 
a rule, his action is also determined by the validity of an order (viz., 
the civil service rules), which he fulfills partly because disobedience 
would be disadvantageous to him but also because its violation would 
be abhorrent to his sense of duty (of course, in varying degrees). 

2. Only then will the content of a social relationship be called 
an order if the conduct is, approximately or on the average, oriented 
toward determinable "maxims," Only then will an order be called 

' "valid" if the orientation toward these maxims occurs, among other 
reasons, also because it is in some appreciable way regarded by the 
actor as in some way obligatory or exemplary for him. Naturally, in 
concrete cases, the orientation of action to an order involves a wide 
variety of motives. But the circumstance that, along with the other 
sources of conformity, the order is also held by at least part of the 
actors to define a model or to be binding, naturally increases the 
probability that action will in fact conform to it, often to a very 
considerable degree. An order which is adhered to from motives of 
pure expediency is generally much less stable than one upheld on a 
purely customary basis through the fact that the corresponding behavior 
has become habitual. The latter is much the most common type of 
subjective attitude. But even this type of order is in turn much less 
stable than an order which enjoys the prestige of being considered 
binding, or, as it may be expressed, of 'legitimacy." The transitions 
between orientation to an order from motives of tradition or of ex- 
pediency to the case where a belief in its legitimacy is involved are 
empirically gradual. 



3 2 BASIC SOCIOLOGICAL TERMS [ Ck. 1 

3. It is possible for action to be oriented to an order in other 
ways tHan through conformity with its prescriptions, as they are 
generally understood by the actors. Even in the case of evasion or 
disobedience, the probability of their being recognized as valid norms 
may have an effect on action. This may, in the first place, be true 
from the point of view of sheer expediency. A thief orients bis action 
to the validity of the criminal law in that he acts surreptitiously. The 
fact that the order is recognized as valid in his society is made 
evident by the fact that he cannot violate it openly without punish- 
ment. But apart from this limiting case, it is very common for 
violation of an order to be confined to more or less numerous partial 
deviations from it, or for the attempt to be made, with varying degrees 
of good faith, to justify the deviation as legitimate. Furthermore, there 
may exist at the same time different interpretations of the meaning 
of the order. In such cases, for sociological purposes, each can be said 
to be valid insofar as it actually determines the course of action. The 
fact that, in the same social group, a plurality of contradictory 
systems of order may all be recognized as valid, is not a source of 
difficulty for the sociological approach. Indeed, it is even possible for 
the same individual to orient his action to contradictory systems of 
order. This can take place not only at different times, as is an every- 
day occurrence, but even in the case of the same concrete act. A 
person who fights a duel follows the code of honor; but at the same 
time, insofar as he either keeps it secret or conversely gives himself 
up to the police, he takes account of the criminal law. To be sure, 
when evasion or contravention of the generally understood meaning 
of an order has become the rule, the order can be said to be "valid" 
only in a limited degree and, ir the extreme case, not at all. Thus , 
for sociological purposes there does not exist, as there does for the 
law, a rigid alternative between the validity and lack of validity of a 
given order. On the contrary, there is a gradual transition between 
the two extremes; and also it is possible, as it has been pointed out, 
for contradictory systems of order to exist at the same time. In that 
case each is "valid" precisely to the extent that there is a probability 
that action will in fact be oriented to it. 

[Excursus:] ( Those familiar with the literature of this subject will 
recall the part played by the concept of "order" in the brilliant book 
of Rudolf Stammler, which was cited in the prefatory note, a book 
which, though like all his works it is very able, is nevertheless funda- 
mentally misleading and confuses the issues in 3 catastrophic fashion. 
(The reader may compare the author's critical discussion of it, which 
was also cited in the same place, a discussion which, because of the 
author's annoyance at Stammler's confusion, was unfortunately written 
in somewhat too acrimonious a tone.) Stammler fails to distinguish 
the normative meaning of "validity" from the empirical. He further 
fails to recognize that social action is oriented to other things beside 
systems of order. Above all, however, in a way which is wholly 



5 ] Legitimate Order 3 3 

indefensible from a logical point of view, he treats order as a "form" 
of social action and then attempts to bring it into a type of relation 
to "content," which is analogous to that of form and content in the 
theory of knowledge. Other errors in his argument will be left aside. 
But economic action, for instance, is oriented to knowledge of the 
relative scarcity of certain available means to want satisfaction, in 
relation to the actor's state of needs and to the present and probable 
action of others, insofar as the latter affects the same resources. But 
at the same time, of course, the actor in his choice of economic pro- 
cedures naturally orients himself in addition to the conventional and 
legal rules which he recognizes as valid, that is, of which he knows that 
a violation on his part would call forth a given reaction of other 
persons. Stammler succeeds in introducing a state of hopeless con- 
fusion into this very simple empirical situation, particularly in that 
he maintains that a causal relationship between an order and actual 
empirical action involves a contradiction in terms. It is true, of course, 
that there is no causal relationship between the normative validity of 
an order in the legal sense and any empirical process. In that context 
there is only the question of whether the order as correctly interpreted 
in the legal sense "applies" to the empirical situation. The question 
*is whether in a normative sense it should be treated as valid and, if so, 
what the content of its normative prescriptions for this situation 
should be. But for sociological purposes, as distinguished from legal, 
it is only the probability of orientation to the subjective belief in the 
validity of an order which constitutes the valid order itself. It is 
undeniable that, in the ordinary sense of the word "causal," there 
is a causal relationship between this probability and the relevant 
course of economic action. 



6 . Types of Legitimate Order: Convention and Law 

The legitimacy of an order may be guaranteed in two principal 
ways : i0 

I. The guarantee may he purely subjective, being either 

1. affectuai; resulting from emotional surrender; or 

2. value-rational: determined by the belief in the absolute validity 
of the order as the expression of. ultimate values of an ethical, 
esthetic or of any other type; or 

3. religious: determined by the belief that salvation depends upon 
obedience to the order. 

II. The legitimacy of an order may, however, be guaranteed also Cor 
merely) by the expectation of specific external effects, that is, by interest 
situations. 



3 4 BASIC SOCIOLOGICAL TERMS [Ch. I 

An older will be called 

(a) convention so far as its validity is externally guaranteed by the 
probability that deviation from it within a given social group will 
resillt in a relatively general and practically significant reaction of 
disapproval; 

(b) lav? if it is externally guaranteed by the probability that physical 
or psychological coercion will be applied by a staff of people in order 
to bring about compliance or avenge violation. 

(On the concept of convention see Weigelin, op. cit., and F. 
Tonnies, Die SUte [1909], besides Jhering, op, cit.') 

1. Trie term convention will be employed to designate that part of 
the custom followed within a given social group which is recognized 
as "binding" and protected against violation by sanctions of dis- 
approval. As distinguished from "law" in the sense of the. present 
discussion, it is not enforced by a staff. Stammfer distinguishes con- 
vention from law in terms of the entirely voluntary character of 
conformity. This is not, however, in accord with everyday usage and 

. does not even fit the examples he gives. Conformity with convention 
in such matters as the usual forms of greeting, the mode of dress 
recognized as appropriate or respectable, and various of the rules 
governing the restrictions on social intercourse, both in form and in 
content, is very definitely expected of the individual and regarded 
as binding on him. It is not, as in the case of certain ways of 
preparing food, a mere usage, which he is free to conform to or not 
as he sees fit. A violation of conventional rules — such as standards 
of "respectability" QStandesshte) — often leads to the extremely severe 
and effective sanction of an informal boycott on the part of members of 
one's status group. This may actually be a more severe punishment than ' 
any legal penalty. The only thing lacking is a staff with the specialized 
function of maintaining enforcement of the order, such as judges, prose- 
cuting attorneys, administrative officials, or sheriffs. The transition, how- 
ever, is gradual. The case of conventional guarantee of an order which 
most closely approaches the legal is the application of a formally threat- 
ened and organized boycott. For terminological purposes, this is best 
considered a form of legal coercion- Conventional rules may, in addition 
to mere disapproval, also be upheld by other means; thus domestic au- 
thority may be employed to expel a visitor who defies convention. This 
fact is not, however, important in the present context. The decisive 
point is that the individual, by virtue of the existence of conventional 
disapproval, applies these sanctions, however drastic, on his own author- 
ity, not as a member of a staff endowed with a specific authority for this 
purpose. 

2. For the purposes of this discussion the concept "law" will be 
made to turn on the presence of a staff engaged in enforcement, how- 
ever useful it might be to define it differently for other purposes. The 



6 ] Types of Legitimate Order. Convention and Law 3 5 

character of this agency naturally need not be at all similar to what is 
at present familiar. In particular it is not necessary that there should be 
any specifically "judicial" authority- The dan, as an agency of blood 
revenge and of the prosecution of feuds, is such an enforcing agency if 
there exist any sort of rules which governs its behavior in such situa- 
tions. But this is on the extreme borderline of what can be called legal 
enforcement. As is well known, it has often been denied that interna- 
tional law could be called law, precisely because there is no legal au- 
thority above the state capable of enforcing it. In terms of the present 
terminology this would be correct, for we could not call "law" a system 
the sanctions of which consisted wholly in expectations of disapproval 
and of the reprisals of injured parties, which is thus guaranteed entirely 
by convention and self-interest without the help of a specialized en- 
forcement agency. But for purposes of legal terminology exactly the 
opposite might well be acceptable. 

In any case the means of coercion are irrelevant. Even a "brotherly 
admonition," such as has been used in various religious sects as the first 
degree of mild coercion of the sinner, is "law" provided it is regulated 
by some order and applied by a staff. The same is to be said about the 
'[Roman] censorial reprimand as a means to guarantee the observance of 
ethical duties and, even more so, about psychological coercion through 
ecclesiastic discipline. Hence "law" may be guaranteed by hierocratic as 
well as political authority, by the statutes of a voluntary association or 
domestic authority or through a sodality or some other association. The 
rules of [German students' fraternities Jen own as] the Kcmmfittt [and 
regulating such matters as convivial drinking or singing] are also law in 
our sense, just as the case of those [legally regulated but unenforceable] 
duties which are mentioned in Section 888, paragraph 2 of the German 
Code of Civil Procedure [for instance, the duty arising from an engage- 
ment to many]. sl The leges imperfectae and the category of "natural 
obligations" are forms of legal terminology which express indirectly 
limits or conditions of the application of compulsion. In the same sense 
a trade practice which is compulsorily enforced is also law. See sees. 157 
and 242 of the German Civil Code. On the concept of "fair practice" 
Cgute Sȣte), that is, desirable custom which is worthy of legal sanction, 
see Max Rumelin's essay in the Schtvdhische Heimatgabe fur Theodor 
Hating (1918). 

3. It is not necessary for a valid order to be of a general and abstract 
character. The distinction between a legal norm and the judicial deci- 
sion in a concrete case, for instance, has not always and everywhere 
been as clearly made as we have today come to expect. An "order" may 
thus occur simply as the order governing a single concrete situation. The 
details of this subject belong in the Sociology of Law. But for present 
purposes, unless otherwise specified, the modem distinction between a 
norm and a specific decision will be taken for granted. 

4. A system of order which is guaranteed by external sanctions may 
at the same time be guaranteed by disinterested subjective attitudes* 



3 6 BASIC SOCIOLOGICAL TERMS [ Ch. I 

The relations of law, convention, and "ethics" do not constitute a problem 
for sociology. From a sociological point of view an "ethical" standard is 
one to which men attribute a certain type of value and which, by virtue 
of this belief, they treat as a valid norm governing their action. In this 
sense it can be spoken of as denning what is ethically good in the same 
w iy that action which is called beautiful is measured by esthetic stand- 
ards. It is possible for ethically normative beliefs of this kind to have a 
profound influence on action in the absence of any sort of external 
guarantee. This is often the case when the interests of others would be 
little affected by their violation. 

Such ethical beliefs are also often guaranteed by religious motives, 
but they may at the same time, in the present' terminology, be upheld 
to an important extent by disapproval of violations and the consequent 
boycott, or even legally with the corresponding sanctions of criminal or 
private law or of police measures. Every system of ethics which has in a 
sociological sense become validly established is likely to be upheld to a 
large extent by the probability that disapproval will result from its viola- 
tion, that is, by convention. On the other hand, it is by no means neces- 
sary that all conventionally or legally guaranteed forms of order should 
claim the authority of ethical norms. Legal rules, mych more often than 
conventional ones, may have been established entirely on grounds of 
expediency. Whether a belief in the validity of an order as such, which 
is current in a social group, is to be regarded as belonging to the realm 
of "ethics" or is a mere convention or a mere legal norm, cannot, for 
. sociological purposes, be decided in general terms. It must be treated as 
relative to the conception of what values are treated as "ethical" in the 
social group in question. 



7. Bases of Legitimacy: Tradition, Faith, Enactment 
The actors may ascribe legitimacy to a social order by virtue of: 

(a) tradition: valid is that which has always been; 

(b) affectual, especially emotional, faith: valid is that which is newly 
revealed or exemplary; 

(c) value-rational faith: valid is that which has been deduced as an 
absolute; 

(d) positive enactment which is believed to be legal. 
Such legality may be treated as legitimate because: 

(») it derives from a voluntary agreement of the interested parties; 
09) it is imposed by an authority which is held to be legitimate and 
therefore meets with compliance. 

AH further details, except for a few other concepts to be defined 
below, belong in the Sociology of Law and the Sociology of Domination. 
For the present, only a few remarks are necessary. 



7 ] _ Bases of Legitimacy: Tradition, Faith, Enactment 3 7 

1. The validity of a social order by virtue of the sacredness of tradi- 
tion is the oldest and most universal type of legitimacy. The fear of 
magical evils reinforces the general psychological inhibitions against any 
sort of change in customary modes of action. At the same time the mani- 

' fold vested interests which tend to favor conformity with an established 
order help to perpetuate it. (More in ch. III.) 

2. Conscious departures from tradition in the establishment of a 
new order were originally almost entirely due to prophetic oracles or at 
least to pronouncements which were sanctioned as prophetic and thus 
were considered sacred. This was true as late as the statutes of the 
Greek aisymnetai. Conformity thus depended on belief in the legiti- 
macy of the prophet. In times of strict traditionalism a new order — one 
actually regarded as new— was not possible without revelation unless it 
was claimed that it had always been valid though not yet rightly known, 
or that it had been obscured for a time and was now being restored to its 
rightful place, 

3. The purest type of legitimacy based on value-rationality is natural 
law. The influence of its logically deduced propositions upon actual con- 
duct has lagged far behind its ideal claims; that they have had some 
influence cannot be denied, however. Its propositions must be distin- 
guished from those of revealed, enacted, and traditional law. 

4. Today the most common form of legitimacy is the belief in legal- 
ity, the compliance with enactments which are formally correct and 
which have been made in the accustomed manner. In this respect, the 
distinction between an order derived From voluntary agreement and one 
which has been imposed is only relative. For so far as the agreement 
underlying the order is not unanimous, as in the past has often been 
held necessary for complete legitimacy, the order is actually imposed 
upon the minority; in this frequent case the order in a given group de- 
pends upon the acquiescence of those who hold different opinions. On 
the other hand, it is very common for minorities, by force or by the use 
of more ruthless and far-sighted methods, to impose an order which in 
the course of time comes to be regarded as legitimate by those who orig- 
inally resisted it. Insofar as the ballot is used as a legal means of altering 
an order, it is very common for the will of a minority to attain a formal 
majority and for the majority to submit. In this case majority rule is a 
mere illusion. The belief in the legality of an order as established by 
voluntary agreement is relatively ancient and is occasionally found 
among so-called primitive people; but in these cases it is almost always 
supplemented by the authority of oracles. 

5. So far as it is not derived merely from fear or from motives of 
expediency, a willingness to submit to an order imposed by one man or 
a small group, always implies a belief in the legitimate authority (Herr- 
schaftsgewali) of the source imposing it. This subject will be dealt with 
separately below : see sections 13 and 16 and ch. III. 

6. Submission to an order is almost always determined by a variety 
of interests and by a mixture of adherence to tradition and belief in 



3 8 BASIC SOCIOLOGICAL TERMS [ Ch. I 

legality, unless it is a case of entirely new regulations. In a very large 
proportion of cases, the actors subject to the order are of course not even 
aware how far it is a matter of custom, of convention, or of law, In such 
cases the sociologist must attempt to formulate the typical basis of valid- 
ity. 



8. Conflict, Competition, Selection 

A social relationship will be referred to as "conflict" (Kampf) insofar 
as action is oriented intentionally to carrying out the actor's own will 
against the resistance of the other party or parties. The term "peaceful" 
conflict will be applied to cases in which actual physical violence is not 
employed. A peaceful conflict is "competition" insofar as it consists in a 
formally peaceful attempt to attain control over opportunities and ad- 
vantages which are also desired by others. A competitive process is "regu- 
lated" competition to the extent that its ends and means are oriented to 
an order. The struggle, often latent, which takes place between human 
individuals or social types, for advantages and for survival, but without 
a meaningful mutual orientation in terms of -conflict, will be called "se- 
lection." Insofar as it is a matter of the relative opportunities of individ- 
uals during their own lifetime, it is "social selection"; insofar as it 
concerns differential chances for the survival of hereditary characteristics, 
"biological selection,". 

i. There are all manner of continuous transitions ranging from the i 
bloody type of conflict which, setting aside all rules, aims at the destruc- 
tion of the adversary, to the case of the battles of medieval chivalry, 
bound as they were to the strictest conventions, and to the strict regula- 
tions imposed on sport by the rules, of the game. A classic example of 
conventional regulation in war is the herald's call before the battle of 
Fontenoy: "Messieurs les Anglais, tirez Ies premiers/' 22 There are transi- 
tions such as that from unregulated competition of, let us say, suitors for 
. the favor of a woman to the competition for economic advantages in 
exchange relationships, bound as that is by the order governing the 
market, or to strictly regulated competitions for artistic awards or, finally, 
to the struggle for victory in election campaigns. The conceptual separa- 
tion of peaceful [from violent] conflict is justified by the quality of the 
means normal to it and the peculiar sociological consequences of its oc- 
currence (see ch. II and later). 

2. All typical struggles and modes of competition which take place 
on a large scale will lead, in the long run, despite the decisive im- 
portance in many individual cases of accidental factors and luck, to a 
selection of those who have in the higher degree, on the average, pos- 
sessed the personal qualities important to success. What qualities are 



8 ] Conflict, Competition, Selection 3 9 

important depends on the conditions in which the conflict or competi- 
tion takes place. It may be a matter of physical strength or of unscrupu- 
lous cunning, of the level of mental ability or mere lung power and 
skill in the technique of demagoguery, of loyalty to superiors or of 
ability to flatter the masses, of creative originality, or of adaptability, of 
qualities which are unusual, or of those which are possessed by the 
mediocre majority. Among the decisive conditions, it must not be for- 
gotten, belong the systems of order to which the behavior of the parties 
is oriented, whether traditionally, as a matter of rationally disinterested 
loyalty (wertrational'), or of expediency. Each type of order influences 
opportunities in the process of social selection differendy. 

Not every process of social selection is, in the present sense, a case of 
conflict. Social selection, on the contrary, means only in the first in- 
stance that certain types of behavior, and possibly of the corresponding 
personal qualities, lead more easily to success in the role of "lover," 
"husband," "member of parliament," "official," "contractor," "managing 
director," "successful business man," and so on. But the concept does not 
specify whether this differential advantage in selection for social success 
is brought to bear through conflict or not, neither does it specify 
whether the biological chances of survival of the type are affected one 
way or the other. 

It is only where there is a genuine competitive process that the term 
conflict will be used [i.e., where regulation is, in principle, possible]." 
It is only in the sense of "selection" that it seems, according to our 
experience, that conflict is empirically inevitable, and it is furthermore 
only in *he sense of biological selection that it is inevitable in principle- 
Selection is inevitable because apparently no way can be worked out of 
eliminating it completely. Even the most strictly pacific order can elimi- 
nate means of conflict and the objects of and impulses to conflict only 
partially. Other modes of conflict would come to the fore, possibly in 
processes of open competition. But even on the Utopian assumption that 
all competition were completely eliminated, conditions would still lead 
to a latent process of selection, biological or social, which would favor 
the types best adapted to the conditions, whether their relevant qualities- 
were mainly determined by heredity or by environment. On an empiri- 
cal level the elimination of conflict cannot go beyond a point which 
leaves room for some social selection, and in principle a process of bio- 
logical selection necessarily remains. 

3. From the struggle of individuals for personal advantages and sur- 
vival, it is naturally necessary to distinguish the "conflict" and the "selec- 
tion" of social relationships. It is only in a metaphorical sense that these 
concepts can be applied to the latter. For relationships exist only as 
individual actions with particular subjective meanings. Thus a process of 
selection or a conflict between them means only that one type of action - 
has in the course of time been displaced by another, whether it is action 
by the same persons or by others. This may occur in various ways. 
Human action may in the first place be consciously aimed to alter cer- 



4 O BASIC SOCIOLOGICAL TERMS [ Ch. I 

tain social relationships — that is, to alter the corresponding action — or it 
may be directed to the prevention of their development or continuance. 
Thus a "state" may be destroyed by war or revolution, or a conspiracy 
may be broken up by savage, suppression; prostitution may be suppressed 
by police action; "usurious" business practices, by denial of legal protec- 
tion or by penalties. Furthermore, social relationships may be influenced 
by the creation of differential advantages which favor one type over an- 
other. It is possible either for individuals or for organized groups to 
pursue such ends. Secondly, it may, in various, ways, be an unantici- 
pated consequence of a course of social action and its relevant conditions 
that certain types of social relationships (meaning, of course, the cor- 
responding actions) will be adversely affected in their opportunities to 
maintain themselves or to arise. All changes of natural and social condi- 
tions^have some sort of effect on the differential probabilities of survival 
of social relationships. Anyone is at liberty to speak in such cases of a 
process of "selection" of social relationships. For instance, he may say 
that among several states the "strongest," in the sense of the best 
"ad. - d," is victorious. It must, however, be kept in mind that this 
so-caiitd "selection" has nothing to do with the selection of types of 
human individuals in either the social or the biological sense. In every 
case it is necessary to inquire into the reasons which have led to a change 
in the chances of survival of one or another form of social action or 
social relationship, which have broken up a social relationship or per- 
mitted it to continue at the expense of other competing forms. The ex- 
planation of these processes involves so many factors that it does not 
seem expedient to employ a single term for them. When this is done, 
there is always a danger of introducing uncritical value- judgments into 
empirical investigation. There is, above all, a danger of being primarily 
concerned with justifying the success of an individual case. Since indi- 
vidual cases are often dependent on highly exceptional circumstances, 
they may be in a certain sense "fortuitous." In recent years there has 
been more than enough of this kind of argument. The fact that a given 
specific social relationship has been eliminated for reasons peculiar to a 
particular situation, proves nothing whatever about its "fitness to survive" 
in general terms. 



9. Communal and Associative Relationships 

A social relationship will be called "communal" (V ergemeinschaf- 
tung) if and so far as the orientation of social action — whether in the 
individual case, on the average, or in the pure type- — is based on a 
subjective feeling of the parties, whether affectual or traditional, that 
they belong together. 

A social relationship will be called "associative" QJergeselhchaftung) 
if and insofar as the orientation of social action within it rests on a 



o ] Communal and Associative Relationships 4 1 

rationally motivated adjustment of interests or a similarly motivated 
agreement, whether the basis of rational judgment be absolute values or 
reasons of expediency. It is especially common, though by no means 
inevitable, for the associative type of relationship to rest on a rational 
agreement by mutual consent. In that case the corresponding action is, 
at the pole of rationality, oriented either to a value-rational belief in one's 
own obligation, or to a rational (zweckrationale) expectation that the 
other party will live up to it. 

This terminology is similar to the distinction made by Ferdinand 
Tonnies in his pioneering work, Gemeinschaft und Gesellsckaft; but for 
his purposes, Tonnies has given this distinction a rather more specific 
meaning than would be convenient for purposes of the present discus- 
sion. 2 * The purest cases of associative relationships are: (a) rational free 
market exchange, which constitutes a compromise of opposed but com- 
plementary interests; (b) the pure voluntary association based on self- 
interest (Zweckverein'), a case of agreement as to a long-run course of 
action oriented purely to the promotion of specific ulterior interests, 
economic or other, of its members; (c) the voluntary association of indi- 
viduals motivated by an adherence to a set of common absolute values 
(Gesinnungsvere'm^), for example, the rational sect, insofar as it does not 
cultivate emotional and affective interests, but seeks only to serve a 
"cause." This last case, to be sure, seldom occurs in anything approach- 
ing the pure type. 

2. Communal relationships may rest on various types of affectual, 
emotional, or traditional bases. Examples are a religious brotherhood, an 
erotic relationship, a relation of persona] loyalty, a national community, 
the esprit de corps of a military unit. The type case is most conveniently 
illustrated by the family. But the great majority of social relationships 
has this characteristic to some degree, while being at the same time to 
some degree determined by associative factors. No matter how calculat- 
ing and hard-headed the ruling considerations in such a social relation- 
ship^ — -as that of a merchant to his customers — may be, it is quite pos- 
sible for it to involve emotional values which transcend its utilitarian 
significance. Every social relationship which goes beyond the pursuit of 
immediate common ends, which hence lasts for long periods, involves . 
relatively permanent social relationships between the same persons, and 
these cannot be exclusively confined to the technically necessary activi- 
ties. Hence in such cases as association in the same military unit, in the 
same school class, in the same workshop or office, there is always some 
tendency in this direction, although the degree, to he sure, varies enor- 
mously. Conversely, a social relationship which is normally considered 
primarily communal may involve action on the part of some or even all 
of the participants which is to an important degree oriented to consid- 
erations of expediency. There is, for instance, a wide variation in the 
extent to which the members of a family group feel a genuine com- 
munity of interests or, on the other hand, exploit the relationship for 



4 2 BASIC SOCIOLOGICAL TERMS [ Ch. J 

their own ends. The concept of communal relationship has been in- 
tentionally denned in very general terms and hence includes a very 
heterogeneous group of phenomena. 

3. The communal type of relationship is, according to the usual 
interpretation of its subjective meaning, the most radical antithesis of 
conflict. This should not, however, be allowed to obscure the fact that 
coercion of all sorts is a very common thing in even the most intimate of 
such communal relationships if one party is weaker in character than 
the other. Furthermore, a process of the selection of types leading to 
differences in opportunity and survival, goes on within these relation- 
ships just the same as anywhere else. Associative relationships, on the 
other hand, very often consist only in compromises between rival in- 
terests, where only a part of the occasion or means of conflict has been 
eliminated, or even an attempt has been made to do so. Hence, outside 
the area of compromise, the conflict of interests, with its attendant com- 
petition for supremacy, remains unchanged. Conflict and communal 
relationships are relative concepts. Conflict varies enormously according 
to the means, employed, especially whether they are violent or peaceful, 
and to the ruthlessness with which they are used. It has already been 
pointed out that any type of order governing social action in some way 
leaves room for a process of selection among various rival human types. 

4. It is by no means true that the existence of common qualities, a 
common situation, or common modes of behavior imply the existence of 
a communal social relationship. Thus, for instance, the possession of a 
common biological inheritance by virtue of which persons are classified 
as belonging to the same "race," naturally implies no sojS of communal 
social relationship between them. By restrictions on stjdal intercourse 
and on marriage persons may find themselves in a similar situation, a 
situation of isolation from the environment which imposes these distinc- 
tions. But even if they all react to this situation in the same way, this 
does not constitute a communal relationship. The latter does not even 
exist if they have a common "feeling" about this situation and its conse- 

Suences. It is only when this feeling leads to a mutual orientation of 
leir behavior to each other that a social relationship arises between 
them rather than of each to the environment Furthermore, it is only so 
far as this relationship involves feelings of belonging together that it is 
a "communal" relationship. In the case of the jews, for instance, except 
for Zionist circles and the action of certain associations promoting speci- 
fically Jewish interests, there thus exist communal relationships only to 
a relatively small extent; indeed, jews often repudiate the existence of a 
Jewish "community." 

A common language, which arises from a similarity of tradition 
through the family and the surrounding social enviror merit, facilitates 
mutual understanding, and thus the formation of all types of social rela- 
tionships, in the highest degree. But taken by itself it is not sufficient 
to constitute a communal relationship, rather, it facilitates intercourse 
within thegroups concerned, hence the development of associate rela- 
tionships. This takes place between individuals, not because they speak 



9 ] Communal and Associative Relationships 4 3 

the same language, but because they have other types of interests. 
Orientation to the rules of a common language is thus primarily impor- 
tant as a means of communication, not as the content of a social rela- 
tionship. It is only with the emergence of a consciousness of difference 
from third persons who speak a different language that the fact that 
two persons speak the same language, and in that respect share a com- 
mon situation, can lead them to a feeling of community and to modes of 
social organization consciously based on the sharing of the common 
language. 

Participation in a "market" is of still another kind. It encourages 
association between the exchanging parties and a social relationship, 
above all that of competition, between the individual participants who 
must mutually orient their action to each other. But no further modes 
of association develop except in cases where certain participants enter 
into agreements in order to better their competitive situations, or where 
they all agree on rules for the purpose of regulating transactions and of 
securing favorable general conditions for all. (It may further be re- 
marked that the market and the competitive economy resting on it form 
the most important type of the reciprocal determination of action in 
terms of pure self-interest, a type which is characteristic of modern eco- 
nomic life.) 



lo. Open and Closed Relationships 

A social relationship, regardless of whether it is communal or associ- 
ative in character, will be spoken of as "open" to outsiders if and inso- 
far as its system of order does not deny participation to anyone who 
wishes to join and is actually in a position to do so. A relationship will, 
on the other hand, bes called "closed" against outsiders, so tar as, accord- 
ing to its subjective meaning and its binding rules, participation of certain 
persons is excluded, limited, or subjected $0 conditions. Whether a rela- 
tionship is open or closed may be determined traditionally, afrectually, 
or rationally in terms of values or of expediency, It is especially likely to 
be closed, for rational reasons, in the following type of situation: a social 
relationship may provide the parties to it with opportunities for the 
satisfaction of spiritual or material interests, whether absolutely or instro- 
mentally, or whether it is achieved through co-operative action or by a 
compromise of interests. If the participants expect that the adnusskm of 
others will lead to an improvement of their situation, an improvement in 
degree, in kind, in the security or the value of the satisfaction, their inter- 
est will be in keeping the relationship open. If, on the other hand, their 
expectations are of improving their position by monopolistic tactics, their 
interest is in a closed relationship. 



4 4 BASIC SOCIOLOGICAL TERMS [ Ch. I 

There are various ways m which it is possible for a closed social rela- 
tionship to guarantee its monopolized advantages to the parties, (a) Such 
advantages may be left free to competitive struggle within the group; (b) 
they may be regulated or rationed in amount and kind, or (c) they may 
be appropriated by individuals or sub-groups on a permanent basis and 
become more or less inalienable. The last is a case of closure within, as 
well as against outsiders. Appropriated advantages will be called "rights." 
As determined by the relevant order, appropriation may be (i) for the 
benefit of the members of particular communal or associative groups (for 
instance, household groups), or (2) for the benefit of individuals. In 
the latter case, the individual may enjoy his rights on a purely personal 
basis or in such a way that in case of his death one or more other persons 
related to the holder of the right by birth (kinship), or by some other 
social relationship, may inherit the rights in question. Or the rights may 
pass to one or more individuals specifically designated by the holder. 
These are cases of hereditary appropriation. Finally, (3) it may be that 
the holder is more or less fully empowered to alienate his rights by volun- 
tary agreement, either to other specific persons or to anyone he chooses. 
This is alienable appropriation. A party to a closed social relationship 
will be called a "member"; in case his participation is regulated in such 
a way as to guarantee him appropriated advantages, a privileged mem- 
ber (Rechtsgenosse). Appropriated rights which are enjoyed by individ- 
uals through inheritance or by hereditary groups, whether communal or 
associative, will be called the "property" of the individual or of groups 
in question; and, insofar as they are alienable, "free" property. 

The apparently gratuitous tediousness involved in the elaborate def- 
inition of the above concepts is an example of the fact that we often 
neglect to think out clearly what seems to be obvious, because it is in- 
tuitively familiar. 

1. (a) Examples of communal relationships, which tend to be closed 
on a traditional basis, are those in which membership is determined by 
family relationship. 

(b) Personal emotional relationships are usually affectually closed. 
Examples are erotic relationships and, very commonly, relations of per- 
sonal loyalty. 

(c) Gosure on the basis of value-rational commitment to values is 
usual in groups sharing a common system of explicit religious belief. 

(d) Typical cases of rational closure on grounds of expediency are 
economic associations of a monopolistic or a plutocratic character. 

A few examples may be taken at random. Whether a group of peo- 
ple engaged in conversation is open or closed depends on its content. 
General conversation is apt to be open, as contrasted with intimate con- 
versation-ot the imparting of official information. Market relationships 



i o ] Of en and Closed Relationships 4 5 

are in most, or at least in many, cases essentially open. In the case of 
many relationships, both communal and associative, there is a tendency 
to shift from a phase of expansion to one of exclusiveness. Examples are 
the guilds and the democratic city-states of Antiquity and the Middle 
Ages. At times these groups sought to increase their membership in the 
interest of improving the security of their position of power by adequate 
numbers. At other times they restricted their membership to protect 
the value of their monopolistic position. The same phenomenon is not 
uncommon in monastic orders and religious sects which have passed 
from a stage of religious proselytizing to one of restriction in the interest 
of the maintenance of an ethical standard or for the protection of mate- 
rial interests. There is a similar close relationship between the extension 
of market relationships in the interest of increased turnover on the one 
hand, their monopolistic restriction on the other. The promotion of 
linguistic uniformity is today a natural result of the interests of pub- 
lishers and writers, as opposed to the earlier, not uncommon, tendency 
for status groups to maintain linguistic peculiarities or even for secret 
languages to emerge. 

2. Both the extent and the methods of regulation and exclusion in 
1 relation to outsiders may vary widely, so that the transition from a state 

of openness to one of regulation and closure is gradual. Various condi- 
tions of participation may be laid down; qualifying tests, a period of 
probation, requirement of possession of a share which can be purchased 
under certain conditions, election of new members by ballot, member- 
ship or eligibility by birth or by virtue of achievements open to anyone. 
Finally, in case of closure and the appropriation of rights within the 
group, participation may be dependent on the acquisition of an appro- 
priated right. There is * wide variety of different degrees of closure and 
of conditions of participation. Thus regulation and closure are relative 
concepts. There are all manner of gradual shadings as between an ex- 
clusive club, a theatrical audience the members of which have pur- 
chased tickets, and a party rally to which the largest possible number 
has been urged to come; similarly, from a church service open to the 
general public through the rituals of a limited sect to the mysteries of 
a secret cult. 

3. Similarly, closure within the group may also assume the most 
varied forms. Thus a caste, a guild, or a group of stock exchange 
brokers, which is closed to outsiders, may^Ilow to its members a per- 
fectly free competition for all the advantages which the group as a 
whole monopolizes for itself. Or it may assign every member strictly to 
the enjoyment of certain advantages, such as claims over customers 01 
particular business opportunities, for life or even on a hereditary basis. 
This is particularly characteristic of India. Similarly, a closed group of 
settlers (Markgenossensckaft) may allow its members free use of the 
resources of its area or may restrict them rigidly to a plot assigned to 
each individual household. A closed group of colonists may allow free 
use of the land or sanction and guarantee permanent appropriation of 



4 6 BASIC SOCIOLOGICAL TERMS [ Ch. I 

separate holdings. In such cases all conceivable transitional and inter- 
mediate forms can be found. Historically, the closure of eligibility to 
fiefs, benefices, and offices within the group, and the appropriation on 
the part of those enjoying them, have occurred in the most varied forms. 
Similarly, the establishment of rights to and possession of particr 1 
jobs on the part of workers may develop all the way from the "closed 
shop" to a right to a particular job. The first step in this development 
may be to prohibit the dismissal of a worker without the consent of the 
workers' representatives. The development of the "works councils" [in 
Germany after 1918] might be a first step in this direction, though it 
need not be." 

All the details must be reserved for the later analysis. The most 
extreme form of permanent appropriation is found in cases where par- 
ticular rights are guaranteed to an individual or to certain groups of 
them, such as households, clans, families, in such a way that it is speci- 
fied in the order either that, in case of death, the rights descend to specific 
heirs, or that the possessor is free to transfer them to any other person 
at will. Such a person thereby becomes a party to the social relation- 
ship so that, when appropriation has reached this extreme within the 
group, it becomes to that extent an open group in relation to outsiders. 
This is true so long as acquisition of membership is not subject to the 
ratification of the other, prior members. 

4. The principal motives for closure of a relationship are: (a) The 
maintenance of quality, which is often combined with the interest in 
prestige and the consequent opportunities to enjoy honor, and even 
profit, examples are communities of ascetics, monastic orders, especially, 
for instance, the Indian mendicant orders, religious sects like the Puri- 
tans, gitganized groups of warriors, of ntinisteriaUs and other tunc- , 
tionaries, organized citizen bodies as in the Greek States, craft guilds; 

(b) the contraction of advantages in relation to consumption needs 
Q'iahrungssfielTaum)** examples are monopolies of consumption, the 
most developed form of which is a self-subsistent village community; 

(c) the growing scarcity of opportunities for acquisition (Erwerksspiel- 
raum). This is found in trade monopolies such as guilds, the an- 
cient monopolies of fishing rights, and so on. Usually motive (a) is 
combined with (b) or (c). 



1 1 . The Imputation of Social Action: Representation and 
Mutual Responsibility 

■Within a social relationship, whether it is traditional or enacted, cer- 
tain kinds of action of each participant may be imputed to all others, in 
which case we speak o£ "mutually responsible members"; or the action 
ei certain members (the "representatives") may be attributed to the 



1 1 ] Re-presentation and Mutual Responsibility 4 7 

others (the "represented"). In both cases, the members will share the 
resulting advantages as well as the disadvantages. 

In accordance with the prevailing order, the power of representation 
may be (a) completely appropriated in all its forms — the case of self- 
appointed authority (JLigenvollmachi); (b) conferred in accordance with 
particular characteristics, permanently or for a limited term; (c) conferred 
by specific acts of the members or of outside persons, again permanently 
or for a limited term — the cases of "derived" or "delegated" powers. 

There are many different conditions which determine the ways in 
which social relationships, communal or associative, develop relations of 
mutual responsibility or of representation. In general terms, it is possible 
only to say that one of the most decisive is the extent to which the action 
of the group is oriented to violent conflict or to peaceful exchange as its 
end. Besides these, many special circumstances, which can only be dis- 
cussed in the detailed analysis, may be of crucial importance. It is not 
surprising that this development is least "conspicuous in groups which 
pursue purely ideal ends by peaceful means. Often the degree of closure 
against outsiders is c .osely related to the development of mutual responsi- 
bility or of representation. But this is by no means always the case. 

1. Imputation may in practice involve both active and passive mu- 
tual responsibility. All participants may be held responsible for the 
action of any one just as he himself is, and similarly may be entitled to 
enjoy any benefits resulting from this action. This responsibility may 
be owed to spirits or gods, that is, involve a religious orientation; or it 
may be responsibility to other human beings, as regulated by convention 
or by law. Examples of regulation by convention are blood revenge 
carried out against or with the help of members of the kin group, and 
reprisals against the inhabitants of the town or the country of the of- 
fender; of the legal type, formal punishment of relatives and members 
of the household or community, and personal liability of members of a 
household or of a commercial partnership for each other's debts. Mutual 
responsibility in relation to gods has also had very significant historical 
results. For instance, in the covenant of Israel with Jahveh, in early 
Christianity, and in the early Puritan community. 

On the other hand, the imputation may mean no more than that the 
participants in 3 closed social relationship, by virtue of the traditional 
or legal order, accept as legally binding a representative's decisions, 
especially over economic resources. (Examples are the "validity" of de- 
cisions by the executive committee of a voluntary association or by 
the responsible agent of a political or economic organization over re- 
sources which, as specified in the statutes, are meant to serve the group's 
purposes.) 

2. Mutual responsibility is typically found in the following cases: 
(a) In traditional, communal groups based on birth or th» sharing of a 



4 8 BASIC SOCIOLOGICAL TERMS [ Ch. I 

common life; for example, the household and the kinship unit; (b) 
in closed relationships which maintain by force a monopolized position 
and control over the corresponding benefits; the typical case is the 
political association, especially in the past, but also today, most strikingly 
in time of war; (c) in profit-oriented enterprises whose participants 
personally conduct the business; the type case is the business partner- 
ship; (d) in some cases, in labor associations; e.g., the [Russian] artel. 
Representation is most frequently found in associations devoted to 
specific purposes and in legally organized groups, especially when funds 
have been collected and must be administered in the interests of the 
group. This will be further discussed in the Sociology of Law. 

3. The power of representation is conferred according to characteris- 
tics when it goes by seniority or some other such rule. 

4. It is not possible to carry the analysis of this subject further in 
general terms; its elaboration must be reserved to the detailed investiga- 
tion. The most ancient and most universal phenomenon in this field is 
that of reprisal, meant either as revenge or as a means of gaining control 
of hostages, or some other kind of security against future injury. 



12. The Organization 

A social relationship which is either closed or limits the admission of 
outsiders will be called an organization (Verhand) when its regulations 
are enforced by specific individuals : a chief and, possibly, an administra- 
tive staff, which normally also has representative powers. The incumbency 
of a policy-making position or participation in the functions of the staff, 
constitute "executive powers" (,RegieTungsgewakten\ These may be ap- 
propriated, or they may be assigned, in accordan«*with the regulations 
of the organization, to specific persons or to individuals selected on the 
basis of specific characteristics or procedures. "Organized action" is (a) 
either the staff's action, which is legitimated by its executive or represent- 
ative powers and oriented to realizing the organization's order, or (b) 
the members' action as directed by the staff. 27 

1. It is terminologically indifferent whether the relationship is of a 
communal or associative character. It is sufficient for there to be a per- 
son or persons in authority — the head of a family, the executive com- 
mittee of an association, a managing director, a prince, a president, the 
head of a church — whose action is concerned with carrying into effect 
the order governing the organization. This criterion is decisive because 
it is not merely a matter of action which is oriented to an order, but 
which is specifically directed to its enforcement. Sociologically, this adds 
to the concept of a closed social relationship a further element, which is 
of far-reaching empirical importance. For by no means every closed com- 
munal or associative relationship is an organization. For instance,_ this is 



12 ] ^ The Organization 4 9 

not true of an erotic relationship or of a kinship group without a head. 

2. Whether or not an organization exists is entirely a matter of the 
presence of a person in authority, with or without an administrative staff. 
More precisely, it exists so far as there is a probability that certain persons 
wii' act in such a way as to carry out the order governing the organiza- 
tion; that is, that persons are present who can be counted on to act in 
this way whenever the occasion arises. For purposes of definition, it is 
indifferent what is the basis of the relevant expectation, whether it is a 
case of traditional, affectual or value-rational devotion (such as feudal 
fey'ty, loyalty to an officer or to a service). It may, on the other hand, 
be a matter of expediency, as, for instance, a pecuniary interest in the 
attached salary. Thus, for our purposes, the organization does not exist 
ap:\n from the probability that a course of action oriented in this way 
wiSi take place. If there is no probability of this type of action on the 
part of a particular group of persons or of a given individual, there is in 
shiest ten ns only a social relationship. On the other hand, so long as 
there is a probability of such action, the organization as a sociological 
phenomenon continues to exist, in spite of the fact that the specific 
individuals whose action is oriented to the order in question, may have 
been completely changed. The concept has been defined intentionally 
to include precisely this phenomenon. 

3. It is possible (a) that, in addition to the action of the adminis- 
trative staff itself or that which takes place under 'its direction, there 
may be other cases where action of the participants is intended to up- 
hold the authority of the order; for instance, contributions or 'liturgies," 
that is, certain types of personal services, such as jury service or military 
service. It is also possible (b) for the order to include norms to which it 
is expected that the action of the members of an organization will be 
oriented in respects other than those pertaining to the affairs of the 
organization as a unit. For instance, the law of the state includes rules 
governing private economic relations which are not concerned with the 
enforcement of the state's legal order as such, but with action in the 
service of private interests. This is true of most of the "civil" law. In 
the first case (a) one may speak of action oriented to organizational 
affairs (verbandsbezogenes Handeln); in the second (b) of action sub- 
ject to the organization's regulation (verbandsgeregeltes Handeln). It 
is only in the cases of the action of the administrative staff itself and of 
that deliberately directed by it that the term "organized action" (Ver- 
bandskandeln) will be used. Examples of such action would be partici- 
pation in any capacity in a war fought by a state, or a motion which is 
passed by the members at the behest of its executive committee, or a 
contract entered into by the person in authority, the validity of which is 
imposed ,m all members and for which they are held responsible (cf. 
section 11). Further, all administration of justice and administrative 
procedure belongs in this category (cf. section 14). 

An organization may He (a) autonomous or heteronomous, (b) auto- 
sphiilous cr heterocephalous. Autonomy means that the order governing 



J O BASIC SOCIOLOGICAL TERMS [ Ch, I 

the organization has been established by its own members on their own 
authority, regardless of how this has taken place in other respects. In the 
case of heteronomy, it has been imposed by an outside agency. Auto- 
cephaly means that the chief and his staff are selected according to the 
autonomous order of the organization itself, not, as in the case of hetero- 
cephaly, that they are appointed by outsiders. Again, this is regardless 
of any other aspects of the relationship. 

A case of heterocephaly is the appointment of the governors of the 
Canadian provinces by the central government of the Dominion. It is 
possible for a heterocephalous group to be autonomous and an auto- 
cephalous group to be heteronomous. It is also possible in both respects 
for an organization to have both characters at the same time in different ' 
spheres. The member-states of the German Empire, a federal state, were 
autocephalous. But in spite of this, within the sphere of authority of the 
Reich, they were heteronomous; whereas, within their own sphere, in 
such matters as religion and education, they were autonomous. Alsace- 
Lorraine was, under German jurisdiction, in a limited degree autono- 
mous, but at the same time heterocephalous in that the governor was 
appointed by the Kaiser. All those elements may be present in the same 
situation to some degree. An organization which is at the same time 
completely heteronomous and completely heterocephalous is usually 
best treated as a "part" of the more extensive group, as would ordinarily 
be done with a "regiment" as part of an army. But whether this is the 
case depends on the actual extent of independence in the orientation 
of action in the particular case. For terminological purposes, it is entirely 
a question of convenience. 



1 3 , Consensual and Imposed Order in Organizations 

An association's enacted order may be established in one of two ways: 
by voluntary agreement, or by being imposed and acquiesced in. The 
leadership in an organization may claim a legitimate right to impose new 
rules. The "constitution" of an organization is the empirically existing 
porbability, varying in extent, kind and conditions, that rules imposed 
by the leadership will be acceded to. The existing rules may specify that 
certain groups or sections of the members must consent, or at least have 
been heard. Besides this, there may be any number of other conditions. 

An organization's order may be imposed not only on its members hut 
also on certain non-members. This is especially true of persons who are 
linked to a given territorial area by virtue of residence, birth, or the per- 
formance of certain actions. In this case the order possesses "territorial 
validity" (Gebietsgeltung). An organization which imposes its order in 
principle on a territory will be called a "territorial organization" (Gebiets- 



13 ] Consensual and Imposed Order in Organizations 5 1 

verband). This usage will be employed regardless of how fat the claim 
to the validity of its order over its own members is also confined to 
matters pertaining to the area. (Such a limitation is possible 28 and indeed 
occurs to some extent.) 

1. In our terminology, an order is always "imposed" to the extent 
that it does not originate fromta voluntary personal agreement of all the 
individuals concerned. The concept of imposition hence includes "ma- 
jority rule," in that the minority must submit. For that reason there 
have been long periods when the legitimacy of majority rule has either 
not been recognized at all, or been held doubtful. This was true in the 
case of the Estates of the Middle Ages, and in very recent times, in 
the Russian obshchina. (This will he further discussed in the Sociology 
of Law and of Domination.) 

2. Even in cases where there is formally voluntary agreement, it is 
very common, as is generally known, for .there to be a large measure of 
imposition. (This is true of the obshchina.') In that case, it is he actual 
state of affairs which is decisive for sociological purposes. 

3. The concept of constitution made use of here is that also used by 
Lassalle. It is not the same as what is meant by a "written" constitution, 
or indeed by "constitution" in any sort of legal meaning. 29 The only 
relevant question for sociological purposes is when, for what purposes, 
and within what limits, or possibly under what special conditions (such 
as the approval of gods or priests or the consent of electors), the mem- 
bers of the organization will submit to the leadership. Furthermore, 
under what circumstances the administrative staff and the organized 
actions of the group will be at the leadership's disposal when it issues 
orders, in particular, new rules. 

4. The major cases of the territorial imposition of an order are 
criminal law and various other legal rules the applicability of which 
depends on whether the actor was resident, born, performed or com- 
pleted the action within the area controlled by a political organization. 
(Compare the concept of the "territorial corporate organization" — 
Gebietskorpersckaft — as used by Gierke and Preuss.) 30 



1 4 . Administrative and Regulative Order 

Rules which govern organized action constitute an administrative 
order (Verwaltungsordnung). Rules which govern other kinds of social 
action and thereby protect the actors' enjoyment of the resulting benefits 
will be called a regulative order (.Regulierungsordnung). So far as an 
organization is solely oriented to the first type, it will be called an ad- 
ministrative organization; so far as it is oriented to the second type, a 
regulative organization. 



5 1 BASIC SOCIOLOGICAL TERMS [ Ck. I 

i. It goes without saying that the majority of actual organizations 
partake of both characteristics. An example of a merely regulative or- 
ganization would be a theoretically conceivable state based purely on 
the upholding of public order (Rechtsstaat) and committed to absolute 
laissez-faire. (This would imply that even the control of the monetary 
system was left to private enterprise.) 

2. On the concept of organized action see above, sec. 12:3, Under 
the concept of administrative order would be included, all the rules 
which govern not only the action of the administrative'staff, but also 
that of the members in their direct relation to the organization; hence 
these rules pertain to those goals the pursuit of which the administrative 
order seeks to facilitate through prescribed and coordinated action on 
the part of the administrative staff and the members. In a completely 
communist economy almost all social action would be of this character. 
In an absolute laissez-faire state (Rechtsstaai) only the functions of 
judges, police authorities, jurors and soldiers, and activity as legislator 
and voter would be included. The distinction between administrative 
and regulative order coincides in its broad lines, though not always in 
detail, with the distinction between public and private law. (AH further 
details are treated in the Sociology of Law.) 



15. Enterprise, Formal Organization, Voluntary and 
Compulsory Association 

Continuous rational activity of a specified kind will be called an 
enter-prise; an association with a continuously and rationally operating 
staff will be called a formal organization. 

An organization which claims authority only over voluntary members 
will be called a voluntary association (Verein); an organization which 
imposes, within a specifiable sphere of operations, its order (with relative 
success) on all action conforming with certain criteria will be called a 
compulsory organization or association QAnstalt). 

1. The concept of the enterprise covers business conducted by 
political and ecclesiastic organizations as well as by voluntary associa- 
tions insofar as it has rational continuity. 

2. Voluntary as well as compulsory associations are organizations 
with rationally established rules. More correctly, insofar as an organiza- 
tion has rational)- established rules, it is either a voluntary or a com- 
pulsory association. Compulsory organizations are, above all, the state 
with its subsidiary heterocephalous organizations, and the church insofar 
as its order is rationally established. The order governing a compulsory 
association claims to be binding on all persons to whom the particular 
relevant criteria apply — such as birth, residence, or the use of certain 
facilities. It makes no difference whether the individual joined volun- 



15 ] _ Enterprise, Formal Organization, Association 5 3 

tarily; nor does it matter whether he has taken any part in establishing 
the order. It is thus a case of imposed order in the most definite sense. 
Compulsory associations are frequently territorial organizations. 

3. The distinction between voluntary and compulsory associations is 
relative in its empirical application. The rules of a voluntary association 
may affect the interests of non-members, and recognition of the validity 
of these rules may be imposed upon them by usurpation and the exer- 
cize of naked power, but also by legal regulation, as in the case of the 
law governing corporate securities. 

4. It is hardly necessary to emphasize that the concepts of voluntary 
and compulsory associations are by no means exhaustive of all conceiv- 
able types of organizations. Furthermore, they are to be thought of as 
polar types, as are sect and church in the religious sphere. 



1 6 . Power and Domination 

A. "Power" (Macfet) is the probability that one actor within a social 
relationship will be in a position to carry out his own will despite resist- 
ance, regardless of the basis on which this probability rests. 

B. "Domination" (Herrscfcaft)" is the probability that a command 
with a given specific content will be obeyed by a given group of persons. 
"Discipline" is the probability that by virtue of habituation a command 
will receive prompt and automatic obedience in stereotyped Forms, on 
the part of a given group of persons." 

1. The concept of power is sociologically amorphous. All conceiv- 
able qualities of a person and all conceivable combinations of circum- 
stances may put him in a position to impose his will in a given situa- 
tion. The sociological concept of domination must hence be more precise 
and can only mean the probability that a command will be obeyed. 

2, The concept of discipline includes the habituation characteristic 
of uncritical and unresisting mass obedience. 

C. The existence of domination turns only on the actual presence 
of one person successfully issuing orders to others; it does not necessarily 
imply either the existence of an administrative staff or, for that matter, 
of an organization. It is, however, uncommon to find it unrelated to at 
least one of these. A "ruling organization" (Herrschaftsverband') exists 
insofar as its members are subject "to domination by virtue of the estab- 
lished order. 

1. The* head of a household rules without an administrative staff. A 
Bedouin chief, who levies contributions from the caravans, persons and 
shipments which pass his stronghold, controls this group of changing 
individuals, who do not belong to the same organization, as soon and as 



5 4 BASIC SOCIOLOGICAL TERMS [ Ck. I 

long as they face the same situation; but to do this, he needs a follow- 
ing which, on the appropriate occasions, serves as his administrative staff 
in exercising the necessary compulsion. (However, it is theoretically 
conceivable that th'S type of control is exercised by a single individual.) 
2. If it possesses an administrative staff, an organization is always to 
some degree based on domination. But the concept is relative. In gen- 
eral, an effectively ruling organization is also an administrative one. The 
character of the organization is determined by a variety of factors: the 
mode in which tli^ administration is carried out, the character of the 
personnel, the objects over which it exercises control, and the extent of 
effective jurisdiction. The first two factors in particular are dependent in 
the highest degree on the way in which domination is legitimized (see 
ch. III). 



ly. Political and Hierocratic Organizations 

A "ruling organization" will be called "political" insofar as its exist* 
ence and order is continuously safeguarded within a given territorial area 
by the threat and application of physical force on the part of the adminis- 
trative staff. A compulsory political organization with continuous opera- 
tions (politischer Anstaltsbetrieb') will be called a "state" insofar as its 
administrative staff successfully upholds the claim to the monopoly of 
the legitimate use of physical force in the enforcement of its order. Social 
action, especially organized action, will be spoken of as "politically 
oriented" if it aims at exerting influence on the government of a political 
organization; especially at the appropriation, expropriation, redistribution 
or allocation of the powers of government. 

A "hierocratic organization" is an organization which enforces its 
order through psychic coercion by distributing or denying religious 
benefits ("hierocratic coercion"). A compulsory hierocratic organization 
will be called a "church" insofar as its administrative staff claims a 
monopoly of the legitimate use of hierocratic coercion. 

i. It goes without saying that the use of physical force CGewaltsam- 
fceit) is neither the sole, nor even the most usual, method of administra- 
tion of political organizations. On the contrary, their heads have em- 
ployed all conceivable means to bring about their ends. But, at the same 
time, the threat of force, and in the case of need its actual use, is the 
method which is specific to political organizations and is always the last 
resort when others have failed. Conversely, physical force is by no means 
limited to political groups even as a legitimate method of enforcement. 
It has been freely used by kinship groups, household groups, consocia- 
tions and, in the Middle Ages, under certain circumstances by all those 
entitled to bear arms. In addition to the fact that it uses, among other 



ij ] Political and Hierocratic Organizations 5 5 

means, physical force to enforce its system of order, the political organiza- 
tion is further characterized by the fact that the authority of its adminis- 
trative staff is claimed as binding within a territorial area and this claim 
is upheld by force. Whenever organizations which make use of force 
are also characterized by the claim to territorial jurisdiction, such as 
village communities or even some household groups, federations of 
guilds or of workers' associations ("soviets"), they are by definition to 
that extent political organizations. 

2. It is not possible to define a political organization, including the 
state, in terms of the end to which its action is devoted. All the way 
from provision for subsistence to the patronage of art, there is no con- 
ceivable end which some political association has not at some time pur- 
sued. And from the protection of personal security to the administration 
of justice, there is none which all have recognized. Thus it is possible 
to define the "political" character of an organization only in terms of the 
means peculiar to it, the use of force. This means is, however, in the 
above sense specific, and is indispensable to its character. It is even, 
under certain circumstances, elevated into an end in itself. 

This usage does not Exactly conform to everyday speech. But the lat- 
* ter is too inconsistent to be used for technical purposes. We speak of the 
foreign currency policy" of a central bank, the financial policy of an 
association, or the educational ■policy of a local authority, and mean the 
systematic treatment and conduct of particular affairs. It comes consid- 
erably closer to the present meaning when we distinguish the "political" 
aspect or implication of a question. Thus there is the "political" official, 
the "political" newspaper, the "political" revolution, the "political" 
club, the "political" party, and the "political" consequences of an 
action, as distinguished from others such as the economic, cultural, or 
religious aspect of the persons, affairs or processes in question. In this 
usage we generally mean by "political," things that have to do with 
relations of authority within what is, in the present terminology, a 
political organization, the state. The reference is to things which are 
likelyto uphold, to change or overthrow, to hinder or promote, these 
authority relations as distinguished from persons, things, and processes 
which have nothing to do with it. This usage thus seeks to bring out 
the common features of domination, the way it is exercised by the state, 
irrespective of the ends involved. Hence it is legitimate to claim that the 
definition put forward here is only a more precise formulation of what 
is meant in everyday usage in that it gives sharp emphasis to what is 
most characteristic of this -means: the actual or threatened use of force. 
It is, of course, true that everyday usage applies the term "political," 
not only to groups which are the direct agents of the legitimate use of 
force itself, but also to other, often wholly peaceful groups, which at- 
tempt to influence the activities of the political organization. It seems 
best for present purposes to distinguish this type of social action, "politi- 
cally oriented" action, from political action as such, the actual organized 
action of political groups. 



5 6 BASIC SOCIOLOGICAL TERMS [ Ch. 1 

3. Since the concept of the state has only in modern times reached 
its full development, it is best to define it in terms appropriate to the 
modern type of state, but at the same time, in terms which abstract from 
the values of the present day, since these are particularly subject to 
change. The primary formal characteristics of the modern state are as 
follows: It possesses an administrative and legal order subject to change 
by legislation, to which the organized activities of the administrative 
staff, which are also controlled by regulations, are oriented. This sys- 
tem of order claims binding authority, not only over the members of 
the state, the citizens, most of whom have obtained membership by 
birth, but also to a very large extent over all action taking place in the 
area of its jurisdiction. It is thus a compulsory organization with a ter- 
ritorial basis. Furthermore, today, the use of force is regarded as legiti- 
mate only so far as it is either permitted by the state or prescribed by it. 
Thus the right of a father t<? discipline his children is recognized — a 
survival of the former independent authority of the head of a household, 
which in the right to use force has sometimes extended to a power of 
life and death over children and slaves. The clsim of the modern state 
to monopolize the use of force is as essential to it as its character of 
compulsory jurisdiction and of continuous operation, 

4. In formulating the concept of a hierocratic organization, it is not 
possible to use the character of the religious benefits it offers, whether 
worldly or other-worldly, material or spiritual, as the decisive criterion. 
What is important is rather the fact that its control over these values can 
form the basis of a system of spiritual domination over human beings. 
What is most characteristic of the church, even in the common usage 
of the term, is the fact that it is a rational, compulsory association with 
continuous operation and that it claims a monopolistic authority. It is 
normal for a church to strive for complete control on a territorial basis 
and to attempt to set up the corresponding territorial or parochial or- 
ganization. So far as this takes place, the means by which this claim to 
monopoly is upheld will vary From case to case. But historically, its 
control over territorial areas has not been nearly so essential to the 
church as to political associations; and this is particularly true today. It 
is its character as a compulsory association, particularly the fact that one 
beomes a member of the church by birth, which distinguishes the 
church from a "sect." It is characteristic of the latter that it is a volun- 
tary association and admits onlv persons with specific religious qualifi- 
cations. (This subject will be further discussed in the Sociology of Reli- 
gion.) 



NOTES 

Unless otherwise noted, all notes in this chapter are by Talcott Parsons. 
For Parsons' exposition and critique of Weber's methodology, see his introduction 
to The Theory of Social and Economic Organization and his Structure of Social 
Action. 



Notes 5 7 

i. "Uber einige Kategoiien der verstehenden Soziologie," originally in 
Logos, IV, 1 91 3, 253ft; reprinted in GAzW, 427-74. However, the reader should 
be aware from the very beginning that Part Two below, the older and major body of 
the manuscript, follows the terminology of this essay. For some of the relevant ter- 
minology, see Appendix I. CR) 

2. It has not seemed advisable to attempt a rigorous use of a single English 
term whenever Weber employs Verstehen. "Understanding" has been most com- 
monly used. Other expressions such as "subjectively understandable," "interpreta- 
tion in subjective terms," "comprehension," etc., have been used from time to 
time as the context seemed to demand. 

3. In this series of definitions Weber employs several important terms which 
need discussion. In addition to Verstehen, which has already been commented 
upon, there ore four important ones: Dettten, Sinn, Handeln, and Verhalten. 
Deuten has generally been translated as "interpret." As used by Weber in this 
context it refers to the interpretation of subjective states of mind and the meanings 
which can be imputed as intended by an actor. Any other meaning of the word 
"interpretation" is irrelevant to Weber's discussion. The term Sinn has generally 
been translated as "meaning"; and its variations, particularly the corresponding 
adjectives, sinnhaft, sinnvoll, smnfremd, have been dealt with by appropriately 
modifying the term meaning. The reference here again is always to features of 
the content of subjective states of mind or of symbolic systems which are ulti- 
mately referable to such states of mind. 

The terms Handeln and Verhalten are directly related. Verhalten is the 
broader term referring to any mode of behavior of human individuals, regardless 
of the frame of reference in terms of which it is analysed. "Behavior" has seemed 
to be the most appropriate English equivalent. Handeln, on the other hand refers 
to the concrete phenomenon of human behavior only insofar as it is capable of 
"understanding." in Weber's technical sense, in terms of subjective categories. 
The most appropriate English equivalent has seemed to he "action." This corre- 
sponds to [Parsons'] usage in The Structure of Social Action and would seem 
to be fairly well established. "Conduct" is also similar and has sometimes been 
used. Deuten, Verstehen, and Sinn are thus applicable to human behavior only 
insofar as it constitutes action or conduct in this specific sense. 

4. Weber's text in Part One is organized in a manner frequently found in the 
German academic literature of his day, in that he first lays down certain funda- 
mental definitions and then proceeds to comment on them. These comments, which 
apparently were not intended to be "read" in the ordinary sense, but rather serve 
as reference material for the clarification and systematization of the theoretical 
concepts and their implications, are in the German edition printed in a smaller 
type; a convention which we have followed in the rest of Part One. However, while 
in most cases the comments are relatively brief, under the definitions of "sociology" 
and "social action" Weber wrote what are essentially methodological essays (sec. 
1 :a-b), which because of their length we have printed in the ordinary type. (R) 

5. Weber means by "pure type" what he himself generally called and what 
has come to be known in the literature about his methodology as the "ideal type." 
The reader may be referred for general orientation to Weber's own essay (to 
which he himself refers below), "Die 'Objektivitat* soziahvissenschaftlicher Er- 
kenntnis" (" 'Objectivity' in Social Science and Social Policy," in Max Weber: 
The Methodology of the Social Sciences. Edward Shils and Henry Finch, trans, 
and eds. (Glencoe: The Free Press, 1949), 50-113; originally published in 
AfS, vol. 19, 1904, reprinted in GAzW, 146-214); to two works of Alexander von 
Schelting, "Die logische Theorie der historischen Kultunvissenschaften von Max 



5 8 BASIC SOCIOLOGICAL TERMS [ Ck. I 

Weber," AfS, vol. 49, 1922, 623s and Max Webers Wissenschaftslehre, 1934; 
Talcott Parsons, The Structure of Social Action (New York: McGraw-Hill, 
i937)r ch. 16; Theodore Abel, Systematic Sociology in Germany, (New York: 
Columbia University Press, 1929). [See now also Raymond Aron, German Soci- 
ology, trans, by M. and T. Bottomore (New York: The Free Press of Glencoe, 
1964), based on 2nd French ed. of 1950.] 

6. This is an imperfect rendering of the German term Evidenz, for which, 
unfortunately, there is no good English equivalent. It has hence been rendered in 
a number of different ways, varying with the particular context in which it 
occurs. The primary meaning refers to the basis on which a scientist or thinker 
becomes satisfied of the certainty or acceptability o£ a proposition. As Weber him- 
self points out, there are two primary aspects of this. On the one hand a conclu- 
sion can be "seen" to follow from given premises by virtue of logical, mathemat- 
ical, or possibly other modes of meaningful relation. In this sense one "sees" the 
solution of an arithmetical problem or the correctness of the proof of a geometrical 
theorem. The other aspect is concerned with empirical observation. If an act of 
observation is competently performed, in a similar sense one "sees" the truth of 
the relevant descriptive proposition. The term Evidenz does not refer to the process 
of observing, but to the quality of its result, by virtue of which the observer feels 
justified in affirming a given statement. Hence "certainty" has seemed a suitable 
translation in some contexts, "clarity" in others, "accuracy" in still others. The 
term "intuition" is not usable because it refers to the process rather than to he 
result. 

7. Weber here uses the term aktuelles Verstehen, which he contrasts with 
erklarendes Verstehen. The latter he also refers to as motivationsmdssig. "Aktu- 
ell" in this context has been translated as "observational." It is clear from Weber's 
discussion that the primary criterion is the possibility of deriving the meaning of 
an act or symbolic expression from immediate observation without reference to any 
broader context. In erklarendes Verstehen, on the other hand, the particular act 
must be placed in a broader context of meaning involving facts which cannot be 
derived from immediate observation of a particular act or expression. , 

8. The German term is Sinnzusammenhang. It refers to aplurality of ele- 
ments which form a coherent whole on the level of meaning. There are several 
possible modes of meaningful relation between such elements, such as logical con- 
sistency, the esthetic harmony of a style, or the appropriateness of means to an 
end. In any case, however, a Sinnzusammenhang must fc» distinguished from a 
system of elements which are causally interdependent. There seems to be no sin- 
gle English term or phrase which is always adequate. According to variations in 
context, "context of meaning," "complex of meaning," and sometimes "meaning- 
ful system" have been employed. 

9. The German is gemcinter Sinn. Weber departs from ordinary usage not 
only in broadening the meaning of this conception. As he states at the end of the 
present methodological discussion, he does not restrict the use of this concept to 
cases where a clear self-conscious awareness of such meaning can be reasonably 
attributed to every individual actor. Essentially, what Weber is doing is to formu- 
late an operational concept. The question is not whether in a sense obvious to the 
ordinary person such an intended meaning "really exists," but whether the con- 
cept is capable of providing a logical framework within which scientifically impor- 
tant observations can be made. The test of validity of the observations is not 
whether their object is immediately clear to common sense, but whether the results 
of these technical observations can be satisfactorily organized and related to those 
of others in a systematic body of knowledge. 



Notes 5 9 

io. The above pa Mage is an exceedingly compact statement of Weber's theory 
of the logical condition* of proof of causal relationship. He developed this most 
fully in bis ewy on " 'Objectivity' in Social Science . . . ," op. tit. It is also dis- 
cussed in Other p*rt* of GAzW. The best and fullest secondary discussion is to 
be found in Scbelting'* book. Max Wehers Wissenschaftsiehre. There is a briefer 
discussion in Parsons Structure of Social Action, cb. 16. 

ii. See Eduard Meyer, Geschichte des Altertums, i<- si, vol. Ill, 420, 444fF, 
and Weber's essay on "Critical Studies in the Logic of the Cultural Sciences," in 
Shils and Finch, eds., op. tit., 1 1 3-188; also in GAzW, 21 5-90. (R) 

1 2. The expression sinnhafte AdSquanz is one of the most difficult of Weber's 
technical terms to translate. In most places the cumbrous phrase "adequacy on the 
level of meaning" has had to be employed. It should be clear from the progress of 
the discussion that what Weber refers to is a satisfying level of knowledge for the 

Particular purposes of the subjective state of mind of the actor or actors. He is, 
owever, careful to point out that causal adequacy involves in addition to this a 
satisfactory correspondence between the results of observations from the subjec- 
tive point of view and from the objective; that is, observations of the overt course 
of action which can be described without reference to the state of mind of the 
actor. For a discussion of the methodological problem involved here, see Structure 
of Social Action, chaps. II and V. 

r3. This is the first occurrence in Weber's text of the term Chance which he 
uses very frequently. It is here translated by "probability," because he uses it as 
interchangeable with Wahrschein1ichke.it. As the term "probability" is used in a 
technical mathematical and statistical sense, however, it implies the possibility of 
numerical statement. In most of the cases where Weber uses Chance this is out of 
the question. It is, however, possible to speak in terms of higher and lower de- 
grees of probability. To avoid confusion with the technical mathematical concept, 
the term "likelihood" will often be used in the translation. It is by means of this 
concept that Weber, in a biddy ingenious way, has bridged the gap between the 
interpretation of meaning and the inevitably more complex facts of overt action. 

14. The term "reincation" as used by Professor Morris Cohen in his book, 
Reason and Nature, seems to fit Weber's meaning exactly. A concept or system of 
concepts, which critical analysis can show to be abstract, is "reified" when it is 
used naively as though it provided an adequate total description of the concrete 
phenomenon in question. The fallacy of ' reification" is virtually another name 
tor what Professor Whitehead has called "the fallacy of misplaced concreteness.'' 
See his Science and the Modern World. 

15. See August Weismann, Die AUmacht der Naturzuchtung (Jena: Fischer, 
1893); his opponent was probably Alexander Gotte 0840-1922), author of 
Lekrbuch der Zoologie (Leipzig: Engelmann, 1902) and of Tierkunde (Stras- 
bourg: Trttbner, 1904). (R) 

16. In the above classification as well as in some of those which follow, 
the terminology is not standardized either in German or in English. Hence, 
just as there is a certain arbitrariness in Weber's definitions, the same is true of 
any corresponding set of definitions in English. It should be kept in mind that 
all of them are modes of orientation of action to patterns which contain a 
normative element. "Usage" has seemed to be the most appropriate translation 
of Branch since, according to Weber's own definition, the principal criterion is 
that "it is done to conform with the pattern." There would also seem to be 
good precedent for the translation of Sitte by "custom." The contrast with 
fashion, which Weber takes up in his first comment, is essentially the same in 
both languages. The term Interessenlage presents greater difficulty. It involves 



6 O BASIC SOCIOLOGICAL TERMS { Ch. 1 

two components: the motivation in terms of self-interest and orientation to the 
opportunities presented by the situation. It has not seemed possible to use any 
single term to convey this meaning in English and hence, a more roundabout 
expression has had to be resorted to. 

17. The term "convention" in Weber's usage is narrower than Branch. The 
difference consists in the fact that a normative pattern to which action is 
oriented is conventional only insofar as it is regarded as part of a legitimate 
order, whereas the question of moral obligation to conformity which legitimacy 
implies is not involved in "usage." The distinction is closely related to that of 
W. G. Sumner between "mores" and "folkways." It has seemed best to retain 
the English term closest to Weber's own. 

18. It is, in a sense, the empirical reference of this statement which consti- 
tutes the central theme of Weber's series of studies in the Sociology of Religion. 
Insofar as he finds it possible to attribute importance to "ideas" in the determina- - 
tion of action, the most important differences between systems of ideas are not 
so much those in the degree of ration a iiza tion as in the direction which the 
process of rationalization in each case has taken. This series of studies was left 
uncompleted at his death, but all the material which was in a condition fit for 
publication has been assembled in the three volumes of the Gesammelte 
Aufsatze zur Religionssoziologie CGAzRS}. 

19. It has'not been possible to identify this reference of Weber's. It refers 
most probably to a projected conclusion which was never written, 

20. The reader may readily become confused as to the basis of the following 
classification, as compared with that presented in sec. 7. The first classification 
is one of motives for maintaining a legitimate order in force, whereas the second 
is one of motives for attributing legitimacy to the order. This explains the in- 
clusion of self-interested motives in the 6rst classification, but not in the second. 
It is quite possible, for instance, for irreligious persons to support the doctrine 
of the divine right of kings, because they fee! that the breakdown of an order 
which depends on this would have undesirable consequences. This is not, how- 
ever, a possible motive on which to base a direct" sense of pcisona! mora! obliga- 
tion to conform with the order. < 

21. Rheinstein's emendation, see his edition, op. cii., 7. (R) 

22. In 1745, Maurice de Saxc defeated the British under the Duke of 
Cumberland even though he sustained heavy losses in the one-sided opening 
round, (R) 

23. A cautionary note is in order here: The definitions of conflict or struggle 
(K<wnpf) and of power (section 16) have often been wrenched out of context 
in discussions of Weber as a "power politician." The present section, however, 
defines the varieties of con flic t, from the extreme case of violent, unlimited 3nd 
unregulated struggle to peaceful and regulated competition. In fact, mere con- 
flict and power are not Weber's major concern, which is rather with variously 
regulated and legitimated actions and their group context. (R) 

24. As Weber goes- on to explain, he uses Vergemeinschaftung and Ver«c- 
selhchaftung in 3 continuous rather than a dichotomous sense, and thus main- 
tains his critical distance from Tonnies' paired contrast of Gemeinschuft and 
Geselhchaft. Similarly, Weber rejected Gierke's invidious contrast between 
"cold-blooded" Roman law and "communal" Germanic law, even though he 
started his career as a Germanist rather than a Romanist (R) 

25. This is a reference to the Betriehsrcite which were formed in German 
industrial plants during the Revolution of 1918-19 and were recognized in the 
Weimar Constitution as entitled to representation in the Federal Economic 



Notes 6 i 

Council. The standard work in English is W. C. Guillebaud, The Works 
Council. A German Experiment in Industrial Democracy (Cambridge University 
Press, 1928), 

26. Weber's term here is Nahrungsspielraum. The concept refets to the 
scope of economic resources and opportunities on which the standard of living 
of an individual or a group is dependent.. By contrast with this, Erwerbxfielrttum 
is a similar scope of resources and economic opportunities seen from the point 
of view of their possible role as sources of profit. The basic distinction implied in 
this contrast is of central importance to Weber's analysis later on (see chapter 
II, sec. 1 off.). 

27. The term "corporate group" for Verband, as used by Parsons, is. open 
to misunderstandings on both the common-sense and the historical level since 
Weber's term includes more than cither economic groups or self-governing, often 
professional bodies. Parsons' alternative term, "organized group," has been re- 
tained. The term "organization" should be understood literally in the sense of a 
group with an "organ," but not necessarily of a rationalized kind* the latter would 
make it an "enterprise" or a "formal organization" (see sec. 15). — For Weber's 
older definition of Verband and Verbandshandeln see Appendix I. (R) 

28. The concept "objective possibility" (ofc/eJttive Moglichkeit) plays an 
important technical role in Weber's methodological studies. According to bis 
usage, a thing is "objectively possible" if it "makes sense" to conceive it as an 
empirically existing entity. It is a question of conforming with the formal, 
logical conditions. The question whether a phenomenon which is in this sense 
"objectively possible" will actually be found with any significant degree of 
probability or approximation, is a logically distinct question. 

29. See Ferdinand I.assallc, "Ober Verfassungswesen" (1862), in Gesam- 
melte Beden und Schriften, Eduard Bernstein, ed. (Berlin: Cassirer, 19:9), 7-62. 

00 

30. See Otto Gierke, Geschichte des deutschen Korperschaftsbegriffs (Berlin-. 
Weidmann, 1873), 829; Hugo Preuss, Gemeinde, Staat, Reich ah Gcbii tshorper- 
schaft (1889). Preuss, one of Gierke's pupils, exerted decisive influence on the 
making of the Weimar constitution, to which Weber also contributed at about 
the same time that he worked intermittently on these definitions. ( W and R) 

. 31. In his translation Parsons pointed out that "the term Herrschaft has no 
satisfactory English equivalent. The term "imperative control," however, as used 
by N. S. Timashcff in his Introduction to the Sociology of Law is close to 
Weber's meaning" (Parsons, ed., of. cit., 152). Therefore, he borrowed 1 this term 
"for the most general purposes." At a later time. Parsons indicated that he now 
preferred the term "leadership," For more specific purposes, however, he used the 
, term "authority." In objecting to "domination" (as used by Bendix and Rhein- 
stein/Shils) Parsons noted: "It is true to be sure that the term Herrschaft, which 
in its most general meaning I should now translate as "leadership," implies that 
a leader has power over his followers. But "domination" suggests that this fact, 
rather than the integration of the collectivity, in the interest of effective func- 
tioning (especially the integration of the crucial Verband or corporate group), is 
the critical factor from Weber's point of view. I do not believe that the former 
interpretation represents the main trend of Weber's thought, although he wis in 
certain respects a "realist" m the analysis of power. The preferable inttrpietation, 
as I see it, is represented especially by his tremendous emphasis on the importance 
of legitimation. I should therefore wish to stick to my own decision to translate 
legitime Herrschaft, which for Weber was overwhelmingly the most significant 
case for general structural analysis, as authority.'" . Si'C T Parsons' review article 



6 2 BASIC SOCIOLOGICAL TERMS [ Ch. I 

of Reinhard Bendix, Max Weben An baeP^ctttci Portrait, in American Soda- 
logical "Review, 15:5, i960, 752.) 

I prefer the term domination in this section because Weber stresses die fact 
of mem compliance with a command, which may be due to habit, a belief in 
legitimacy, or to considerations of expediency. However, Weber emphasizes here 
as later that, in addition to the willingness of subjects to comply with a command, 
there is usually a staff, which again may act on the basis or habit, legitimacy or 
self-interest. Sociologically, a Herrschaft is a structure of superordination and 
subordination, of leaders and led, rulers and ruled; it is based on a variety of 
motives and of means of enforcement. In ch. Ill, Weber presents a typology of 
legitimate Hemchaft where the term "authority" is indeed feasible. However, in 
ch. X, he deals extensively with both faces of Herrschaft- legitimacy and force. It 
should he clear to the reader that both "domination'' and "authority" are "cor- 
rect'* although each stresses a different component of Hemcfutft Moreover, in 
Part Two a HetTscJwft is quite specifically the medieval setgnewie or manor or simi- 
lar structures in patrimonial regimes. This is also the historical derivation of the 
term. For a major, and sociologically valuable, study see Otto Brunnej, Land und 
Herrsckaft: Grundfragen der temUmalen Verfassvngsgnckichu Ottmreichs hn 
MitteUdier (Vienna, 1950). (R) .' ■' 

31. For the earlier discussion of discipline, see Part Two, ch. XrV:«ii:i, "The 
Meaningof Discipline." / 

33. The German is DevisenpoUtik, Translation in this context is made more 
difficult by the fact that the German language does not distinguish between 
"politics" and "policy," Politik having both meanings. The remarks which Weber 
makes about various kinds of policy would have been unnecessary, had he written 
originally in English. . 



CHAPTER XI 

SOCIOLOGICAL CATEGORIES 
OF ECONOMIC ACTION 



Prefatory Note 

' What foBoWtis not intended in any sense to be "economic theory." 
Rather, it consistt&nly in an attempt to define certain concepts which 
are frequently used and to analyze certain of the simplest sociological 
relationships in the economic sphere. As in the first chapter, the procedure 
here has-been determined entirely by consideratkMB of convenience. It 
has proved possible entirely to avoid the controversial concept of "value." 1 
The usage here, in the relevant sections on the division of labor [see sec. 
isff.], has deviated from the tctminclogy of Karl Bucher only so far as 
seemed necessary for the purposes of me present undertaking. For the 
present all questions of dynamic process will be left out of account. 

r. The Concept of Economic* Action 

Action will be said to be "economicaHy oriented" so far as, according 
to its subjective meaning, it is concerned with the satisfaction of a desire 
, for "utilities" (JNutdetsttmgen), "Economic action" QVirtschaften) is 
any peaceful exercise of an. actor's control over resources which is in its 
main impulse oriented towards economic ends. "Rational economic ac- 
tion" requires instrumental rationality in this orientation, that is, deliber- 
ate planning. We will call autocephalous economic action an "economy" 
(Wirtschaft), and an organized system of continuous economic action 
an "economic establishment" ( Wirtschaftsbetrieb^. 

i. It was pointed out above (ch. I, sec. i:b) that economic ac- 
tion as such need not be social action. 

[6 3 1 



64 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ch. II 

Xy The definition of economic action must be as general as possible 
and must bring out the fact that a! I "economic" processes and objects are 
characterized as such entirely by the meaning they have for human ac- 
tion in such roles as ends, means, obstacles, and by-products. It is not, 
however, permissible to express this by saying, as is sometimes done, that 
economic action is a "psychic" phenomenon. The production of goods, 
prices, or even the "subjective valuation" of goods, if they are empirical 
processes, are far from being merely psychic phenomena. But underlying 
this misleading phrase is a correct insight. It is a fact that these phenom- 
ena have a peculiar type of subjective meaning. This alone defines the 
unity of the corresponding processes, and this alone makes them accessi- 
ble to subjective interpretation. 

The definition of "economic action" must, furthermore, be formu- 
lated in such a way as to include the operation of a modem business en- 
terprise fun for profit. Hence the definition cannot be based directly on 
"consumption needs" and the "satisfaction" of these needs, but must, 
rather, start out on the one hand from the fact that there is a desire (de- 
mand) for utilities (which is true even in the case of orientation to 
purely monetary gains), and on the other hand from the fact that •pro- 
vision is being made to furnish the supplies to meet this demand (which 
is true even in the most primitive economy merely "satisfying needs," 
and regardless of how primitive and frozen in tradition the methods of 
this provision are). 

3. As distinguished from "economic action" as such, the term "eco- 
nomically oriented action" will be applied to two types: (a) every action 
which, though primarily oriented to other ends, takes account, in the 
pursuit of them, of economic considerations; that is, of the consciously 
recognized necessity for economic prudence. Or (b) that which, though 
primarily oriented to economic ends, makes use of physical force as a^ 
means. It thus includes all primarily non-economic action and all non- 
peaceful action which is influenced by economic considerations. "Eco- 
nomic action", thus is a conscious, primary orientation to economic con- 
siderations. It must he conscious, for what matters is not the objective 
necessity of making economic provision, but the belief that is is neces- 
sary. Robert Liefmann has rightly laid emphasis on the subjective un- 
derstandable orientation of action which makes it economic action. He 
is not, however, correct in attributing the contrary view to al! other au- 
thors. 2 

4. Every type of action, including the use of violence, may he eco- 
nomically oriented. This is true, for instance, of war-h'ke action, such as 
marauding expeditions and trade wars. Franz Oppenheimer, in particu- 
lar, has rightly distinguished "economic" means from "political" means. 3 
It is essential to distinguish the latter from economic action. The use of 
force is unquestionablv very strongly opposed to the spirit of economic ac- 
quisition in the usual sense. Hence the term "economic action" will not 
be applied to the direct appropriation of goods by force and the direct 
coercion of the other party by threats of force. It goes without saying, at 



i ] _ The Concept of Economic Action 6 5 

the same time, that exchange is not the only economic means, though it 
is one of the most important. Furthermore, the formally peaceful provi- 
sion for the means and the success of a projected exercise of force, as in 
the case of armament production and economic organization for war, is 
just as much economic action as any other. 

Every rational course of political action is economically oriented with 
respect to provision for the necessary means, and it is always possible for 
political action to serve the interest of economic ends. Similarly, though 
it is not necessarily true of every economic system, certainly the modem 
economic order under modern conditions could not continue if its con- 
trol of resources were not upheld by the legal compulsion of the state; 
that is, if its formally "legal" rights were not upheld by the threat of 
force. But the fact that an economic system is thus dependent on protec- 
tion by force, does not mean that it is itself an example of the use of 
force. 

How entirely untenable it is to maintain that the economy, however 
defined, is only a means, by contrast, for instance, with the state, be- 
comes evident from the fact that it is possible to define the state itself 
.only in terms of the means which it today monopolizes, namely, the use 
of force. If anything, the most essential aspect of economic action for 

Ectical purposes is the prudent choice between ends. This choice is, 
vever, oriented to the scarcity of the means which are available or 
could be procured for these various ends. 

5. Not every type of action which is rational in its choice of means 
will be called "rational economic action," or even "economic action" in 
any sense; in particular, the term "economy" will be distinguished from 
that of "technology."* The "technique" of an action refers to the means 
employed as opposed to the meaning or end to which the action is, in 
the last analysis, oriented. "Rational" technique is a choice of means 
which is consciously and systematically oriented to the experience and 
reflection of the actor, which consists, at the highest level of rationality, 
in scientific knowledge. What is concretely to be treated as a "techni- 
nique" is thus variable. The ultimate meaning of a concrete act may, 
seen in the total context of action, be of a "technical" order; that is, it 
, may be significant only as a means in this broader context. Then the 
"meaning" of the concrete act (viewed from the larger context) lies in 
its technical function; and,- conversely, the means which are applied in 
order to accomplish this are its "techniques." In this sense there are 
techniques of every conceivable type of action, techniques of prayer, of 
asceticism, of thought and research, of memorizing, of education, of ex- 
ercising political or hierocratic domination, of administration, of making 
love, of making war, of musical performances, of sculpture and painting, 
of arriving at legal decisions. AH these are capable of the widest varia- 
tion in degree of rationality. The presence of a "technical question" al- 
ways means that there is some doubt over the choice of the most rational 
means to an end. Among others, the standard of rationality for a tech- 
nique may be the famous principle of "least effort," the achievement of 



66 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

an optimum in. the relation between the result and the means to be ex- 
pended on it (and not the attainment of a result with the absolute min- 
imum of means). Seemingly the same principle, of course, applies to 
economic action — or to any type of rational action. But there it has a 
different meaning. As long as the action is purely "technical" in the pres- 
ent sense, it is oriented only to the selection of the means which, with 
equal quality, certainty, and permanence of the result, are comparatively 
most "economical" of effort in the attainment of a given end; compara- 
tively, that is, insofar as there are at all directly comparable expenditures 
of means in different methods of achieving the end. The end itself is 
accepted as beyond question, and a purely technical consideration ig- 
nores other wants. Thus, in a question of whether to make a technically 
necessary part of a machine out of iron or platinum, a decision on tech- 
nical grounds alone would, so long as the requisite quantities of both 
metals for their particular purpose were available, consider only which 
of the two would in this case best bring about the given result and 
would at the same time minimize the other comparable expenditure of 
resources, such as labor. But once consideration is extended to take ac- 
count of the relative scarcity of iron and platinum in relation to their 
potential uses, as today every technician is accustomed to do even in the 
chemical laboratory, the action is ho longer in the present sense purely 
technical, but also economic. From the economic point of view, "techni- 
cal" questions always involve the consideration of "costs." This is a 
question of crucial importance for economic purposes and in this con- 
text always takes the form of asking what would be the effect on the 
satisfaction of other wants if this particular means were not used for 
satisfaction of one given want. The "other wants" may be qualitatively 
different present wants or qualitatively identical future wants, (A simi- - 
Iar position is taken by Friedrich von Gottl-Ottlilienfeld in Grundriss 
der SoziaUfkonomik, Part II, 2; an extensive and very good discussion of 
this issue in R. Liefmann, Grundsatze der VolkswirtschaftslehTe, vol. I 
(3rd ed.), p. 3iiff. Any attempt to reduce all means to "ultimate ex- 
penditures of labor" is erroneous.) 

For the answer to the question, what is, in comparative terms, the 
"cost" of using various means for a given technical end, depends in the 
last analysts on their potential usefulness as means to other ends. This is 
particularly true of labor. A technical problem in the present sense is, 
for instance, that of what equipment is necessary in order to move loads 
of a particular kind or in order to raise mineral products from a given 
depth in a mine, and which of the alternatives is the most "suited," that 
is, among other things, which achieves a given degree of success with 
the least expenditure of effort. It is, on the other hand, an economic 
problem whether, on the assumption of a market economy, these expen- 
ditures will pay off in terms of money obtained through the sale of the 
goods; or, -on the assumption of a planned economy, whether the nec- 
essary labor and other means of production can be provided without 
damage to the satisfaction of other wants held to be more urgent. In 
both cases, it is a problem of the comparison of ends. Economic action 



] The Concept of Economic Action 6 7 

is primarily oriented to the problem of choosing the end to which a 
thing shall be applied; technology, to the problem, given the end, of 
choosing the appropriate means. For purposes of the theoretical (not, of 
course, the practical) definition of technical rationality it is wholly in- 
different whether the product of a technical process is in any sense use- 
ful. In the present terminology we can conceive of a rational technique 
for achieving ends which no one desires. It would, for instance, be possi- 
ble, as a kind of technical amusement, to apply all the most modern 
methods to the production of atmospheric air. And no one could take 
the slightest exception to the purely technical rationality of the action. 
Economically, on the other hand, the procedure would under normal 
circumstances be clearly irrational because there would be no demand 
for the product. (On all this, compare v. Gottl-OttHHenfeld, op. cit.) 

The fact that what is called the technological development of mod- 
em times has been so largely oriented economically to profit-making is 
one of the fundamental facts of the history of technology. But however 
fundamental it has been, this economic orientation has by no means 
stood alone in shaping the development of technology. In addition, a 
part has been played by the games and cogitations of impractical ideolo- i 

gists, a part by otherworldly interests and all sorts of fantasies, a part by 
preoccupation with artistic problems, and by various other non.-economic 
motives. None the less, the main emphasis at all times, and especially 
the present, has lain in the economic determination of technological 
development. Had not rational calculation formed the basis of economic 
activity, had there not been certain very particular conditions in its 
economic background, rational technology could never haw come into 
existence. 

The fact that the aspects of economic orientation which distinguish 
it from technology were not explicitly brought into the initial definition, 
is a consequence of the sociological starting point. From a sociological 
point of view, the weighing of alternative ends in relation to each other 
and to costs is a consequence of "continuity." This is true at least so far 
as costs mean something other than altogether giving up one end in ■■... 

favor of more urgent ones. An economic, theory, on the other hand, vZ 

would do well to emphasize this criterion from the start. 

6. It is essential to include the criterion of power of control and dis- 
posal (Verfugungsgewatt)* in the sociological concept of economic ac- 
tion, if for no other reason than that at least a modern market economy 
CErwerbswirtschaft) essentially consists in a complete network of ex- . 
change contracts, that is, in deliberate planned acquisitions of powers of 
control and disposal. This, in such an economy, Is the principal source 
of the relation of economic action to the law. But any other type of or- 
ganization of economic activities would involve some kind of de facte 
distribution of powers of control and disposal, however different its un- «. 
derlying principles might be from those of the modem private enterprise 
economy with its legal protection of such powers held by autonomous 
and autocephalous economic units. Either the central authority, as in the 
case of socialism, or the subsidiary parts, as m anarchism, must be able 



6 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. 11 

to count on having some kind of control over the necessary services of 
labor and of the means of production. It is possible to obscure this fact 
by verbal devices, but it cannot be interpreted out of existence. For pur- 
poses of definition it is a matter of indifference in what way this control 
is guaranteed; whether by convention or by law, or whether it does riot 
even enjoy the protection of any external sanctions at all, but its security 
rests only on actual expectations in terms of custom or self-interest. 
These possibilities must be taken into account, however essential legal 
compulsion may be for the modem economic order. The indispensability 
of powers of control for the concept of social action in its economic 
aspects thus does not imply that legal order is part of that concept by 
definition, however important it may be held to be on empirical 
grounds. 

7. The concept of powers of control and disposal will here be taken 
to include the possibility of control over the actor's own labor power, 
whether this is in some way enforced or merely exists in fact. That this 
is not to be taken for granted is shown by its absence in the case of 
slaves. 

8. It is necessary for the purposes of a sociological theory of eco- 
nomic action to introduce the concept of "goods" at an early stage, as is 
done in sec. 1. For this theory is concerned with a type of action which 
is given its specific meaning by the results of the actors' deliberations, 
which themselves can be isolated only in theory [but cannot be observed 
empirically]. Economic theory, the theoretical insights of which provide 
the basis for the sociology of economic action, might (perhaps) be able 
to proceed differently; the latter may find it necessary to create its own 
theoretical constructs. 



2. The Concept of Utility 

By "utilities" (Nutzleisttmgen) will always be meant the specific and 
concrete, real or imagined, advantages CChancen) of opportunities for 
present or future use as they are estimated and made an object of specific 
provision by one or more economically acting individuals. The action of 
these individuals is oriented to the estimated importance of such utilities 
as means for the ends of their economic action. 

Utilities may be the services of non-human or inanimate objects or 
of human beings. Non-human objects which are the sources of potential 
utilities of whatever sort will be called "goods." Utilities derived from a 
human source, so far as this source consists in active conduct, will be 
called "services'* (Leistwtgcn). Social relationships which are valued as 
a potential source of present or future disposal over utilities are, however, 
also objects of economic provision. The opportunities of economic ad- 
vantage, which are made available by custom, by the constellation of 



2 ] The Concept of Utility 6 9 * 

interest, or by a conventional or legal order for the purposes of an eco- 
nomic unit, will be called "economic advantages." 

On the following comments, compare E. von Bohm-Bawerk, Rechte 
und Verhaltnisse vom Standfunkt der volkswirtschaftlichen Giiterlehre 
(Innsbruck 1881). 

1. The categories of goods and services do not exhaust those aspects 
of the environment which may be important to an individual for eco- 
nomic purposes and which may hence be an object of economic con- 
cern. Such things as "good will," or the tolerance of economic measures 
on the part of individuals in a position to interfere with them, and nu- 
merous other forms of behavior, may have the same kind of economic 
importance and may be the object of economic provision and, for in- , 

. stance, of contracts. It would, however, result in a Confusion of con- 
cepts to try to bring such things under either of these two categories. 
This choice of concepts is thus entirely determined by consideration of 
convenience. 

2. As Bohm-Bawerk has correctly pointed out, it would be equally 
imprecise if all concrete objects of life and of everyday speech were 

v without distinction designated as "goods," and the concept of a good 
were then equated to that of a material utility. In the strict sense of 
utility, it is not a "horse" or a "bar of iron" which is an economic "good," 
but the specific ways in which they can be put to desirable and practical 
uses; for instance the power to haul loads or to carry weights, or some- 
thing of the sort. Nor can we, in the present terminology, call goods ' 
such potential future advantages (Chancen') which appear as objects of 
exchange in economic transactions, as "good will," "mortgage," "prop- 
erty." Instead, for simplicity's sake, we shall call the services of such 
potential powers of control and disposal over the utilities of goods and 
services, promised or guaranteed by the traditional or legal order, "eco- 
nomic advantages" (CfeoMceM) or simply "advantages" wherever this is 
not likely to be misunderstood. 

3. The fact that only active conduct, and not mere acquiescence, 
permission, or omission, are treated as "services" is a matter of conven- 
ience. But it must be remembered that it follows from this that goods 
and services do not constitute an exhaustive classification of all econom- 
ically significant utilities. 

On the concept of 'labor," see below, sec. 15. 



3 . Modes of the Economic Orientation of Action 

Economic orientation may be a matter of tradition or of goal-oriented 
rationality. Even in cases where there is a high degree of rationalization 
of action, the element of traditional orientation remains considerable. 
For the most part, rational orientation is primarily significant for "mana- 
gerial" action, no matter under what form of organization. (See below, 



7 O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

sec. 15.) The development of rational economic action from the instinc- 
tively reactive search for food or traditional acceptance of inherited 
techniques and customary social relationships has been to a large extent 
determined by non-economic events and actions, including those outside 
everyday routine," and also by the pressure of necessity in cases of in- 
creasing absolute or relative limitations on subsistence. 

1. Naturally there cannot in principle be any scientific standard for 
any such concept as that of an "original economic state." It would be 
possible to agree arbitrarily to take die economic state on a given tech- 
nological level, as, for instance, that characterized by the lowest devel- 
opment of tools and equipment known to us, and to treat it and analyze 
it as the most primitive. But; there is no scientific justification for con- 
cluding from observations of living primitive peoples on a low techno- 
logical level that the economic organization of all peoples of the past 
with similar technological standing has been the same as, for instance, 
that of the Vedda or of certain tribes of the Amazon region. For, from 
a purely economic point of view, this level of technology has been just 
as compatible with large-scale organization of labor as with extreme 
dispersal in small groups (see below, sec. r6). It is impossible to infer 
from the economic aspects of the natural environment alone, which of 
these, would be more nearly approached. Various non-economic factors, 
for instance, military, could make a substantial difference. 

2. War and migration are not in themselves economic processes, 
though particularly in early times they have been largely oriented to 
economic considerations. At all times, nowewt, indeed up to the pres- 
ent, they have often been responsible for radical changes in the eco- 
nomic system. In cases where, through such factors as cOmatic changes, 
inroads of sand, or deforestation, there has been an absolute decrease in , 
the means of subsistence, human groups have adapted themselves in 
widely differing ways, depending on the structure of interests and on 
the manner in which non-economic factors have played a role.* The typ- 
ical reactions, however, have been s fall in the standard of living and 
an absolute decrease i population. Similarly, in cases of relative impov- 
erishment in means of subsistence, as determined by a given standard of 
living and of the distribution of chances of acquisition, there have also 
been wide variations. But on the whole, this type of situation has, more 
frequently than the other, been met by the increasing rationalization of 
economic activities. Even in this case, however, it is not possible to make 
general statements. So far as the "statistical" information can be relied 
upon, there was a tremendous increase of population In China after the 
beginning of the eighteenth century, but it had exacdy the opposite 
effect from the similar phenomenon of about the same time in Europe. 

It is, however, possible to say at least something about the reasons for 
this (see below, sec, n.). The chronic scarcity of the means of subsist- 
ence in the Arabian desert has only at certain times resulted in a change 
in the economic and political structure, and these changes have been 



3 ] Modes of Economic Orientation of Action 7 1 

most prominent when non-economic Creligious) developments have 
played a part. 

3. A high degree of traditionalism in habits of life, such as charac- 
terized the laboring classes in early modem times, has not prevented a 
great increase in the rationalization of economic enterprise under capi- 
talistic direction. But it was also compatible with, for instance, the ration- 
alization of public finances in Egypt on a state-socialistic model. Nev- 
ertheless, this traditionalistic attitude had to be at least partly overcome 
in the Western World before the further development to the specifically 
modem type of rational capitalistic economy could take place. 



4. Tyfical Measures of Rational Economic Action 

The following are typical measures of rational economic action: 

(1) The systematic Allocation as between present and future of util- 
ities, on the control of which the actor for whatever reason feels able to 
count. (These are the essential features of saving.) 

(2) The systematic allocation of available utilities to various potential 
uses in the order of their estimated relative urgency, ranked according to 
the principle of marginal utility. 

These two cases, the most definitely "static," have been most highly 
developed in times of peace. Today, for the most part, they take the form 
of the allocation of money incomes. 

■ (3) The systematic procurement* through production or transporta- 
tion of such utilities for which all the necessary means of production are 
controlled by the actor himself. Where action is rational, this type of 
action will take place so far as, according to the actor's estimate, the 
urgency of his demand for the expected result of the action exceeds the 
necessary expenditure, which may consist in (a) the irksomeness of the 
requisite labor services, and (b) the other potential uses to which the 
requisite goods could be put; including, that is, the utility of the potential 
alternative products and'their uses. This is "production" in the broader 
sense, which includes transportation. 

(4) The systematic acquisition, by agreement (VergeseUschaftung) 
with the present possessors or with competing bidders, of assured powers 
of control and disposal over utilities. The powers of control may or may 
not be shared with others. The occasion may lie in the fact that utilities 
themselves are in the control of others, that their means of procurement 
are in such control, OX that third persons desire to acquire them in such 
a way as to endangeflfhe actor's own supply. 

The relevant rational association (Vergeselhckaftung) with the 
present possessor of a power of .control or disposal may consist in (a) the 



7 2 SOCIOLOGICAL- CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

establishment of an organization with, an order to which the procurement 
and use of utilities is to be oriented, or (b) in exchange. In the first case 
the purpose of the organization may be to ration the procurement, use, or 
consumption, in order to limit competition of procuring actors. Then it 
is a "regulative organization." Or, secondly, its purpose may be to set 
up a unified authority for the systematic administration of the utilities 
which had hitherto been subject to a dispersed control. In this case there 
is an "administrative organization." 

"Exchange" is a compromise of interests on the part of the parties in 
the course of which goods or other advantages are passed as reciprocal 
compensation. The exchange may be traditional or conventional, 8 and 
hence, especially in the latter case, not economically rational. Or, sec- 
ondly, it may be economically rational both in intention and in result. 
Every case of a rationally oriented exchange is the resolution of a pre- 
viously open or latent conflict of interests by means of a compromise. The 
opposition of interests which is resolved in the compromise involves the 
actor potentially in two different conflicts. On the one hand, there is the 
conflict over the price to be agreed upon with the partner in exchange; 
the typical method is bargaining. On the other hand, there may also he 
competition with actual or potential rivals, either in the present or in the 
future, who are competitors in the same market. Here, the typical method 
is competitive bidding and offering. 

i. Utilities, and the goods or labor which are their sources, are un- 
der the control (Eigenverfugung) of an economically acting individual 
if he is in a position to be able in fact to make use of them at his con- 
venience Cat least, up to a point) without interference from other per- 
sons, regardless of whether this ability rests on the Bfcal order, on con- 
vention, on custom or on a complex of interests. It is by no means true 
that only the legal assurance of powers of disposal is decisive, either for 
the concept or in fact. It is, however, today empirically an indispensable 
basis for economic activitiy with the material means of production. 

2. The fact that goods are not as yet consumable may be a result of 
the fact that while they are, as such, finished, they are not yet in a suit- 
able place for consumption; hence the transportation of goods, which 
is naturally to be distinguished from trade, a change in the control over 
the goods, may here be treated as part of the process of production. 

3. When there is a lack of control (Eigenverfugung) over desired 
utilities, it is in principle indifferent whether the individual is typically 
prevented from forcibly interferir^j|with the control of others by a legal 
order, convention, custom, his own 1 self-interest, or his consciously-held 
moral standards. 

4. Competition in procurement may exist under the most various 
conditions. It is particularly important when supplies are obtained by 
seizure, .as in hunting, fishing, lumbering, pasturage, and clearing new 



4 I Typical Measures of Rational Economic Action 7 3 

land. It may also, and most frequently does, exist within an organization 
which is closed to outsiders. An order which seeks to restrain such 
competition then always consists in the rationing of supplies, usually 
combined with the appropriation of the procurement possibilities thus 
guaranteed for the benefit of a limited number of individuals or, more 
often, households. AH medieval Mark- and fishing associations, the reg- 
ulation of forest clearing, pasturage and wood gathering rights in the 
common fields and wastes, the grazing rights on Alpine meadows, and 
so on, have this character. Various types of hereditary property-rights in 
land owe their development to this type of regulation, 

5. Anything which may in any way be transferred from the control 
of one person to that of another and for which another is willing to give 
compensation, may be an object of exchange. It is not restricted to goods 
and services, but includes all kinds of potential ecpnomic advantages; for 
instance., "good will," which exists only by custom or self-interest and 
cannot be enforced; in particular, however, it includes all manner of ad- 
vantages, claims to which are enforceable under some kind of order. 
Thus objects of exchange are not* necessarily presently existing utilities. 

For present purposes, by "exchange" in the broadest sense will be 
meant every case of a formally voluntary agreement involving the offer 
of any sort of present, continuing, or future utility in exchange for util- 
ities of any sort offered in return. Thus it includes the turning over of 
the utility of goods or money in exchange for the future return of the 
same kind of goods. It also includes any sort of permission for, or toler- 
ance of, the use of an object in return for "rent" or "hire," or the hiring 
of any kind of services forNvages or salary. The fact that the last exam- 
ple today involves, from a sociological point of view, the subjection of 
the "worker," as defined in sec. 15 below, under a form of domination 
will, for preliminary purposes, be neglected, as will the distinction be- 
tween loan and purchase. 

6. The conditions of exchange may be traditional, partly traditional 
though enforced by convention, or rational. Examples of conventional 
exchanges are exchanges of gifts between friends, heroes, chiefs, princes; 
as, for instance, the exchange of armor between Diomedes and Glaucos. 
It is not uncommon for these to be rationally oriented and controlled 
to a high degree, as can be seen in the Tell-el-Amarna documents. 
Rational exchange is only possible when both parties expect to profit 
from it, or when one is under compulsion because of his own need or 
the other's economic power. Exchange may serve either purposes of 
consumption or of acquisition (see below, sec. 1 1). It may thus be ori- 
ented to provision for the personal use of the actor or to opportunities 
for profit. In the first case, its conditions are to a large extent differenti- 
ated from case to case, and it is in this sense irrational. Thus, for in- 
stance, household surpluses will be valued according to the individual 
marginal utilities of the particular household economy and may on oc- 
casion be sold very cheaply, and the fortuitous desires of the moment 
may establish the marginal utility of goods which are sought in ex- 



7 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

change at a very high level. Thus the exchange ratios, as determined by 
marginal utility, wul fluctuate widely. Rational competition develops 
only in the case o£ "marketable goods" Csee sec. 8) and, to the highest 
degree, when goods are used and sold in a profit system Csee sec. 1 0. 

7. The modes of intervention of a regulatory system mentioned above 
under point (4) are not the only possible ones, but merely those which 
are relevant here because they are the most immediate consequences of 
a tightening of the supply basis. The regulation of marketing processes 
will be discussed below. 



5. Types of Economic Organizations 

According to its relation to the economic system, an economically 
oriented organization may be: (a) an "economically active organization" 
Cwirtschaftender Verhand) if the primarily non-economic organized ac- 
tion oriented to its order includes economic action; (b) an "economic 
organization" (WirtsckaftsverbaneO if its organized action, as governed 
by the order, is ■pn-marily autocephalous economic action of a given kind; 
(c) an "economically regulative organization" (yrirtschaftsreguHerender 
VerbancT) if the autocephalous economic activity of the members is 
directly oriented to the order governing the group; that is, if economic 
action is heteronomous in that respect; (d) an "organization enforcing 
a formal order" (Ordnungsverband)* if its order merely guarantees, by 
means of formal rules, the autocephalous and autonomous economic 
activities of its members and the corresponding economic advantages thus 
acquired. 

1. The state, except for the socialistic or communist type, and all 
other organizations like churches and voluntary associations are econom- 
ically active groups if they manage their own financial affairs. This is 
also true of educational institutions and all other organizations which 
are not primarily economic. 

2. In the category of "economic organizations" in the present sense 
are included not only business corporations, co-operative associations, 
cartels, partnerships, and so on, but all permanent economic establish- 
ments (Brtrfefee) which involve the activities of a plurality of persons, all 
the way from a workshop run by two artisans to ft conceivable commu- 
nistic organization of the whole world. 

3. "Economically regulative organizations" are the following: medi- 
eval village associations, guilds, trade unions, employers' associations, 
cartels, and all other groups, the directing authorities of which carry 
on an "economic policy" which seeks tf regulate both the ends and the 
procedures of economic activity. It thus includes the villages and towns 
of the Middle Ages, just as much as a modem state which follows such 
apolky. 



5 ] Types of Economic Organizations 7 5 

4. An example of a group confined to the "enforcement of a formal 
order" is the pure laissez-faire state, which would leave the economic 
activity of individual households and enterprises entirely free and con- 
fine its regulation to the formal function of settling disputes connected 
with the fulfillment of free contractual obligations. 

5. The existence of organizations "regulating economic activity" or 
merely "enforcing a formal order" presupposes in principle a certain 
amount of autonomy in the field of economic activity. Thus there is in 
principle a sphere of free disposal over economic resources, though it 
may he limited in varying degrees by means of rules to which the ac- 
tors are oriented. This implies, further, the Cat least relative) appropri- 
ation of economic advantages, over which the actors then have autono- 
mous control; The purest type of a group "enforcing a formal order" is 
thus present when all human action is autonomous with respect to 
content, and oriented to regulation only with respect to form, and when 
all non-human sources of utility are completely appropriated so that in- 
dividuals can have free disposal of them, in particular by exchange, as 
is the case in a modem property system. Any other kind of limitation on 
appropriation and autonomy implies "regulation of economic activity," 
because it restricts the orientation of human activities. 

6. The dividing line between "regulation of economic activity" and 
mere "enforcement of a formal order" is vague. For, naturally, the type 
of "formal" order not only may, but must, in some way also exert a 
material influence on action; in some cases, a fundamental influence. 
Numerous modem legal ordinances, which claim to do no more than 
set up formal rules, are so drawn up that they actually exert a material 
influence (see "Soc. of Law," Part Two; ch. VIII). Indeed, a really 
s,trict limitation to purely formal rules is possible only in theory. Many 
of the recognized "overriding" principles of law, of a kind which cannot 
he dispensed with, imply to an appreciable degree important limitations 
on the content of economic activity. Especially "enabling provisions" 
can under certain circumstances, as in corporation law, involve quite 
appreciable limitations on economic autonomy. 

7. The limits of the material regulation of economic activity may 
■ he reached when it results in (a) the abandonment of certain kinds of 

economic activity, as when a tax on turnover leads to the cultivation of 
land only for consumption; or 00 in evasion, in such cases as smug 
gling, boodegging, etc. 



6. Media of Exchange, Means of Payment, Money 

A material object offered in exchange will be called a "medium of 
exchange" so far as it is typically accepted primarily by virtue of the fact 
that the recipients estimate that they will, within the relevant time hori- 
zon, be able to utilize it in another exchange to procure other goods at an 
acceptable exchange ratio, regardless of whether it is exchangable for 



76 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

all other goods or only for certain specific goods, The probability that the 
medium of exchange will be accepted at a given rate for specific other 
goods will be called its "substantive val; lity" (materiale Gehung) in rela- 
tion to these. The use itself will be cahed the "formal validity" {formate 
Geltung}. 

An object will be called a "means of payment" so far as its acceptance 
in payment of specific agreed or imposed obligations is guaranteed by 
convention or by law. This is the "formal validity" of the means of pay- 
ment, which may also signify its formal validity as a means of exchange. 
Means of exchange or of payment will be called "cbartal" Qchartaiy" 
when they are artifacts which, by virtue of their specific form, enjoy a - 
definite quantum, conventional or legal, agreed or imposed, of formal 
. validity within the membership of a group of persons or within a ter- 
ritorial area; and when (b) they are divisible in such a way that they 
represent a particular unit of nominal value or a multiple or a fraction 
of it, so that it is possible to use diem in arithmetical calculations. 

"Money" we call a chartal means of payment which is also a means 
of exchange. 

An organization will be called a "means of exchange," "means of 
payment," or "money" group insofar as it effectively imposes within the 
sphere of authority of its orders the conventional or legal (tormol) 
validity of a means of exchange, of payment, or money; these will be 
termed "internal", means of exchange, etc. Means used in transactions 
with non-members will be called "external" means of exchange. 

Means of exchange or of payment which are not chartal are "natural", 
means. They may be differentiated (a) in technical terms, according to 
their physical characteristic— they may be ornaments, clothing, useful 
objects of various sorts — or according to whether their utilization occurs 
in terms of weight or not. They may also (b) be distinguished economi- 
cally according to whether they are used primarily as means of exchange 
or for purposes of social prestige, the prestige of possession. They may 
also be distinguished according to whether they are used as means of ex- 
change and payment in internal or in external transactions. 

Money, means of exchange or of payment are "tokens" so far as they 
do not or no longer possess a value independent of their use as means of 
exchange and of payment. They are, on the other hand, "material" means 
so far as their value as such is influenced by their possible use for other 
purposes, or may be so influenced. 

Money may consist either of coined or of note (document) money. 
Notes are usually adapted to a system of coinage or have a name which is 
historically derived from it. 

(1) Coined money will be called "free" money or "market" money 
so far as the monetary metal will be coined by the mint on thelnitiative 



6 ] Media of Exchange, Means of Payment, Money 7 7 

of any possessor of it without limit of amount. This means that in effect 
the amount issued is determined hy the demand of parties to market 
transactions. 

(2) It will be called "limited" money or "administrative" money if 
the transformation of the metal into its chartal form (coinage) is subject 
to the formally quite arbitrary decisions of the governing authority of an 
organization and is in effect primarily oriented to its fiscal needs, 

(3) It will be called "regulated" money if, though its issue is limited, 
the kind and amount of coinage is effectively subject to rules. 

The term "means of circulation" will be applied to a document which 
functions as "note" money, if it is accepted in normal transactions as "pro- 
visional" money with the expectation that it can, at any time, be con- 
verted into "definitive" money, that is into coins, or a given weight of 
monetary metal. It is a "certificate" if this is assured by regulations which 
require maintenance of stocks providing full coverage in coin or bullion. 

We call "conversion scales" the conventional or legally imposed ex- 
change ratios valid within an organization for the different "natural" 
nieans of exchange or payment. 

"Currency money" is the money which by the effective arrangements 
within an organization has validity as a means of payment without limi- 
tation on the amount that need he accepted. ''Monetary material" is the 
material from which money is made; "monetary metal" is this material 
in the case of market money. "Monetary value scale" we call the relative 
valuation of the various subdivisions and denominations, consisting of 
different material substances, of "note" or "administrative" money; the 
same ratios in the case of types of market money made of different mc-uls 
we call "exchange ratios." 

"International" means of payment are those means of payment which 
serve to balance accounts between different monetary systems, that is, so 
far as payments are not postponed bv funding operations. 

Every reform of the monetary system by an organization must neces- 
sarily take account of the fact that certain means of payment have 
previously been used for the liquidation of debts. It must cither accept as 
legal their continued use as a means of payment, or impose new uiies. In 
the latter case an exchange ratio must be established bctwcvii the old 
units, whether natural, by weight, or chartal, and the new ones. This is 
the principle of the so-called "historical" definition of money as a means 
of payment. It is impossible here to discuss how far this reacts upon the 
exchange relation between money as a means of exchange and goods. 

It should be strongly emphasized that the present discussion is not 
an essay in monetary theory, but only an attempt to work out the sim- 
plest possible formulations of a set of concepts which will have to be 



7 8 .SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ch. 11 

frequently employed later on. In addition, this discussion is concerned 
primarily- with certain very elementary sodohffcal consequences of the 
use of money. The formulation of monetary theory, which has been 
most acceptable to the author, is that of von Mises." The Stootlfcfee 
Theorie des Geides by G. F. Knapp" is the most imposing work in the 
field and in its way solves the formal problem brilliantly. It is, how- 
ever, as will be seen below, incomplete for substantive monetary prob- 
lems. Its able and valuable attempt to systematize terminology and con- 
cepts will be left out of account at this point 

i. Means of exchange and means of payment very often, though by 
no means always, coincide empirically. They are, however, particularly 
likely not to do so in primitive conditions. The means of payment for 
dowries, tribute, obligatory gifts, fines, wergild, etc., are often specified 
in convention or by law without regard to any relation to the means of 
exchange actually in circulation. It is only when the economic affairs of 
the organization are administered in money terms that von Mises* con- 
tention that even the state seeks means of payment only as a means of 
exchange becomes tenable. This has not been true of cases where the 
possession of certain means of payment has been primarily significant as 
a mark of social status. (See Heinrich Schurtz, Grundriss einer Entsteh- 
ungsgeschichte des Geides, 1898). With die introduction of regulation 
of money by the state, means of payment becomes the legal concept and 
means of exchange die economic concept. 

a. There seems at first sight to be an indistinct line between a 
"good" which is purchased solely with a view to its future resale and a 
medium of exchange. In fact, however, even under conditions which 
are otherwise primitive there is a strong tendency for particular objects 
to monopolize the function of medium of exchange so completely that 
there is no doubt about their status. Wheat futures are traded in terms 
which imply that there will be a final buyer. Therefore they cannot be 
treated as means of payment or medium of exchange, let alone money, 

3. So long as there is no officially sanctioned money, what is used as 
means of exchange is primarily determined by the customs, interests, 
and conventions to which the agreements between the partie* to trans- 
actions are oriented. The reasons why specific things have become ac- 
cepted as means of exchange cannot be gone into here. They have, 
however, been exceedingly various and tend to he determined by the 
type of exchange which has been of the greatest importance. By no 
means every medium of exchange, even within the social group where 
it has been employed, has been universally acceptable for every type of 
exchange. Far instance, cowry shells, though used for other things, have 
not been acceptable in payment for wives or cattle. 

4. Sometimes means of payment which were not the usual means of 
exchange have played an important part in the development of money 
to its special status. As G F. Knapp has pointed out, the fact that vari- 
ous types of debt have existed, such as obligations stemming from trib- 
utes, dowries, payments for bride purchase, conventional gifts to kings 



6 ] Media of Exc&mge, Means 'of Payment,. Money , 7 9 

or by king? to each other, wergild, etc., and the fact that these have 
often been payable in certain specific media, has created for these media, 
by convention or by law, a special position. Very often they have been ' 
specific types of artifacts. 

5. Money in the meaning of the present terminology may have been 
the one-fifth shekel pieces bearing the stamp of merchant firms which 
are mentioned in the Babylonian records, on the assumption, that i«. 
that they were actually used as means of exchange. On the other hand, 
bars of bullion which were not coined, but weighed, will here not be 
treated as money, but only as means of payment and exchange. The 
fact, however, that they were weighed has been enormously important 
for the development of the habit of economic calculations. There are, 
naturally, many transitional forms, such as the acceptance of coins by 
weight rather than by denomination. 

6. "Chartal" is a term introduced by Knapp in his Staatliche Theo- 
rie des Geldes. All types of money which have been stamped or coined, 
endowed with validity by law or by agreement, belong in this category, 
whether they were metal or not. It does not, however;, seem reasonable 
to confine the concept to regulations by the state and not to include 
cases where acceptance is made compulsory by convention or by some 
agreement. There seems, furthermore, to be no reason why actual mint- 
fog by the state or under the control of the political authorities should 
he a decisive criterion. For long periods this did not exist in China at all 
and was very much limited in the European Middle Ages. As Knapp 
would agree, it is only the existence of norms regulating the monetary 
form which is decisive. As will be noted below, validity as a means of 
payment'and formal acceptability as means of exchange in private trans- 
actions may be made compulsory by law within the jurisdiction of the 
political authority. 

7. Natural means of exchange and of payment may sometimes be 
used more for internal transactions, sometimes more for external. The 
details need not be considered here. The question of the substantive 
validity of money will be taken up later. 

8. This is, furthermore, not the place to take up the substantive 
theory of money in its relation to prices so fat as this subject belongs in 
the field of economic sociology at all. For present purposes it will suffice 

■ to state the fact that money, in its most important forms, is used, and 
then to pf8ceed"'to develop some of the most general sociological con- 
sequences of this fact, which is merely a formal matter when seen from 
an economic point of view. It must, howevet, be emphasized that money 
can never be merely a harmless "voucher" or a purely nominal unit of 
accounting so long as it is money. Its valuation is always in very complex 
ways dependent also on its scarcity or, in case of inflation, on its over- 
abundance. This has been particularly evident in recent times, but is 
equally true for all times. 

A socialistic regime might issue vouchers, in payment for a given 
quantity of socially useful 'labor," valid for the purchase of certain 



8o SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ch. JI 

types of goods. These might be saved or used in exchange, but their 
behavior would follow the rules of barter exchange, not of money, 
though the exchange might be indirect. 

9. Perhaps the most instructive case of the Far-reaching economic 
consequences of the relations between the monetary and non-monetary 
uses of a monetary metal is that of Chinese monetary history, because 
copper money, with high costs of production and wide fluctuations in 
output of the monetary meta!, permits an especially clear view of the 
phenomena involved. 



7. The Primary Consequences of the Use of Money. 
Credit 

The primary consequences of the widespread use of money are; 

( 1 ) The so-called "indirect exchange" as a means of satisfying con- 
sumers' wants. The use of money makes it possible to obtain goods which 
are separated from those offered in exchange for them in space, in time, 
in respect to the persons involved, and, what is very important, in respect 
to the quantity on each side of the transaction. This results in a tremen- 
dous extension of the area of possible exchange relationships. 

(2.) The valuation in terms of money of delayed obligations, espe- 
cially of compensatory obligations arising out of an exchange Cshat is, 
debts). This is, of course, closely related to the first point. 

(3) The so-called "storage of value"; that is, the accumulation of 
money in specie or in the form of claims to payment collectable at any 
time as a means of insuring future control over opportunities of advanta- 
geous economic exchange. 

(4) The increasing transformation of all economic advantages into 
the ability to control sums of money. 

(5) The qualitative individuation of consumption and, indirectly, its 
expansion for those who have control of money, of claims to money pay- 
ment, or of opportunities to acquire money. This means the ability to 
offer money as a means of obtaining goods and services of all kinds. 

(6) The orientation of the procurement of utilities, as it has become 
widespread today, to their bearing on the marginal utility of the sums of 
money which the directing authorities of an economic unit expect to he 
able tc£ontrol in the relevant future. 

(7) With this goes the orientation of acquisitive activities to all the 
opportunities which are made available by the extension of the area of 
possible exchanges, in time, in place, and with respect to personal agents, 
as noted above. 



7 ] Primary Consequences of the Use of Money. Credit 8 i 

(8) AH of these consequences are dependent on what is, in princi- 
ple, the most important fact of all, the possibility of monetary calculation; 
that is, the possibility of assigning money values to all goods and services 
which in any way might enter into transactions of purchase and sale. 

In substantive as distinguished from formal terms, monetary calcula- 
tion means that goods are not evaluated merely in terms of their im- 
mediate importance as utilities at the given time and place and for the 
given person only. Rather, goods are more or less systematically com- 
pared, whether for consumption or for production, with all potential 
future opportunities of utilization or of gaining a return, including their 
possible utility to an indefinite number of other persons who can be 
brought into the comparison insofar as they are potential buyers of the 
powers of control and disposal of the present owner. Where money cal- 
culations have become typical, this defines the "market situation" of the 
good in question. (The above statement formulates only the simplest and 
best-known elements of any discussion of "money" and does not need 
to be further commented upon. The sociology of the "market" will not 
yet be developed here. On the formal concepts, see sees. 8 and io.) 

The term "credit" in the most general sense will be used to designate 
any exchange of goods presently possessed against the promise of a future 
transfer of disposal over utilities, no matter what they may be. The grant- 
ing of credit means in the first instance that action is oriented to the 
probability that this future transfer of disposal will actually take place. 
In this sense the primary significance of credit lies in the fact that it 
makes it possible for an economic unit to exchange an expected future 
surplus of control over goods or money against the present control of 
some other unit over goods which the latter does not now intend to use- 
Where the action is rational, both parties expect an improvement in their 
position, regardless of what it consists in, over what it would be under 
the present distribution of resources without the exchange. 

i. It is by no means necessary for the advantages in question to be 
. economic. Credit may be granted and accepted for all conceivable pur- 
poses, for instance, charitable and military. 

2. Credit may be granted and accepted in kind or in money, and in 
both cases the promises may be of concrete goods or services or of 
money payments. Carrying out credit transactions in terms of money, 
however, means that they become the subject of monetary calculations 
with all the attendant consequences, which will be discussed below. 

3. This definition (of credit) for the most part corresponds to the 
usual one. It is clear that credit relationships may exist between organi- 
zations of all sorts, especially socialist or communist organizations. If 
theft* exist side by side several such groups, which are not economically 
autarkic, credit relationships are unavoidable. When the use of money 



/ 



8 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

is completely absent, 18 there is a difficult problem of finding a rational 
basis of calculation. For die mere fact of the possibility of transactions 
involving compensation in the future does not tell us anything about 
the degree of rationality with which the parties agree on the conditions, 
especially in the case of long-term credit. Such parties would be in some- 
what the same situation as the household economic units (oifeos) of an- 
cient times which exchanged their surpluses for things they had need 
of. But there is this difference, that in the present situation die interests 
of huge masses on a long-term basis would be at stake; and for rhe great 
masses of the low-income groups, the marginal utility of present con- 
sumption is particularly high. Thus there would be a probability that 
goods urgently needed could only be obtained on unfavorable terms. 

4. Credit may be obtained and used for the purpose of satisfying 
. present consumption needs which are inadequately provided for. Even 

in that case it will, so far as the action is economically rational, only be 
granted in exchange for advantages. This is not, however, historically 
usual for the earliest type of consumption credit and especially for 
p emergency credit, the motives for which more frequently stemmed from 
an appeal to ethical obligations. This will be discussed in Part Two, chap. 
111:2. , 

5, What is the most common basis of credit, in money or in kind, 
when it is granted for profit, is very obvious. It is the fact that, because 
the lender is usually in a better economic situation, the marginal utility 
of future expectations, as compared with present ones, is higher than it 
is for the borrower. It should, however, be noted that what constitutes 
a "better" situation is highly relative. 



8. The Market 

By the "market situation" (.Marktlage) for any object of exchange is 
meant all the opportunities of exchanging it for money which are known 
to the participants in exchange relationships and aid their orientation in 
the competitive price struggle. 

"Marketability" (MarktgangigkeiO is the degree of regularity with 
which an object tends to be an object of exchange on the market. 

"Market freedom" is the degree of autonomy enjoyed by the parties 
to market relationships in the price struggle and in competition. 

"Regulation of the market," on the contrary, is the state of affairs 
where there is a substantive restriction, effectively enforced by the pro- 
visions of an order, on Ihe marketability of certain potential objects of 
exchange or on the market freedom of certain participants. Regulation 
of the market may be determined CO traditionally, by the actors' be- 
coming accustomed to traditionally accepted limitations on exchange or 
to traditional conditions; (2) by convention, through social disapproval 



8 ) The Market 8 3 

of treating certain utilities as marketable or of subjecting certain objects 
of exchange to free competition and free price determination, in general 
or when undertaken by certain groups of persons; (3) by law, through 
legal restrictions on exchange or on the Freedom of competition, in gen- 
eral or for particular groups of persons or for particular objects of ex- 
change. Legal regulations may take the form of influencing the market 
situation of objects of exchange by price regulation, o. of limiting the 
possession, acquisition, or exchange of rights of control and disposal over 
certain goods to certain specific groups of persons, as in the case of legally 
guaranteed monopolies or of legal limitations on economic action. (4) By 
voluntary action arising from the structure of interests. In this case there 
is substantive regulation of the market, though the market remains for- 
mally free. This type of regulation tends to develop when certain par- 
ticipants in the market are, by virtue of their totally or approximately 
exclusive control of the possession of or opportunities to acquire certain 
utilities — that is, of their monopolistic powers — in a position to influence 
the market situation in such a way as actually to abolish the market free- 
dom of others. In particular, they may make agreements with each other 
and with typical exchange partners for regulating market conditions. 
Typical examples are market quota agreements and price cartels. 

i. It is convenient, though not necessary, to confine the term "mar- 
ket situation" to cases of exchange for money, because it is only then 
that uniform numerical statements of relationships become possible. 
Opportunities for exchange in kind are best described simply as "ex- 
change opportunities." Different kinds of goods are and have been mar-/ 
ketable in widely different and variable degrees, even where a money 
economy was well developed. The details cannot be gone into here. In 
general, articles produced in standardized form in large quantities and 
widely consumed have been the most marketable; unusual goods, only 
occasionally in demand, the least. Durable consumption goods which can 
be used up over long periods and means of production with a long or 
indefinite life, above all, agricultural and forest land, have been mar- 
ketable to a much less degree than finished goods of everyday use or 
means of production which are quickly used up, which can be used only 
once, or which give quick returns. 

2. Rationality of the regulation of markets has been historically asso- 
ciated with the growth of formal market freedom and the extension of 
marketability of goods. The original modes of market regulation have 
been various, partly traditional and magical, partly dictated by kinship 
relations, by status privileges, by military needs, by welfare policies, and 
not least by the interests and requirements of the governing authorities 
of organizations. But in each of these cases the dominant interests have 
not been primarily concerned with maximizing the opportunities of ac- 
quisition and economic provision of the participants in the market 



8 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

themselves; have, indeed, often been in conflict with them. CO Some- 
times the effect has been to exclude certain objects from market dealings, 
either permanendy or for a time. This has happened in the magical 
case, by taboo; in that of kinship, by the entailing of landed property; 
on the basis of social status, as with knightly fiefs. In times of famine 
the sale of grain has been temporarily prohibited. In other cases per- 
mission to sell has been made conditional on a prior offer of the good 
to certain persons, such as kinsmen, co-members of the status group, of 
the guild, or of the town association; or the sale has been limited by 
maximum prices, as is common in war time, or by minimum prices. 
Thus, in the interests of their status dignity magicians, lawyers, or phy- 
sicians may not be allowed to accept fees below a certain minimum. (.2) 
Sometimes certain categories of persons, such as members of the nobil- 
ity, peasants, or sometimes even artisans, have been excluded from 
market trade in general or with respect to certain commodities. (3) 
Sometimes the market freedom of consumers has been restricted by regula- 
tions, as by the sumptuary laws regulating the consumption of different 
status groups, or by rationing in case of war or famine. (4) Another type 
is the restriction of the market freedom of potential competitors in the 
interest of the market position of certain groups, such as the professions or 
the guilds. Finally, (5) certain economic opportunities have been reserved 
to the political authorities (royal monopolies) or to those holding a charter 
from such authorities. This was typical for the early capitalistic mono- 
polies. 

Of all these, the fifth type of market regulation bad the highest 
"market-rationality," and the first the lowest. By "rationality" we here 
mean a force which promotes the orientation of the economic activity 
of strata interested in purchase and sale of goods on the market to the , 
market situations. The other types of regulation fit in between these two 
with respect to their rationality-impeding effect. The groups which, rel- 
ative to these forms of regulation, have been most interested in the free- 
dom of the market, have been those whose interests lay in the greatest 
possible extension of the marketability of goods, whether from the point 
of view of availability for con sumption, or of ready opportunities for 
sale. Voluntary market regulation first appeared extensively and per- 
manently only on behalf of highly developed profit-making interests. 
With a view to the securing of monopolistic advantages, this could take 
several forms: (i) the pure regulation of opportunities for purchase and 
sale, which is typical of the widespread phenomena of trading mono- 
polies: (2) the regulation of transportation facilities, as in shipping and 
railway monopolies; ( 3} the monopolization of the production of certain 
goods; and (4) that of the extension of credit and of financing. The last 
two types generally are accompanied by an increase in the regulation of 
economic activity by organizations. But unlike the primitive, irrational 
forms of regulation, this is apt to be oriented in a methodical manner to the 
market situation. The starting point of voluntary market regulation has in 
general been the fact that certain groups with a far-reaching degree of 



8 ] _ The Market 8 5 

actual control over economic resources have been in a position to take 
advantage o£ the formal Freedom of the market to establish monopolies. 
Voluntary associations of consumers, such as consumers' co-operatives, 
" have, on the other hand, tended to originate among those who were in 
^,an economically weak position. They have hence often been able to ac- 
complish savings for their members, but only occasionally and limited to 
particular localities have they been able to establish an effective system 
of market regulation. 



9. Formal and Substantive Rationality of Economic 
Action 

The term "formal rationality of economic action" will be used to 
designate the extent of quantitative calculation or accounting which is 
technically possible and which is actually applied. The "substantive 
rationality," on the other hand, ts the degree to which the provisioning of 
gjven groups of persons (no matter how delimited) with goods is shaped 
by economically oriented social action under some criterion (past, 
present, or potential) of ultimate values (weriende Postulated, regardless 
of the nature of these ends. These may be of a great variety. 

1. The terminology suggested above is thought of merely as a means 
of securing greater consistency in the use of the word "rational" in this 
field. It is actually only a more precise form of the meanings which are 
continually recurring in the discussion of "nationalization" and of the 
economic calculus in money and in kind. 

2. A system of economic activity will be called "formally" rational 
according to the degree in which the provision for needs, which is es- 
sential to every rational economy, is capable of being expressed in nu- 
merical, calculable terms, and is so expressed. In the first instance, it is 
quite independent of the technical form these calculations take, particu- 
larly whether estimates are expressed in money or in kind, The concept 
is thus unambiguous, at least in the sense that expression in money 
term yields the highest degree of formal caiculabiiity. Naturally, even 
this is true only relatively, so long as other things are equal. 

3. The concept of "substantive rationality," on the other hand, is full 
of ambiguities. It conveys only one element common to all "substantive" 
analyses: namely, that they do not restrict themselves to note the purely 
formal and (relatively) unambiguous fact that action is based on "goal- 
oriented" rational calculation with the technically most adequate availa- 
ble methods, but apply certain criteria of ultimate ends, whether they be 
ethical, political, utilitarian, hedonistic, feudal (_standisch), egalitarian, 
or whatever, and measure the results of the economic action, however 
formally "rational" in the sense of correct calculation they may be, 
against these scales of "value rationality" or "substantive goal ration- 



8 6 SOCIOLOGICAL CATEGORIES OP ECONOMIC ACTION [ Cfc. II 

ality." There is an infinite number of possible value scales for this type 
of rationality, of which the socialist and communist standards consti- 
tute only one group. The latter, although by no means unambiguous 
in themselves, always involve elements of social justice and equality. 
Others are criteria of status distinctions, or of the capacity for power, 
especially of the war capacity, of a political -unit; all these and many 
others are of potential "substantive" significance. These points of view 
are, however, significant only as bases from which to judge the out- 
come of economic action. In addition and quite independently, it is 
possible to judge from an ethical, ascetic, or esthetic point of view the 
spirit of economic activity (Winsehaftsgemimtng) as well as the 
instruments of economic activity. All of these approaches may consider 
the "purely formal" rationality of calculation in monetary terms as of ■ 
quite secondary importance or even as fundamentally inimical to their 
respective ultimate ends, even before anything has been said about the 
consequences of the specifically modern calculating attitude. There is 
no question in this discussion of attempting value judgments in this 
field, but only of determining and delimiting what is to be called 
"formal." In this context the concept "substantive" is itself in a certain 
sense "formal;" that is, it is an abstract, generic concept. 



jo. The Rationality of Monetary Accounting. Manage- 
ment and Budgeting 

From a purely technical point of view, money is the most "perfect" 
means of economic calculation. That is, it is formally the most rational 
means of orienting economic activity. Calculation in terms of money, 
and not its actual use, is thus the specific means of rational, economic 
provision. So far as it is completely rational, money accounting has the 
following primary consequences: 

(O The valuation of all the means of achieving a productive purpose 
in terms of the present or expected market situation. This includes every- 
thing which is needed at present or is expected to be needed in the fu- 
ture^ everything actually in the actor's control, which he may come to 
control or may acquire by exchange from the control of others; everything 
lost, or in danger of damage or destruction; all types of utilities, of means 
of production, or any other sort of economic advantage. 

(2) The quantitative statement of (a) the expected advantages of 
every projected course of economic action and (b) the actual results of 
every completed action, in the form of an account comparing money costs 
and money returns and the estimated net profit to be gained from alterna- 
tives of action. 

(3) A periodical comparison of all the goods and other assets con- 



io ] - Rationality of Monetary Accounting 8 7 

trolled by an economic unit at a given time with those controlled at the 
beginning of a period, both in terms of money, 

(4) An ex-ante estimate and an ex-post verification of receipts and 
expenditures, either those in money itself-, orthose which can be va' sed 
in money, which the economic unit is likely to have available for its use 
during a period if it maintains the money value of the means at its dis- 
posal intact. 

(5) The orientation of consumption to these data by the utilization of 
the money available (on the basis of point 4) during the accounting period 
for the acquisition of the requisite utilities in accordance with the principle 
of marginal utility. 

The continual utilization and procurement of goods, whether through 
production or exchange, by an economic unit for purposes of its own 
consumption or to procure other goods for consumption, will be called 
"budgetary management" (Haushali) ." Where rationality exists, its 
basis for an individual or for a group economically oriented in this way is 
the "budget" (_Haushaltsplan), which states systematically in what way 
the needs expected for an accounting period— needs for utilities or for 
means of procurement to obtain them — can be covered by the anticipated 
income. 

The "income" of a "budgetary unit" is the total of goods; valued in 
money, which, as estimated according to the principle stated above in 
point (4), has been available during a previous period or on the availa- 
bility of which the unit is likely to be able to count on the basis of a 
rational estimate for the present or for a future period. The total esti- 
mated value of the goods at the disposal of a budgetary unit which are 
normally utilized over a longer period, either directly or as a source of 
income, will be called its "wealth" (Vermdgen'). 1 * The possibility of com- 
plete monetary budgeting for the budgetary unit is dependent on the pos- 
sibility that its income and wealth consist either in money or in goods 
which are at any time subject to exchange for money; that is, which are 
in the highest degree marketable. 

A rational type of management and budgeting of a budgetary unit is 
possible also where calculation is carried out in terms of physical units, 
as will be further discussed below. It is true that in that case there is no 
such thing as "wealth" capable of being expressed in a single sum of 
money, nor is there a single "income" in the same sense. Calculation is 
in terms of "holdings" of concrete goods and, where acquisition is limited 
to peaceful means, of concrete "receipts" from the expenditure of avail- 
able real goods and services, which will he administered with a view to 
attaining the optimum provision for the satisfaction of wants. If the 
wants are strictly given, this involves a comparatively simple problem 



8 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

from the technical point of view so long as the situation does not require 
a very precise estimate of the comparative utility fo be gained from the 
allocation of the available resources to each of a large number of very 
heterogeneous modes of use. If the situation is markedly different, even 

the simple self-sufficient household is faced with problems which are 
only to a very limited degree subject to a formally exact solution by cal- 
culation. The actual solution is usually found partly by the application 
of purely traditional standards, partly by making very rough estimates, 
which, however, may be quite adequate where both the wants concerned 
and the conditions of provision for them are well known and readily 
comparable. When the "holdings" consist in heterogpneous goods, as 
must be the case in the absence of exchange, a formally exact calculable 
comparison of the state of holdings at the beginning and the end of a 
period, or of the comparison of different possible ways of securing 
receipts, is possible only for categories oi goods which ars qualitatively 
identical. The typical result is that all availabie goods are treated as form- 
ing a totality of physical holdings, and certain quantities of goods are 
treated as available for consumption, so long as it appears that this will 
not in the long run diminish die available resources. But every change 
in the conditions of production — as, for instance, through a bad harvest 
— or any change in wants necessitates a new allocation, since it alters the 
scale of relative marginal utilities. Under conditions which are simple 
and adequately understood, this adaptation may be carried out without 
much difficulty. Otherwise, it is technically more difficult than if money 
terms could be used, in which case any change in the price situation in 
principle influences the satisfaction only of the wants which are marginal 
on the scale of relative urgency and are met with the last increments of 
money income. 

As accounting in kind becomes completely rational and is emanci- 
pated from tradition, the estimation of marginal utilities in terms of the 
relative urgency of wants encounters grave complications; whereas, if it 
were carried out in terms of monetary wealth and income, it would be 
relatively simple. In the latter case the question is merely a "marginal" 
one, namely whether to apply more labor or whether to satisfy or sacri- 
fice, as the case may be, one or more wants, rather than others. For when 
the problems of budgetary management are expressed in money terms, 
this is the form the "costs" take [opportunity cost]. But if calculations 
are in physical terms, it becomes necessary to take into account, besides 
the scale of urgency of the wants, also (i) the alternative modes of 
utilization of all means of production, including the entire amount of 
labor hitherto expended, which means different (according to the mode 
of utilization) and variable ratios between want satisfaction "and the ex- 
penditure of resources, and therefore, (2), requires a consideration of 



io ] Rationality c*f Monetary Accounting 8 9 

the volume and type of additional labor which the householder would 
have to expend to secure additional receipts and, (3), of the mode of 
utilization of the material expenditures if the goods to be procured can 
be of various types. It is one of the most important tasks of economic 
theory to analyse the various possible ways in which these evaluations 
can be rationally carried out. It is, en the other hand, a task for economic 
history to pursue the ways in which the budgetary management in 
physical terms has been actually worked out in the course of various 
historical epochs. In general, the following may be said: (1) that the 
degree of formal rationality has, generally speaking, fallen short of the 
level which was even empirically possible, to say nothing of the theoreti- 
cal maximum. As 3 matter of necessity, the calculations of money-less 
budgetary management have in the great majority of cases remained 
strongly bound to tradition. (2.) In the larger units of this type, precisely 
because an expansion and refinement of everyday wants has not taken 
place, there has been a tendency to employ surpluses for uses of a non- 
routine nature — above all, for artistic purposes. This is an important basis 
for the artistic, strongly stylized cultures of epochs with a "natural 
economy." 

1. The category of "wealth" includes more than physical goods. 
Rather, it covers all economic advantages over which the budgetary 
unit has an assured control, whether that control is due to custom, to 
the play of interests, to convention, or to law. The "good will" of a 
profit-making organization, whether it be a medical or legal practice, 
or a retail shop, belongs to the "wealth" of the owner if it is, for what- 
ever reason, relatively stable since, if it is legally appropriated, it can 
constitute "property" in the terms of the definition in ch. 1: 10 above. 

2. Monetary calculation can be found without the actual use of 
money or with its use limited to the settlement of balances which can- 
not be paid in kind in the goods being exchanged on both sides. 
Evidence of this is common in the Egyptian and Babylonian records. 
The use of money accounting as a measure for payments in kind is 

,. found in the permission in Hammurabi's Code and in provincial -. 
Roman and early Medieval law that a debtor may pay an amount 
due expressed in money "in whatever form he will be able" (in aw 
potnerit). The establishment of equivalents must in such cases have 
been carried out on the basis of traditional prices or of prices laid down 
by decree. 

3. Apart from this, the above discussion contains only common- 
places, which are introduced to facilitate the formulation of a precise 
concept of the rational budgetary unit as distinguished from that of a 
rational profit-making enterprise — the latter will be discussed presently. 
It is important to state explicitly that both can take rational forms. 
The satisfaction of needs; is not something more "primitive" than 
profit-seeking; "wealth" is not necessarily a more primitive category 



9 O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

than capital; "income," than profit. It is, however, true that historically 
the budgetary unit has been prior and has been the dominant form in 
most periods of the past. 

4. It is indifferent what unit is the bearer of a budgetary manage- 
ment economy. Both the budget of a state and the family budget of a 
wr ker fall under the same category. 

5. Empirically the administration of budgetary units and profit- 
making are not mutually exclusive alternatives. The business of a 
consumers* cooperative, for instance, is normally oriented to the eco- 
nomical provision for wants; but in the form of its activity, it is a 
"profit-making organization" without being oriented to profit as a 
substantive end. In the action of an individual, the two elements may 
be so intimately intertwined, and in the past have typically been so, • 
that only the concluding act — namely, the sale or the consumption 

of the product — can serve as a basis for interpreting the meaning of the 
action. This has been particularly true of small peasants. Exchange may 
well be a part of the process of budgetary management where it is a 
matter of acquiring consumption goods by exchange and of disposing 
of surpluses. On the other hand, the budgetary economy of a prince 
or a landed lord may include profit-making enterprises in the sense of 
the following discussion. This has been true on a large scale in earlier 
times. Whole industries have developed out of the heterocephalous 
and heteronomous auxiliary enterprises which seigneurial landowners, 
monasteries, princes, etc., have established to exploit the products of 
their lands and forests. AH sorts of profit- ma king enterprises today are 
part of the economy of such budgetary units as local authorities or even 
states. In these cases it is legitimate to include in the "income" of the 
budgetary units, if they are rationally administered, only the net profits 
of these enterprises. Conversely, it is possible for profit-making enter- , 
prises to establish various types of heteronomous budgetary units under 
their direction for such purposes as providing subsistence for slaves 
or wage workers — among them are "welfare" organizations, housing and 
eating facilities. Net profits in the sense of point CO of this section are 
money surpluses after the deduction of all money costs. 

6. It Has been possible here to give only the most elementary 
starting points for analysing the significance of economic calculations 
in kind for general social development. 



1 1 , The Concept and Types of Profit-Making. The Role 
of Capital 

"Profit-making" QLTwerhen)™ is activity which is oriented to oppor- 
tunities for seeking new powers of control over goods on a single oc- 
casion, repeatedly, or continuously. "Profit-making activity" is activity 
which is oriented at least in part to opportunitie 1 ; of profit-making. Profit- 



1 1 ] Concept and Types of Profit-Making. Capital 9 1 

making is "economic" if it is oriented to acquisition by peaceful methods 
It may be oriented to the exploitation of market situations. "Means of 
profit-making" (ErwethsmitteV) are those goods and other economic ad- 
vantages which are used in the interests of economic profit-making. "Ex- 
change for profit" is that which is oriented to market situations in order to 
increase control over goods rather than to secure means for consumption 
(budgetary exchange). "Business credit" is that credit which is extended 
or taken up as a means of increasing control over the requisites of profit- 
making activity. 

There is a form of monetary accounting which is peculiar to rational 
economic profit-making; namely, "capital accounting." Capital accounting 
is the valuation and verification of opportunities for profit and of the 
success of profit-making activity by means of a valuation of the total 
assets (goods and money) of the enterprise at the beginning of a profit- 
making venture, and the comparison of this with a similar valuation of 
the assets still present and newly acquired, at the end of the process; in 
the case of a profit-making organization operating continuously, the 
same ts done for an accounting period. In either case a balance is drawn 
between the initial and final states of the assets. "Capital" is the money 
value of the means of profit-making available to the enterprise at the 
balancing of the hooks; "profit" and correspondingly "loss," the differ- 
ence between the initial balance and that drawn at the conclusion of the 
period. "Capital risk" is the estimated probability of a loss in this 
balance. An economic "enterprise" (Unternehmen) is autonomous 
action capable of orientation to capital accounting. This orientation takes 
place by means of "calculation"; ex-ante calculation of the probable risks 
and chances of profit, ex-post calculation for the verification of the actual 
pro^t or loss resulting. "Profitability" means, in the rational case, one of 
two things: (1) the profit estimated as possible by ex-snte calcu tions, 
the attainment of which is made an objective of the entrepreneur's ac- 
tivity; or (2) that which the ex-post calculation shows actually to have 
been earned in a given period, and which is available for the consump- 
tion uses of the entrepreneur without prejudice to his chances of future 
profitability. In both cases it is usually expressed in ratios — today, per- 
centages^ — in relation to the capital of the initial balance. 

Enterprises based on capital accounting may be oriented to the ex- 
ploitation of opportunities of acquisition afforded by the market, or they 
may be oriented toward other chances of acquisition, such as those based 
on power relations, as in the case of tax farthing or the sale of offices. 

Each individual operation undertaken by a rational profit-making 
enterprise is oriented to estimated profitability by rneans of calculation. 
In the case of profit-making activities on the market, capital accounting 



9 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

requires: (i) that there exist, subject to estimate beforehand, adequately 
extensive and assured opportunities for sale of the goods which the en- 
terprise procures; that is, normally, a high degree of marketability; (2) 
that the means of carrying on the enterprise, such as the potential means 
of production and the services of labor, are also available in the market 
at costs which can be estimated with an adequate degree of certainty; 
and finally, (3) that the technical and legal conditions, to which the 
process from the acquisition of the means of production to final sale, 
including transport, manufacturing operations, storage, etc., is subjected, 
give rise to money costs which in principle are calculable. 

The extraordinary importance of the highest possible degree of cal- 
culability as the basis for efficient capital accounting will be noted time 
and again throughout the discussion of the sociological conditions of 
economic activity. It is far from the case that only economic factors are 
important to it. On the contrary, it will be shown that the most varied 
sorts of external and subjective barriers account for the fact that capital 
accounting has arisen as a basic form of economic calculation only in the 
Western World. 

As distinguished from the calculations appropriate to a budgetary 
unit, the capital accounting and calculations of the market entrepreneur 
are oriented not to marginal utility, but to profitability. To be sure, the 
probabilities of profit are in the last analysis dependent on the income of 
consumption units and, through this, on the marginal utility structure of 
. the disposable money incomes of the final consumers of consumption 
goods. As it is usually put, it depends on their "purchasing power" for 
the relevant commodities. But from a technical point of view, the ac- 
counting calculations of a profit-making enterprise and of a consumption 
unit differ as fundamentally as do the ends of want satisfaction and of 
profit-making which they serve. Fox purposes of economic theory, it is 
the marginal consumer who detetaimes the direction of production. In 
actual fact, given the actual distribution of power, this is only true in a 
limited sense for the modern situation. To a large degree, even though 
the consumer has to be in a position to buy, his wants are "awakened" 
and "directed" by the entrepreneur. 

In a market economy every form of rational calculation, especially of 
capital accounting, is oriented to expectations of prices and their changes 
as they are determined by the conflicts of interests in bargaining and 
competition and the resolution of these conflicts. In profitabiuty^account- 
ing this is made particularly clear in that system of bookleeping which 
is (up to now) the most highly developed one from a technical point 
of view, in the so-called double-entry bookkeeping. Through a system 
of individual accounts the fiction is here created that different depart- 



1 1 ] Concept and Types of Profit-Making. Capital 9 3 

merits within an enterprise, or individual accounts, conduct exchange 
operations with each other, thus permitting a check in the technically 
most perfect manner on the profitability of each individual step or 
measure. 

Capital accounting in its formally most rational shape thus presup- 
poses the battle of man -with man. And this in turn involves a further 
very specific condition. No economic system can directly translate sub- 
jective "feelings of need" into effective demand, that is, into demand 
which needs to be taken into account and satisfied through the produc- 
tion of goods. For whether or not a subjective want can be satisfied de- 
pends, on the one hand, on its place in the scale of relative urgency; on 
the other hand, on the goods which are estimated to be actually or 
potentially available for its satisfaction.- Satisfaction does not take place 
if the utilities needed for it are applied to other more urgent uses, or if 
they either cannot be procured at all, or only by such sacrifices of labor 
and goods that future wants, which are still, from a present point of view, 
adjudged more urgent, could not be satisfied. This is triie of consump- 
tion in every kind of economic system, including a comnfunist one. 

In an economy which makes use of capital accounting and which 
is thus characterized by the appropriation of the means cf production by 
individual units, that is by "property" (see ch. I, sec. 10), profitability • 
depends on the prices which the "consumers," according 10 the marginal 
utility of money in relation to their income, can and will bfiy. It is possi- 
ble to produce profitably only for those consumers who, m; these terms, 
have sufficient income. A need may fail to be satisfied not fcfely when an 
individual's own demand for other goods takes precedence, hut also when 
the greater purchasing power of others for all types of goods prevails. 
Thus the fact that the batde of man against man on the Tnarjiet is an 
essential condition for the existence of rational money— accounting further 
implies that the outcome of the economic process is decisively influenced 
by the ability of persons who are more plentifully supplied with money to 
outbid the others, and of those more favorably situated for production to 
underbid their rivals on the selling side. The latter ate particularly those 
well supplied with goods essential to production or with money. In par- 
ticular, rational money-accounting presupposes the existence of effective 
prices and not merely of fictitious prices conventionally employed for* 
technical accounting purposes. This, in turn, presupposes money func- 
tioning as an effective medium of exchange, which is in demand as such, 
not mere tokens used as purely technical accounting units. 14 Thus die 
orientation of action to money prices and to profit .has the following 
consequences: (1) that the differences in the distribution of money or 
marketable goods between the individual parties in the market is de 



94 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ck. 11 

cisive in determining the direction taken by the production of goods, so 
* far as it is carried on by profit-making enterprises, in that it is only demand 
made effective through the possession of purchasing power which is and 
can be satisfied- Further, (2) the question, what type of demand is to 
be satisfied by the production of goods, becomes in rum dependent on 
the profitability of production itself. Profitability is indeed formally a 
rational category, but for that very reason it is indifferent with respect to 
substantive postulates unless these can make themselves felt in the 
market in the form of sufficient purchasing power. 

"Capital goods," as distinguished from mere possessions or parts of 
wealth of a budgetary unit, are all such goods as are administered on the 
basis of capital accounting. "Capital interest," as distinct from various 
other possible kinds of interest on loans, is: CO what is estimated to be 
the minimum normal profitability of the use of material means of profit- 
making, CO the rate of interest at which profit-making enterprises can 
obtain money or capital goods. 

This exposition only repeats generally known things in a some- 
what more precise form. For the technical aspects of capital accounting, 
compare the standard textbooks of accountancy, which are, in part, 
excellent. E.g. those of Leitner, Sch&r, etc. 

1. The concept of capital has been defined strictly with reference 
to the individual private enterprise and in Accordance with private 
business-accounting practice, which was, indeed, the most convenient 
method for present purposes. This usage is much less in conflict with 
everyday speech than with the usage which in the past was frequently 
found in the social sciences and which has by no means been consistent- 
In order to test the usefulness of the present business-accounting term, 
which is now being increasingly employed in scientific writings again, 
it is necessary only to ask the following que«ions: (1) What does it 
mean when we say that a corporation has a "basic capital" (net worth) 
of one miiiior pounds? And CO> what when we.tay that capital is 
"written down"? What, (3), when corporation law prescribes what ob- 
jects may be "brought in" as capital and in what manner? The first 
statement means that only that part of a surplus of assets over liabilities, 
as shown on the balance-sheet after proper inventory control and veri- 
fication, which exceeds one million pounds can he accounted as 
"profit" and distributed to the share-holders to do with as they please 
(or, in the case of a oneman enterprise, that only this excess can be 
consumed in the household). The second statement concerns a situa- 
tion where there have been heavy business losses, and means that the 
distribution of profit need not be postponed until perhaps after many 
years a surplus exceeding one million pounds has again been ac- 
cumulated, but that the distribution of "profits" may begin at a lower 
surplus. But in order to do this, it is necessary to "write down" the 
capital, and this is the purpose of the operation. Finally, the purpose 



1 1 ] Concept and Types of Profit-Making. Capital 9 5 

of prescriptions as to how basic capital (net worth, or ownership) can 
be "covered" through the bringing into the company of material assets, 
and how it may be "written up" or "written down," is to give creditors 
and purchasers of shares the guarantee that the distribution of profits 
will be carried cut "correctly" in accordance with the rules of rational 
business accounting, i.e., in such a way that Ca) long-run profitability 
is maintained and, (b), that the security of creditors is not impaired. 
The rules about "bringing in" are all concerned with the admissability 
and valuation of objects as paid-in capital. (4) What does it mean when 
we say that as ?. result of unprofitability capital "seeks different invest- 
ments"? Either we are talking about "wealth," for "investment" (A«- 
legen) is a category of the administration of wealth, not of profit- 
making enterprise. Or else, more rarely, it may mean that real capital 
goods on the one hand have ceased to be such by being sold, for in- 
stance as scrap or junk, and on the other have regained that quality in 
other uses. (5) What is meant when we speak of the "power of capital"? 
We mean that the possessors of control over the means of production 
and over economic advantages which can be used as capital goods in a 
profit-making enterprise enjoy, by virtue of this control and of the orien- 
tation of economic action to the principles of capitalistic business cal- 
culation, a specific position of power in relation to others. 

In the earliest beginnings of rational profit-making activity capital 
appears, though not under this name, and only as a sum of money used 
in accounting. Thus in the commenda relationship various types of 
goods were entrusted to a travelling merchant to sell in a foreign market 
and at times for the purchase of other goods wanted for sale at home. 
The profit or loss was then divided in a particular proportion between 
the travelling merchant and the entrepreneur who had advanced the 
capital. For for this to take place it was necessary to value the goods in 
money; that is, to strike balances at the beginning and the conclusion 
of the venture. The "capital" of the comittenda or the societas maris was 
simply this money valuation, which served only the purpose of settling 
accounts between the parties and no other. 

What do we mean by the term "capital market"? We mean that 
certain "goods," including in particular money, are in demand in order 
to be used as capital goods, and that there exist profit-making enter- 
prises, especially certain types of "banks," which derive their profit from 
the business of providing these goods. In the case of so-called "loan capi- 
tal," which consists in handing over money against a promise to return 
the same amount at a later time with or without the addition of interest, 
the term "capital" will be used only if lending is the object of a profit- 
making enterprise. Otherwise, the term "money loans" will be used. 
Everyday speech tends to talk about "capital" whenever "interest" is 
paid, because the latter is usually expressed as a percentage of the basic 
sum; only because of this calculatory function is the amount of a loan or 
a deposit called a "capital." It is true, of course, that this was the origin 
of the term: cafitale was the principal sum of a loan; the term is said, 



9 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ck. II 

though it cannot he proved, to derive from the heads counted in a loan 
of cattle. But this is irrelevant. Even in very early times a loan of real 
goods was reckoned in money terms, on which basic interest was then 
calculated, so that already here capital goods and capital accounting are 
typically related, as has been true in later times, In the case of an ordi- 
nary loan, which is made nmply as a phase in the administration of 
budgetary wealth and so far as it is employed for the needs of a 
budgetary unit, the term "loan capital" will not be used. The same, of 
course, applies to the recipient of the loari. 

The concept of an "enterprise" is in accord with the ordinary usage, 
except for the fact that the orientation to capital accounting, which is 
usually taken for granted, is made explicit. This is done in order to 
emphasize that not every case of search for profit as such constitutes an 
"enterprise," but only when it is capable of orientation to capital ac- 
counting, regardless of whether it is on a large or a small scale. At the 
same time it is indifferent whether this capital accounting is in fact 
rationally carried out according to rational principles. Similarly the terms 
"profit" and "loss" will be used only as applying to enterprises oriented 
to capital accounting. The money earned without the use of capital by 
such persons as authors, physicians, lawyers, civil servants, professors, 
clerks, technicians, or workers, naturally is also "acquisition" (.Erwerh*), 
but shall here not be called "profit." Even everyday usage would not call 
it profit. "Profitability" is a concept which is applicable to every dis- 
crete act which can be individually evaluated in terms of business 
accounting technique with respect to profit and loss, such as the employ- 
ment of a particular worker, me purchase of a new machine, the deter- 
mination ot rest periods in the working day, etc. 

It is not expedient in defining the concept of interest cm capital to 
start with contracted Interest returns on any type of loan. If somebody 
helps out a peasant by giving him seed and demands an increment on 
its return, or if the same is done in the case of money loaned to a house- 
hold to be returned with interest, we would hardly want to call this a 
"capitalistic" process. It is possible, where action is rational, for the 
lender to secure an additional amount because his creditor is in a posi- 
tion to expect benefits from the use of the loan greater than the amount 
of the interest he pays; when, that is, the situation is seen in terms of 
what it would be if he had to do without the loan. Similarly, the lender, 
being aware of the situation, is in a position to exploit it, in that for him 
the marginal utility of his present control over the goods he lends is 
exceeded by the marginal utility at the relevant future time of the 
repayment with the addition of the interest. These are essentially cate- 
gories of the administration of budgetary units and their wealth, not of 
capital accounting. Even a person who secures an emergency loan for 
his urgent personal needs from a "Shylock" is not for purposes of the 
present discussion said to be paying interest on capital, nor does the 
lender receive such interest It is rather a case of return for the loan. 
The person who makes a business of lending charges himself interest on 



1 1 ] Concept and Types of Profit-Making. Capital 9 7 

his business capital if he acts rationally, and must consider that he has suf- 
fered a "loss" if the returns from loans do not cover this rate of profita- 
bility. This interest we will consider "interest on capital"; the former is 
simply "interest." Thus for the present terminological purposes, interest 
on capital is always that which is calculated on capital, not that which 
is a payment for capital. It is always oriented to money valuations, and 
thus to the sociological fact that disposal over profit-making means, 
whether through the market or not, is in private hands; that is, appro- 
priated. Without this, capital accounting, and thus calculation of interest, 
would be unthinkable. 

In a rational profit-making enterprise, the interest, which is charged 
on the books to a capital sum, is the minimum of profitability. It is in 
terms of whether or not this minimum is reached that a judgment of 
the advisability of this particular mode of use of capital goods is arrived 
at. Advisability in this context is naturally conceived from the point of 
view of profitability. The rate for this minimum profitability is, it is well 
known, only approximately that which it is possible to obtain by giving 
credit on the capital market at the time. But nevertheless, the existence 
of the capital market is the reason why calculations are made on this 
basis, just as the existence of market exchange is the basis for making 
entries against the different accounts. It is one of the fundamental phe- 
nomena of a capitalistic economy that entrepreneurs are permanently 
willing to pay interest for loan capital. This phenomenon can only be 
explained by understanding bow it is that the average entrepreneur may 
hope in the long run to earn a profit, or that entrepreneurs on the 
average in fact do earn it, over and above what they have to pay as 
interest on loan capital — that is, under what conditions it is, on the 
average, rational to exchange 100 at the present against 100 plus X in 
the future. 

Economic theory approaches this problem in terms of the relative 
marginal utilities of goods under present and under future control. So 
far, so good. But the sociologist would then like to know in what human 
actions this supposed relation is reflected in such a manner that the 
actors can take the consequences- of this differential valuation [of pres- 
ent and future goods], in the form of an "interest rate," as a criterion 
for their own operations. For it is by no means obvious that this should 
happen at all times and places. It does indeed happen, as we know, in 
profit-making economic units. But here the primary cause is the eco- 
nomic power distribution QMachiiage) between profit-making enter- 
prises and budgetary units (households), both those consuming the 
goods offered and those offering certain means of production (mainly 
labor). Profit-making enterprises will be founded and operated continu- 
ously (capitaKstically) only if it is expected ^that the minimum rate of 
interest on capital can be earned. Economic theory — which could, bow- 
ever, also be developed along very different lines — might then very well 
say that this exploitation of the power distribution (which itself is a 
consequence of the institution or private property in goods and the 



9 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. 11 

means of production) permits it only to this particular class of economic 
actors to conduct their operations in accordance with the "interest" cri- 
terion. 

2. The administration of budgetary "wealth" and profit-making en- 
terprises may he outwardly so similar as to appear identical. They are in 
fact in the analysis only distinguishable in terms of the difference in 
meaningful orientation of the corresponding economic activities. In the 
one case, it is oriented to maintaining and improving profitability and 
the market position of the enterprise; in the other, to the security and 
increase of wealth and income. It is, however, by no means necessary 
that this fundamental orientation should always, in a concrete case, be 
turned exclusively in one direction or the other; sometimes, indeed, this is - 
impossible. In cases where the private wealth of an entrepreneur is identi- 
cal with this business control over the means of production of his firm 
and his private income is identical with the profit of the business, the 
two things seem to go entirely hand in hand. But all manner of personal 
considerations may in such a case cause the entrepreneur to enter upon 
business policies which, in terms of the rationality of the conduct of 
enterprise, are irrational. Yet very generally private wealth and control 
of the business are not identical. Furthermore, such factors as personal 
indebtedness of the proprietor, his personal demand for a higher present 
income, division of an inheritance, and the like, often exert what is, in 
terms of business considerations, a highly irrational influence on the 
business. Such situations often lead to measures intended to eliminate 
these influences altogether, as in the incorporation of family businesses. 

The tendency to separate the sphere of private affairs from the busi- 
ness is thus not fortuitous. It is a consequence of the fact that, from the 
point of view of business interest, the interest in maintaining the private 
wealth of the owner is often irrational, as is his interest in income 
receipts at any given time from the point of view of the profitability of 
the enterprise. Considerations relevant to the profitability of a business 
are also not identical with those governing the private interests of per- 
sons who are related to it as workers or as consumers. Conversely, the 
interests growing out of the private fortunes and income of persons or 
organizations having powers of control over an enterprise do not neces- 
sarily lie in the same direction as the long-run considerations of optimiz- 
ing its profitability and its market power position. This is definitely, 
even especially, also true when a profit-making enterprise is controlled 
by a producers' co-operative association. The objective interests of 
rational management of a business enterprise and the persona! interest 
of the individuals who control it are by no means identical and are 
often opposed. This fact implies the separation as a matter of principle 
of the budgetary unit and the enterprise, even where both, with respect 
to powers of control and the objects controlled, are identical. 

The sharp distinction between the budgetary unit and the profit- 
making enterprise should also be clearly brought out in the terminology. 
The purchase of securities on the part of a private investor who wishes 



i z ] Concept and Types of Profit-Making. Capital 9 9 

to consume the proceeds is not a "capital- investment," but a "wealth' 
investment." A money loan made by a private individual for obtaining 
the interest is, when regarded from the standpoint of die lender, en- 
tirely different from one made by a bank to the same borrower. On the 
other hand, a loan made to a consumer and one to an entrepreneur for 
business purposes are quite different from the point of view of the bor- 
rower. The bant is investing capital and the entrepreneur is borrowing 
capital; but in the lirst case, it may be for the borrower a matter simply 
of borrowing fo* purposes of budgetary management; in the second it 
may be, for the lender, a case of investment of private wealth. This dis- 
tinction between private -wealth and capital, between the budgetary unit 
and the profit- nuking enterprise, is of far-reaching importance. In par- 
ticular, without it it is impossible to understand the economic develop- 
ment of the ancient world and the limitations on the development of the 
capitalism of those times. (The well-known articles of Rodbertus are, in 
spite of their errors and incompleteness, still important in this context, 
but should be supplemented by the excellent discussion of Karl 
Biicher.) 18 

3. By no means all profit-making enterprises with capital accounting 
1 are doubly oriented to the market in that they botb purchase means of 

production on the market and sell their product or-'iinal services there. 
Tax farming and all sorts of financial operations 'Have been carried on 
with capital accounting, but without selling any products. The very 
important consequences of this will be discussed later. It is a case of 
capitalistic profit-making which is not oriented to the market, 

4. For reasons of ' convenience, acquisitive activity (Erwerhstatigkeit) 
and profit-making enterprise (TLrwerbshetTieh*) have been distinguished. 
Anyone is engaged in acquisitive activity so far as he seeks, among other 
things, in given ways to acquire goods -money or others — which he 
does not yet possess. This includes the civil servant and the worker, no 
less than the entrepreneur. 'But the term "profit- making enterprise" will 
be confined to those types of acquisitive activity which are continually 
oriented to market advantages, using goods as means to secure profit, 
either (a) through the production and sale of goods in demand, or (b) 
through the offer of services in demand in exchange for money, be it 
through free exchange or through the exploitation of appropriated ad- 
vantages, as has been pointed out above under (3). The person who is 
a mere rentier or investor of private wealth is, in the present terminol- 
ogy, not engaged in profit-making, no matter how rationally he adminis- 
ters his resources. 

5. It goes without saying that in terms of economic theory the direc- 
tion in which goods can be profitably produced by profit-making enter- 
prises is determined by the marginal utilities for the last consumers in 
conjunction with the tatter's incomes. But from a sociological point of 
view it should not be forgotten that, to a large extent, in a capitalistic 
economy (a) new wants are created and others allowed to disappear and 
(b) capitalistic enterprises, through tbeir aggressive advertising policies, 



I O O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

exercise an important influence on the demand functions of consumers. 
Indeed, these are essential traits of a capitalistic economy. It is true that 
this applies primarily to wants which are not of the highest degree of 
necessity, hut even types of food provision and housing are importantly 
determined by the producers in a capitalistic economy. 



12. Calculations in Kind 

Calculations in kind can occur in the most varied form. We speak of 
a "money economy," meaning an economy where the use of money is 
typical and where action is typically oriented to market situations in 
terms of money prices. The term "natural economy" CNatundwinschafi), 
on the other hand, means an economy where money is not used. The 
different economic systems known to history can be classified according 
to the degree to which they approximate the one or the other. 

The concept "natural economy" is not, however, very definite, since 
it can cover systems with widely varying structures. It may mean (a) an 
economy where no exchange at all takes place or (b) one where exchange 
is only by barter, and thus money is not used as a medium of exchange. 
The first type may be an individual economic unit organized on a com- 
pletely communistic basis, or with some determinate distribution of 
rights of participation. In both cases, there would be a complete lack of 
autonomy or autocephaly of the component parts. This may l>e called a 
"closed household economy." Or, secondly, it may be a combination of 
otherwise autonomous and autocephalous individual units, all of which, 
however, are obligated to make contributions in kind to a central or- 
ganization which exists for the exercise of authority or as a communal 
institution. This is an "economy based on payments in kind" Coikos 
economy, "Iiturgically" organized political group). In both cases, so far 
as the pure type is conformed to, there is only calculation in kind. 

In the second case, type (b), where exchange is involved, there may 
be natural economies where exchange is only by barter without either 
the use of money or calculation in money terms. Or there may be econ- 
omies where there is exchange in kind, but where calculation is oc- 
casionally or even typically carried out in money terms. This was typical 
of the Orient in ancient times and has been common everywhere. 

For the purposes of analysing calculation in kind, it is only the cases 
of type (a) which are of interest, where the unit is either completely 
self-sufficient, or the liturgies- are produced in rationally organized per- 
manent units, such as would be inevitable in attempting to employ 
modern technology in a completely "socialized" economy. 



1 2 ] _ Calculations in Kind i o i 

Calculation in kind is in its essence oriented to consumption, the 

satisfaction of wants. It is, of course, quite possible to have something 
analogous to profit-making on this basis. This may occur (a) in that, 
without resort to exchange, available material means of production and 
labor are systematically applied to the production and transportation of 
goods on the basis of calculations, according to which the state of want 
satisfaction thus attained is compared with the state which would exist 
without these measures or if the resources were Used in another way, and 
thus a judgment as to the most advantageous procedure is arrived at. Or 
Cb) in a barter economy, goods may be disposed of and acquired by ex- 
change,-perhap in systematically repeated barters, though strictly with- 
' out the use of money. Such action would be systematically oriented to 
securing a supply of goods which, as compared with the state which 
would exist without these measures, is judged to establish a more ade- 
quate provision for the needs of the unit. It is, in such cases, only when 
quantities of goods which are qualitatively similar are compared that it 
is possible to use numerical terms unambiguously and without a wholly 
subjective valuation. It is possible, of course, to set up a system of in- 
kind wages consisting of typical bundles of consumer goods- (Koksww- 
Defutate), such as were the in-kind salaries and benefices particularly 
of tiis ancient Orient (where they even became objects of exchange 
transactions, similar to our government bonds). In the case of certain 
very homogenous commodities, such as the grain of the Nile valley, a 
system of storage and .trade purely in terms of paper claims to certain 
quantities of the commodity was of course technically just as possible 
as it is with silver bars under the conditions of fcawco-currencies." What 
is more important, it is in that case also possible to express the technical 
efficiency of a process of production in numerical terms and thereby 
compare it with other types of technical processes. This may be done, if 
the final product is the same, by comparing the relative requirements of 
different processes in both the quantity and the type of means of produc- 
tion. Or, where the means of production are the same, the different 
products which result from different production processes may be com- 
pared. It is often, ihough by no means always, possible in this way to 
secure numerical comparisons for the purposes of important, though sec- 
torally restricted, problems. But the more difficult problems of calcula- 
^ tion begin when it becomes a question of comparing different kinds of 
means of production, their different possible modes of use, and quali- 
tatively different final products. 

Every capitalistic enterprise is, to be sure, continually concerned with 
calculations in kind. For instance, given a certain type of loom and a 
certain quality of yarn, it is a question of ascertaining, given certain 



I O 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

other relevant data such as the efficiency of machines, the humidity of 
the air, the rate of consumption of coal, lubricating oil, etc., what will be 
the product per hour per worker and thus the amount of the product 
which is attributable to any individual worker for each unit of time. For 
industries with typical waste products or by-products, this can be de- 
termined without any use of money accounting and is in fact so de- 
termined. Similarly, under given conditions, it is possible to work out, in 
technical terms without the use of money, the normally expected annual 
consumption of raw materials by the enterprise according to its technical 
production capacity, the depreciation period for buildings and machinery, 
the typical loss by spoiling or other forms of waste- But the comparison . 
of different kinds of processes of production, with the use of different 
kinds of raw materials and different ways of treating them, is carried out 
today by making a calculation of comparative profitability in terms of 
money costs. For accounting in kind, on the other hand, there are 
formidable problems involved here which are incapable of objective solu- 
tion. Though it does not at first sight seem to be necessary, a modern 
enterprise tends to employ money terms in its capital calculations even 
where such difficulties do not arise. But this is not entirely fortuitous. In 
the case of depreciation write-offs, for example, money accounting is used 
because this is the method of assuring the conditions of future produc- 
tivity of the business which combines the greatest degree of certainty 
with the greatest flexibility in relation to changing circumstances; with 
any storing of real stocks of materials or any other mode of provision in 
'kind such flexibility would be irrationally and severely impeded. It is 
difficult to see, without money accounting, how "reserves" could be built 
up without being specified in detail. Further, an enterprise is 'always 
faced with the question as to whether any of its parts is operating ir- 
rationally: that is, unprofitably, and if so, why. It is a question of de- 
termining which components of its real physical expenditures (that is, of 
the "costs" in terms of capital accounting) could be saved and, above 
all, could more rationally be used elsewhere. This can be determined 
with relative ease in an ex-post calculation of the relation between 
accounting "costs" and "receipts" in money terms, the former including 
in particular the interest charge allocated to that account. But it is ex- 
ceedingly difficult to do this entirely in terms of an in-kind calculation, 
and indeed it can be accomplished at all only in very simple cases. This, 
one may believe, is not a matter of circumstances which could be over- 
come by technical improvements in the methods of calculation, but of 
fundamental limitations, which make really exact accounting in terms 
of calculations in kind impossible in principle. 

It is true this might be disputed, though naturally not with arguments 



12 ] Calculations in Kind i o 3 

drawn from the Taylor system and from the possibility of achieving im- 
provements in efficiency by employing a system of bonus points without 
the use of money. The essential question is that of how it is possible £0 
discover at what -point in the organization it would be profitable to em- 
ploy such, measures because there existed at that point certain elements 
of irrationality. It is in finding out these points that accounting in kind 
encounters difficulties which an ex-post calculation in money terms does 
not have to contend with. The fundamental limitations of accounting in 
kind as the basis of calculation in enterprises— of a type which would 
include the bete rocephalous and heteronomous units of production in a 
planned economy — are to be found in the problem of imputation, which 
in such a system cannot take the simple form of an ex-post calculation of 
profit or loss on the books, but rather that very controversial form which 
it has in the theory of marginal utility. In order to make possible a ra- 
tional utilization of the means of production, a system of in-kind account- 
ing would have to determine "value"-indicators of some kind for the 
individual capital goods which could take over the role of the "prices" 
- used in book valuation in modern business accounting. But it is not at all 
clear how such indicators could be established and, in particular, verified; 
whether, for instance, they should vary from one production unit to the 
next (on the basis of economic location), or whether they should be 
uniform for the entire economy, on the basis of "social utility," that is, of 
(present and future") consumption requirements? 

Nothing is gained by assuming that, if only the problem of a non- 
monetary economy were seriously enough attacked, a suitable accounting 
method would be discovered or invented. The problem is fundamental 
to any kind of complete socialization. We cannot speak of a rational 
"planned economy" so long as in this decisive respect we have no instru- 
ment for elaborating a rational "plan," 

The difficulties of accounting in kind become more marked when the 
question is considered of whether, from the point of view of efficiently 
satisfying the wants of a given group of persons, it is rational to locate a 
certain enterprise with a given productive function at one or an alterna- 
tive site. The same difficulties arise if we want to determine whether a 
given economic unit, from the point of view of the most rational use of 
the labor and raw materials available to ft, would do better to obtain cer- 
tain products by exchange with other units or by producing them itself. 
It is true that the criteria for the location of industries consist of "natural!' 
considerations and its simplest data are capable of formulation in non- 
monetary terms. (On this' point, see Alfred Weber in the Grundriss der 
Sozialokonomik, Part IV [English ed.: The Theory of Location, trsl. 
C. J. Friedrich, Chicago 1929]). Nevertheless, the concrete determina- 



104 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ol. II 

tidn of whether, according to the relevant circumstances of its particular 

location, a production unit with a given set of output possibilities or one 
with a different set would be rational, is in terms of calculation in kind 
capable of solution only in terms of very crude estimates, apart from the 
few cases where the solution is given by some natural peculiarity, such 
as a unique source of a raw material. But in spite of the numerous un- 
knowns which may be present, the problem in money terms is always 
capable of a determinate solution in principle. 

Finally, there is the independent problem of the comparative im- 
portance of the satisfaction of different wants, provision for which is, 
under the given conditions, equally feasible! In the last analysis, this 
problem is, in at least some of its implications, involved in every par- 
ticular case of^the calculations of a productive unit. Under conditions of 
money accounting, it has a decisive influence on profitability and thereby 
on the direction of production of profit-making enterprises. But where 
calculation is only in kind, it is in principle soluble only in one of two 
ways: by adherence to tradition or by an arbitary dictatorial regulation 
which, on whatever basis, lays down the pattern of consumption and 
enforces obedience. Even when that is resorted to, it still remains a fact 
that the problem of imputation of the part contributed to the total output 
of an economic unit by the different factors of production and by dif- 
ferent executive decisions is not capable of the kind of solution which is 
at present attained by calculations of profitability in terms of money. It 
is precisely the process of provision for mass demand by mass production 
so lypical of the present day which would encounter the greatest diffi- 
culties. 

i . The problems of accounting in kind have been raised in a par- 
ticularly penetrating form by Dr. Otto Neuratfi in his numerous works 20 
apropos of the tendencies to "socialization" in recent years. The prcfaiem 
is a central one in any discussion of complete socialization; that is, that 
which would lead to the disappearance of effective prices. It may, how- 
ever, be explicitly noted that the fact that it is incapable of rational solu- 
tion serves only to point out some of the "costs," including economic 
ones, which would have to be incurred for the sake. of enacting this type 
of socialism; however, this does not touch the question of the justifica- 
tion of such a program, so far as it does not rest on technical considera- 
tions, but, like most such movements, on ethical postulates or other forms 
of absolute value. A "refutation" of these is beyond the scope of any 
science. From a purely technical point of view, however, the possibility 
must be considered that the maintenance of a certain density of popu- 
lation within a given area may be possible only on the basis of accurate 
calculation- Insofar as this is true, a limit to the possible degree of lo- 
cialization would be set by the necessity of maintaining a system of 
effective prices. That cannot, however, be considered here. It miky be 



iz] Calculations in Kind i o 5 

noted, though, that the distinction between "socialism" and "social re- 
form," if there is any such, should be made in these terms. 

2. It is naturally entirely'correct that mere money accounts, whether 
they refer to single enterprises, to any number of them, or to all enter- 
prises — indeed, even the most complete statistical information about the 
movement of goods in money terms — tell us nothing whatever about the 
nature of the real provision of a given group with what it needs; 
namely, real articles of consumption. Furthermore, the much discussed 
estimates of "national wealth" in money terms are only to be taken seri- 
ously so far as they serve fiscal en^.s; that is, as they determine taxable 
weakh. This stricture does not £pply, of course, in any similar degree 
to income statistics in money terms, provided the prices of goods in 
money are known. But even then there is no possibility of checking real 
welfare in terms of substantive rationality. It is further true, as has been 
convincingly shown for the case of extensive farming in the Roman 
campcgna by Sismondi and Sombart, 21 that satisfactory profitability, 
which in the camfagna existed for all participants, in numerous cases 
has nothing to do with an optimum use of the available productive re- 
sources for the provision of consumers' goods for a given population. 
The mode of appropriation, especially that of land (this much must be 
conceded to Franz Oppenheimer), 22 leads to a system of claims to rent 
and earnings of various kinds which may well obstruct permanently the 
development of a technical optimum in the exploitation of productive 
resources. This is, however, very far from being a peculiarity of capital- 
istic economies. In particular, the much-discussed limitation of produc- 
tion in the interest of profitability was very highly developed in the 
economy of the Middle Ages, and the modern lahor movement is ac- 
quiring a position of power which may lead to similar consequences. But 
there is no doubt that this phenomenon exists in the modem capitalistic 
economy. 

The existence of statistics (or estimates) of money Sows has not, as 
some writers have tended to give the impression, hindered the develop- 
ment of statistics of physical quantities. This is true, however much fault 
we may find with the available statistics when measured by ideal stand- 
ards. Probably more than nine-tenths of economic statistics are not in 
terms of money, but of physical quantities. 

The work of a whole generation of economists has been concentrated 
almost entirely on a critique of the orientation of economic action to 
profitability with respect to its effects on the provision of the population 
with real goods. All the work of the so-called "socialists of the lectern" 
(Kathedersozialisten) was, in the last analysis, quite consciously con- 
cerned with this. They have, however, employed as a standard of judg- 
ment a mode of social reform oriented to social welfare, implving (in ■ 
contrast to a moneyless economy) the continued existence of effective 
prices, rather than full socialization, as the only solution possible either 
at the present or at any time in an economy at the stage of mass produc- 
tion. It is, of course, quite possible to consider this merely a half- 
measure, but it is not in itself a nonsensical attitude. It is true that the 
problems of a non-monetary economy, and especially of the possibility 



I O 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION f Ck. II 

of rational action in terms of calculations in kind, have not received 
much attention. Indeed most of the attention they have received has 
been historical and not concerned with present problems. But the World 
War, like* every war in history, has brought these problems emphati- 
cally to the fore in the form of the problems of war economy and the 
post-war adjustment. It is, indeed, one of the merits of Otto Neurath 
to have produced an analysis of just these problems, which, however 
much it is open to criticism both in principle and in detail, was one of 
the first and was very penetrating. That "the profession" has taken little 
notice of his work is not surprising because until now he has given us 
only stimulating suggestions, which are, however, so very broad that it 
is difficult to use them as a basis of intensive analysis. The problem only 
begins at the point where his public pronouncements up to date have 
left off. 

3. It is only with the greatest caution that the results and methods of 
war economy can be used as a basis for criticizing the substantive ration- 
ality of forms of economic organization. In wartime the Wiole economy 
is oriented to what is in principle a single clear goal, and the authorities 
are in a position to make use of powers which would generally not be 
tolerated in peace except in cases where the subjects are "slaves" of an 
authoritarian state. Furthermore, it is an economy with an inherent atti- 
tude of "going for broke": the overwhelming urgency of the immediate 
end overshadows almost all concern for the post-war economy. Only on 
the engineering level does preciseness of calculations exist, but economic 
constraints on the consumption, especially of labor and of all materials 
not directly threatened with exhaustion, are only of the roughest nature. 
Hence calculation has predominantly, though not exclusively, a techni- 
cal character. So far as it has a genuinely economic character — that is, so 
far as it takes account of alternative ends and not only of means for a given 
end— it is restricted to what is, from the standpoint of careful monetary 
calculation, a relatively primitive ievel of calculation on the marginal 
utility principle. In type this belongs to the class of budgetary calculations, 
and it is not meant to guarantee long-run rationality for the chosen alloca- 
tion of labor and the means of production. Hence, however illuminating 
the experience of war-time and post-war adjustments is for the analysis of 
the possible range of variation of economic forms, it is unwise to draw con- 
clusions from the type of in-kind accounting associated with it for its suit- 
ability in a peacetime economy with its long-run concerns. 

It may be freelv conceded: (O That it is necessary also in money 
accounting to make arbitrary assumptions in connection with means of 
production which have no market price. This is particularly common in 
the case of agricultural accounting; (2) that to a less extent something 
similar is true of the allocation of overhead costs among the different 
branches of a complicated enterprise; (3) that the formation of cartel 
agreements, no matter how rational their basis in relation to the market 
situation may be, immediately diminishes the stimulus to accurate cal- 
culation on the basis of capital accounting, because calculation declines 
in the absence of an enforced objective need for it. If calculation were 
in land, however, the situation described under (1) would be universal; 



12 ] Calculations in Kind 107 

any type of accurate allocation of overhead costs, which, however 
roughly, is now somehow achieved in money terms, would become im- 
possible; and, finally, every stimulus to exact calculation would be elimi- 
nated and would have to be created anew by artificial means, the effec- 
tiveness of which would be questionable. 

It has been suggested that the huge clerical staff of the private sector 
of the economy, which is actually to a large extent concerned with cal- 
culations, should be turned into a universal Statistical Office which 
would have the function of replacing the monetary business accounting 
of the present system with a statistical accounting in kind. This idea not 
only fails to take account of the fundamentally different motives under- 
lying "statistics" and "business accounting," it also fjils to distinguish 
their fundamentally different functions. They differ just like the bureau- 
crat differs from the entrepreneur, 

4. Both calculation in kind and in money are rational techniques. 
They do not, however, by any means exhaust die totality of economic 
action. There also exist types of action which, though actually oriented 
to economic considerations, do not know calculation. Economic action 
may be traditionally oriented or may be affectually determined. In its 
more primitive aspects, the search for food on the part of human beings 
' is closely related to that of animals, dominated as the latter is by in- 
stinct. Economically oriented action dominated by a religious faith, by 
war-like passions, or by attitudes of personal loyalty and similar modes 
of orientation, is likely to have a very low level of rational calculation, 
even though the motives are fully self-conscious. Haggling is excluded 
"between brothers," whether they be brothers in kinship, in a guild, or 
in a religious group. It is not usual to be calculating within a family, a 
group of comrades, or of disciples. At most, in cases -of necessity, a rough 
sort of rationing is resorted to, which is a very modest beginning of cal- 
culation. In Part Two, ch. IV, the process by which calculation gradually 
penetrates into the earlier form of family communism will be taken u^ 
Everywhere it has been money which was the propagator of calculation. 
This explains the fact that calculation in kind has remained on an even 
lower technical level than the actual nature of its problems might have 
necessitated; hence in this respect Otto Neurath appears to be right. 

During the printing of this work an essay by Ludwig von Mises 
dealing with these problems came out. See his "Die Wirtschaftsrech- 
nung im sozialistischen Gemeinwesen," Arckiv fur Soziahmssenschaft, 
vol. 47(1920).** 



13. Substantive Conditions of Formal Rationality in a , 
Money Economy 

It is thus clear that the formal rationality of money calculation is 
dependent on certain quite specific substantive conditions. Those which 
are of a particular sociological importance for present purposes are the 



I O 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

following: (O Market struggle of economic units which are at least rela- 
tively autonomous. Money prices are the product of conflicts of interest 
and of compromises; they thus result from power constellations. Money 
is not a mere "voucher for unspecified utilities," which could be altered 
at will without any fundamental effect on the character of the price sys- 
tem as a struggle of man against man. "Money" is, rather, primarily a 
weapon in this struggle, and prices are expressions of the struggle; they 
are instruments of calculation only as estimated quantifications of relative 
chances in this struggle of interests. (2) Money accounting attains the 
highest level of rationality, as an instrument of calculatory orientation of 
economic action, when it is applied in the form of capital accounting. ^ 
The substantive precondition here is a thorough market freedom, that is, 
the absence of monopolies, both of the imposed and economically irra- 
tional and of the voluntary and economically rational (i.e., market- 
oriented) varieties. The competitive struggle for customers, which is 
associated with this state, gives rise to a great volume of expenditures, 
especially with regard to the organization of sales and advertising, which 
in the absence of competition — in a planned economy or under complete 
monopolization — would not have to be incurred. Strict capital account- 
ing is further associated with the social phenomena of "shop discipline" 
and appropriation of the means of production, and that means: with the 
existence of a "system of domination" (Hemchaftsverhiiltniss). (3) It is 
not "demand" (wants) as such, but "effective demand" for utilities which, 
in a substantive respect, regulates the production of goods by profit- 
making enterprises through the intermediary of capital accounting. 
What is to be produced is thus determined, given the distribution of 
wealth, by the structure of marginal utilities in the income group which 
has both the inclination and the resources to purchase a given utility. 
In combination with the complete indifference of even the formally 
most perfect rationality of capital accounting towards all substantive 
postulates, an indifference which is absolute if the market is perfecdy 
free, the above statement permits us to see the ultimate limitation, in- 
herent in its very structure, of the rationality of monetary economic 
calculation. It is, after all, of a purely formal character. Formal and 
substantive rationality, no matter by what standard the latter is measured, 
are always in principle separate things, no matter that in many (and 
under certain very artificial assumptions even in all) cases they may 
coincide empirically. For the formal rationality of money accounting does 
not reveal anything about the actual distribution of goods. This must 
always be considered separately. Yet, if the standard used is that of the 
provision of a certain minimum of subsistence for the maximum size of 
population, the experience of the last few decades would seem to show 



13 ] Substantive Conditions of Formal Rationality i o 9 

that formal and substantive rationality coincide to a relatively high 
degree. The reasons lie in the nature of the incentives which are set into 
motion by the type of economically oriented social action which alone is 
adequate to money calculations. But it nevertheless holds true under all 
circumstances that formal rationality itself does not tell us anything about 
real want satisfaction unless it is combined with an analysis of the dis- 
tribution of income." 



14. Market Economies and Planned Economies 

Want satisfaction will be said to take place through a "market econ- 
omy" so far as it results from action oriented to advantages in exchange 
on the basis of self-interest and where co-operation takes place only 
through the exchange process. It results, on the other hand, from a 
"planned economy" so far as economic action is oriented systematically 
to an established substantive order, whether agreed or imposed, which is 
valid within an organization. 

Want satisfaction through a market economy normally, and in propor- 
tion to the degree of rationality, presupposes money calculation. Where 
capital accounting is used it presupposes the economic separation of the 
budgetary unit (household) and the enterprise. Want satisfaction by 
means of a planned economy is dependent, in ways which vary in kind 
and degree according to its extensiveness, on calculation in kind as the 
ultimate basis of the substantive orientation of economic action. For- 
mally, however, the action of the producing individual is oriented to the 
instructions of an administrative staff, the existence of which is in- 
dispensable. In a marke't economy the individual units are autocephalous 
and their action is autonomously oriented. In the administration of 
budgetary units (households), the basis of orientation is the marginal 
utility of money holdings and of anticipated money income; in the case 
of intermittent entrepreneurship CGelegenheitserwerhen), the probabili- 
ties of market gain, and in the case of profit-making enterprises, capital 
accounting are the basis of orientation. In a planned economy, all eco- 
nomic action, so far as "planning" is really carried through, is oriented 
heteronomously and in a strictly "budgetary" manner, to rules which 
enjoin certain modes of action and forbid others, and which establish a 
system of rewards and punishments. When, in a planned economy, 
die prospect of additional individual income is used as a means of stimu- 
lating self-interest, the type and direction of the action thus rewarded is 
substantively heteronomously determined. It is possible for the same 
thing to be true of a market economy, though in a formally voluntary 



,r 

I I O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION f Ch. 11 

way. This is true wherever the unequal distribution of wealth, and 
particularly of capital goods, forces the non-owning group to comply 
with the authority of others in order to obtain any return at all for the 
utilities they can offer on the market — either with the authority of a 
wealthy householder, or with the decisions, oriented to capital accounting, 
of the owners of capital or of their agents. In a purely capitalistic organiza- 
tion of production, this is the fats of the entire working class. 

: - The following are decisive as elements of the motivation of economic 
activity under the conditions of a market economy: ( i ) For those without 
substantial property: (a) the fact that they run the risk of going entirely , 
without provisions, both for themselves and for those personal depend- 
ents, such as children, wives, sometimes parents, whom the individual 
typically maintains on his own account; (b) that, in varying degrees sub- 
jectively they value economically productive work as a mode of life. 
(2) For those who enjoy a privileged position by virtue of wealth or the 
education which is usually in turn dependent on wealth: (a) opportuni- 
ties for large income from profitable undertakings; (b) ambition; (c) the 
valuation as a "calling" of types of work enjoying high prestige, such as 
intellectual work, artistic performance, and work involving high tech- 
nical competence. (3) For those sharing in the fortunes of profit-making 
enterprises: (a) the risk to the individual's own capital, and his own op- 
portunities for profit, combined with (b) the valuation of rational acquisi- 
tive activity as a "calling." The latter may be significant as a proof of the 
individual's own achievement or as a symbol and a means of autonomous 
control over the individuals subject to his authority, or of control over 
economic advantages which are culturally or materially important to an 
indefinite plurality of persons — in a word, power. 

A planned economy oriented to want satisfaction must, in proportion 
as it is radically carried through, weaken the incentive to labor so far as 
the risk of lack of support is involved. For it would, at least so far as there 
is a rational system of provision for wants, be impossible to allow a 
worker's dependents to suffer the full consequences of his lack of effici- 
ency in production. Furthermore, autonomy in the direction of organized 
productive units would have to be greatly reduced or, in the extreme 
case, eliminated. Hence it would be impossible to retain capital risk and 
proof of merit by a formally autonomous achievement. The same would 
be true of autonomous power over other individuals and important fea- 
tures of their economic situation. Along with opportunities for special 
material rewards, a planned economy may have command over certain 
ideal motives of wliat is in the broadest sense an altruistic type, which 
can be used to stimulate a level of achievement in economic production 
comparable to that which autonomous orientation to opportunities for 



14 ] Market Economies and Planned Economies i i i 

profit, by producing for the satisfaction of effective demand, has em- 
pirically been able to achieve in a market economy. Where a planned 
economy is radically carried out, it must further accept the inevitable 
reduction in formal, calculator^ rationality which would result from the 
elimination of money and capital accounting. Substantive and formal (in 
the sense of exact calculation') rationality are, it should be stated again, 
after all largely distinct problems. This fundamental and, in the last 
analysis, unavoidable element of irrationality in economic systems is one 
of the important sources of all "social" problems, and above all, of the 
problems of socialism. 

The following remarks apply to both sees. 13 and 14. 

1. The above exposition obviously formulates only things which are 
generally known, in a somewhat more precise form. The market econ- 
omy is by far the most important case of typical widespread social action 
predominantly oriented to "self-interest." The process by which this type 
of action results in the satisfaction of wants is the subject matter of eco- 
nomic theory, knowledge of which in general terms is here presupposed. 
The use of the term "planned economy" (Planwirtschaft) naturally does 
not imply acceptance of the well-known proposals of the former German 
Minister of Economic Affairs. 26 The term has been chosen because, 
while it does not do violence to general usage, it has, since it was used 
officially, been widely accepted. This fact makes it preferable to the term 
used' by Otto Neurath, "administered economy" (yerwaltungswirt- 
schaft), which would otherwise be suitable. 

2. So far as it is oriented to profit-making, the economic activity of 
organizations, or that regulated by organizations, is not included in the 
concept of "planned economy," whether the organization be a guild, a 
cartel, or a trust. "Planned economy" includes the economic activity of or- 
ganizations only so far as it is oriented to the provision for needs. Any 
system of economic activity oriented to profit-making, no matter how 
strictly it is regulated or how stringently controlled by an administrative 
staff, presupposes effective prices, and thus capital accounting as a basis 
of action; this includes the limiting case of total cartellization, in which 
prices would be determined by negotiation between the cartel groups 
and by negotiated wage agreements with labor organizations. In spite of 
the identity of their objectives, complete socialization in the sense of a 
planned economy administered purely as a budgetary unit and partial 
socialization of various branches of production with the retention of cap- 
ital accounting are technically examples of quite different types. A pre- 
liminary step in the direction of the budgetary planned economy is to he 
found wherever consumption is rationed or wherever measures are taken 
to effect the direct "in-kind" distribution of goods. A planned direction 
of production, whether it is undertaken by voluntary or authoritatively 
imposed cartels, or by agencies of the government, is primarily con- 
cerned with a rational organization of the use of means of production 
and labor resources and cannot, on its own terms, do without price 



112 SOCIOLOGICAL ' CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

or at least, not yet. It is thus by no means fortuitous that the "rationing- 
type" of socialism gets along quite well with the "works councils" (Be- 
triebsrate') type of socialism which, against the will of its leading person- 
alities (who are in favor of a rationalistic solution), must pursue the 
income interests of the workers. 

3. It will not be possible to enter at this point into a detailed discus- 
sion of the formation of such economic organizations as cartels, corpora- 
tions or guilds. Their general tendency is orientation to the regulation or 
monopolistic exploitation of opportunities for profit. They may arise by 
voluntary agreement, but are more generally imposed even where for- 
mally voluntary. Compare in the most general terms, chap. I, sec. 10, 
and also the discussion of the appropriation of economic advantages, sec. 
ioff. of the present chapter. 

The conflict between two rival forms of socialism lias not died down 
since the publication of Marx's Mis&re de la Philosophic. On the one 
hand, there is the type, which includes especially the Marxists, which 
is evolutionary and oriented to the problem of production; on the other, 
the type which takes the problem of distribution as its starting point and 
advocates a rational planned economy. The latter is again tcday corning 
to be called "communism." The conSict within the Russian socialist 
movement, especially as exemplified in the passionate disputes between 
Plekhanov and Lenin, was, after all, also concerned with this issue. 
While the internal divisions of present-day socialism are very largely 
concerned with competition for leadership and for "benefices." along with 
these issues goes the same set of problems. In particular, the economic ( 
experience of the War has given impetus to the idea of a planned econ- 
omy, but at the same time to the development of interests in appropria- 
tion. 

The question of whether a planned economy, in whatever meaning 
or extent, should be introduced, is naturally not in this form a scientific 
problem. On scientific grounds it is possible only to inquire, what would 
be the probable results of any given specific proposal, and thus what 
consequences would have to be accepted if the attempt were made. Hon- 
esty requires that all parties should admit that, while some of the factors 
are known, many of those which would be important are only very par- 
tially understood. In the present discussion, it is not possible to enter 
into the details of the problem in such a way as to arrive at concretely 
conclusive results. The points which will be taken up can be dealt with 
only in a fragmentary way i:i connection with forms of organizations, 
particularly the state. It was possible above only to introduce an un- 
avoidably brief discussion of the most elementary aspects of the techni- 
cal problem. The phenomenon of a regulated market economy has, for 
the reasons noted above, not yet been taken up. 

4. The organization of economic activity on the basis of a market 
economy presupposes the appropriation of the material sources of utili- 
ties on the one hand, and market freedom on the other. The effective- 
ness of market freedom increases with the degree to which these sources 
of utility, particularly the means of transport and production, are ap- 



14 ] Market Economies and Planned Economies i i 3 

propriated. For, the higher the degree of marketability, the more will 
economic action be oriented to market situations. But the effectiveness 
of market freedom also increases with the degree to which appropriation 
is limited to material sources of utility. Every case of the appropriation 
of human beings through slavery or serfdom, or of economic advantages 
through market monopolies, restricts the range of human action which 
can be market-oriented. Fichte, in his Der geschlossene Handelsstaat 
(Tubingen, 1800), was right in treating this limitation of the concept 
of "property" to material goods, along with the increased autonomy of 
control over the objects which do fall under this concept, as characteris- 
tic of the modern market-oriented system. All parties to market relations 
have had an interest in this expansion of property rights because it in- 
creased the area within which they could orient their action to the op- 
portunities of profit offered by the market situation. The development 
of this type of property is hence attributable to their influence. 

5. For reasons of accuracy of expression, we have avoided the term 
"communal economy" (_GemeinwirtschafO, which others have frequently 
used [in the German discussions of 1 918-1920], because it pretends the 
existence of a "common interest" or of a "feeling of community" (G«- 
meinschaftsgefuhY) as the normal thing, which conceptually is not re- 
quired: the economic organization of a feudal lord exacting corvee labor 
or that of rulers like the Pharaohs of the New Kingdom belongs to the 
same category as a family household. Both are equally to be distin- 
guished from a market economy. 

6. For the purposes of the definition of a "market economy," it is in- 
different whether or to what extent economic action is "capitalistic," that 
is, is oriented to capital accounting. This applies also to the normal case 
of a market economy, that in which the satisfaction of wants is effected 
in a monetary economy. It would be a mistake to assume that the devel- 
opment of capitalistic enterprises must occur proportionally to the 
growth of want satisfaction in the monetary economy, and an even larger 
mistake to believe that this development must take the form it has as- 
sumed in the Western world. In fact, the contrary is true. The extension 
of money economy might well go hand in hand with the increasing 
monopolization of the larger sources of profit by the oikos economy of a 
prince. Ptolemaic Egypt is an outstanding example. According to the 
evidence of the accounts which have survived, it was a highly developed 
money economy, but its accounting remained budgetary accounting and -* 
did not develop into capital accounting. It is also possible that with the 
extension of a money, economy could go a process of "feudal ization" 
(Verpfrundung) of fiscal advantages resulting in a traditionalistic stabi- 
lization of the economic system. This happened in China, as will have 
to be shown elsewhere. Finally, the capitalistic utilization of money 
resources could take place through investment in sources of potential 
profit which were not oriented to opportunities of exchange in a free 
commodity market and thus not to the production of goods, For reasons 
which will be discussed below, this has been almost universally true out- 
side the area of the modern Western economic order. 



I I 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

15. Types of Economic Division of Labor 

Every type of social action in a group which is oriented to economic 
considerations and every associative relationship of economic significance 
involves to some degree a particular mode of division and organization of 
human services in the interest of production. A mere glance at the facts 
of economic action reveals that different persons perform different types 
of work and that these are combined in the service of common ends, 
with each other and with the non-human means of production, in the 
most varied ways. The complexity of these phenomena is extreme, but 
yet it is possible to distinguish a few types. 

Human services for economic purposes may be distinguished as (a) 
"managerial," or (b) oriented to the instructions of a managerial agency. 
The latter type will be called "labor" for purposes of the following dis- 
cussion. 

It goes without saying that managerial activity constitutes "labor" in 
the most definite sense if labor is taken to mean the expenditure of time 
and effort as such. The use of the term "labor" in the sense defined 
above, as something distinct from managerial activity, has, however, 
come to be generally accepted for social reasons, and this usage will be 
followed in the present discussion. For more general purposes, the terms 
"services" or "work" CLeistungen') will be used. 

Within a social group the ways in which labor or other work may be 
carried on may be classified in the following way: (1) technically, ac- 
cording to the way in which the services of a plurality of co-operating 
individuals are divided up and combined, with each other and with the 
non-human means of production, to carry out the technical procedures' 
of production; (z) socially. In the first place, classification may be accord- 
ing to whether particular services do or do not fall within the jurisdiction 
of autocephalous and autonomous economic units, and according to the 
economic character of these units. Closely connected with this is classi- 
fication according to the modes and extent to which the various services, 
the material means of production, and the opportunities for economic 
profit used as sources of profit or as means of acquisition, are or are not 
appropriated. These factors determine the mode of occupational differen-, 
tiation, a social phenomenon, and the organization of the market, an 
economic phenomenon; (3) finally, an economic criterion: for every 
case of combination of services with each other and with material means 
of production, of division among different types of economic units, and 
of mode of appropriation, one must ask separately whether they are used 
in a context of budgetary administration or of profit-making enterprise. 

For this and the following section, compare the authoritative discus- 
sion by Karl Biicher in his article "Gewerbe" in the Handworterbvch 



1 5 ] Types of Economic Division of Labor i 1 5 

der Staatwissensckaften and in his book, Die Entstehung der Volkswirt- 
schaft?* These are fundamentally important works. Both the terminol- 
ogy and the classification here presented have departed from Bucher*s 
only where it seemed necessary for reasons of convenience. There is 
little reason to dte other references, for the following exposition does not 
pretend to achieve new results, but only to provide a scheme of analysis 
useful for the purposes of this work. 

1. It should be emphatically stated that the present discussion is 
concerned only with a brief summary of the sociological aspects of these 
phenomena, so far as they are relevant to its context. The economic 
aspect is included only insofar as it is expressed in what are formally 
sociological categories. The presentation would be economic in the sub- 
stantive sense only if the price and market conditions, which so far have 
been dealt with only on the theoretical level, were brought in. But these 
substantive aspects of the general problem could be worked into such a 
summary introduction only in the form of terse theses, which would 
involve some very dubious distortions. The explanatory methods of pure 
economics are as tempting as they are misleading. To take an example: 
4 It might be argued that for the development of medieval, corporately 
regulated, but "free" labor the decisive period should be seen in the 
"dark" ages from the tenth to the twelfth century, and in particular in 
the situation during that period of the skilled Cpeasant, mining, and 
artisan) labor force whose production activity was oriented to the reve- 
nue chances of the feudal lords with rights over the land, the persons, 
and the courts — powers which were fighting for their separate interests 
and competing for these revenue sources. The decisive period for the 
development of capitalism could be claimed to be the great chronic price 
revolution of the sixteenth century. The argument would be that this 
led both to an absolute and a relative increase in the prices of almost all 
products of the soil in the West, and hence — on the basis of well-known 
principles o* agricultural economics — provided both incentives and pos- 
sibilities for market production and thus for production on a large scale; 
in part, as in England, this took the form of capitalistic enterprise, and 
in part, as in the lands between the Elbe river and Russia, that of 
corvee-labor estates. For non-agricultural products, this inflation signified 
in most cases a rise in absolute prices, but, it would be argued, rarely 
one in relative prices; typically, relative prices for industrial goods would 
fall, thus stimulating, so far as the necessary organizational and other 
external and subjective preconditions were given, attempts to create 
market enterprises able to stand up under competitive conditions. The 
claim that these preconditions were not given in Germany would be 
adduced to account for the economic decline which started there about 
that time. The later consequence of all this, the argument would run, 
was the development of capitalist industrial entrepreneurship. A neces- 
sary prerequisite for this would be the development of mass markets. An 
indication that this was actually happening could he seen in certain 
changes of English commercial policy, to say nothing of other phenom- 
ena. 

In order to verify theoretical reasoning about the substantive eco- 



I I 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

nomic conditions of the development of economic structure, theses such 
as these and similar ones would have to be utilized. But this is simply 
not admissible. These and numerous other equally controversial theories, 
even so far as they could be proved not to be wholly erroneous, cannot 
be incorporated into the present scheme which is intentionally limited to 
sociological concepts. In renouncing any attempt of this sort, however, 
the following exposition in this chapter explicitly repudiates any claim 
to concrete "explanation" and restricts itself to working out a sociological 
typology. The same is true of the previous discussion in that it con- 
sciously omitted to develop a theory of money and price determination. 
This must be strongly emphasized. For only the facts of the economic 
situation provide the fiesh and blood for a genuine explanation of also 
that process of development relevant for sociological theory. What can 
be done here is only to supply a scaffolding adequate, to provide the 
analysis with relatively unambiguous and definite concepts. 

It is obvious not only that no attempt is made here to do justice to 
the historical aspect of economic development, but also that the typol- 
ogy of the genetic sequence of possible forms is neglected. The present 
aim is only to develop a schematic system of classification. 

2. A common and justified objection to the usual terminology of eco- 
nomics is that it frequently fails to make a distinction between the 
business "establishment" (Betricfc) and the "firm" QUnternehmung).* 1 In 
the area of economically oriented action, "establishment" is a technical 
category which designates the continuity of the combination of certain 
types of services with each other and with material means of production. 
The antithesis of this category is either intermittent action, or action 
which is constitutionally discontinuous (such as is found in every house- 
hold). By contrast, the antithesis to "firm," which is a category of economic 
orientation (to profit), is the "budgetary unit" (Haushalt), which is eco- 
nomically oriented to provision for needs. But the classification in terms 
of "firro' f and "budgetary unit" is not exhaustive, for there exist actions 
oriented to acquisition which cannot be subsumed under the category 
"firm." All activity in which earnings are due purely to "work," such as 
the activity of the writer, the artist, the civil servant, is neither the one nor 
the other. The drawing and consumption of rents and annuities, however, 
obviously belong into the category of "budgetary administration." 

In spite of this distinction [between the "establishment" and the 
"firm"], we have in the earlier discussion used the term "profit-making 
establishment" (Erwerbsbetrieb^) wherever continuously coordinated, un- 
interrupted entrepreneurial activity was meant; 18 such activity is in fact 
unthinkable without the constitution of an "establishment," if only one 
consisting of nothing but the entrepreneur's own activity without the aid 
of a staff. Our concern so far was mainly to stress the separation of the 
household (budgetary unit) and the continuously organized business 
establishment. It should now be noted that use of the term "profit-making 
establishment" as a substitute for "continuously organized business firm" 
is fitting and unambiguous only in the simplest case where the technical 
unit, the "establishment," coincides with the economic unit, the "firm." 



i 5 ] Types of Economic Division of Labor 1 i 7 

In the market economy this need not be the case, For several technically 
separate "establishments" can be combined into a single "firm." The latter 
is not, of course, constituted through the mere relationship of the various 
technical units to the same entrepreneur, but through the fact that in their 
exploitation for profit these units are oriented to a coordinated plan; hence 
transitional forms are possible. When the term "establishment ' or "enter- 
prise" QBetrieb~) is used by itself, it will always refer to such technical 
units consisting of buildings, equipment, labor, and a technical manage- 
ment, the tatter possibly heteiocephalous and heteronomous — units such 
as exist even in the communist economy (as the terminology presently in 
use also recognizes). The term "profit-making establishment or enterprise" 
will henceforth be used only in cases where the technical and the eco- 
nomic unit (the "firm") are identical. 

The relation between "establishment" and "firm" raises particularly 
difficult terminological questions in the analysis of such categories as 
"factory" and "putting-out enterprise." The latter is quite clearly a type of 
"firm." In terms of "establishments," it consists of two types of units: a 
commercial establishment, and establishments which are component parts 
of the workers' households (in the absence of larger workshops such as 
' might be organized by master craftsmen as intermediaries under a "hi ring- 
boss" system); the household establishments perform certain specified 
functions for the commercial establishment, and vice versa. Viewed only 
from the point of view of "establishments," the process as a whole cannot 
be understood at all; for this it is necessary to employ additional categories, 
such as: market, firm, household (of the individual workers), commercial 
exploitation of purchased services. 

The concept of "factory" could, as has been proposed, be defined in 
entirely non-economic terms as a mode of technical organization, leav- 
ing aside consideration of the status of the workers, whether free or un- 
free, the mode of division of labor, involving the extent of internal 
technical specialization, and the type of means of production, whether 
machines or tools. That is, it would be defined simply as an organized 
workshop. However, it would seem necessary in addition to include in 
the definition the mode of appropriation of premises and means of pro- 
duction — namely: to one owner — , for otherwise the concept would 
become as vague as that of the ergpsterion. 2 * But once this is done, it 
would as a matter of principle seem more expedient to classify "factory" 
and "putting-out enterprise" as two strictly economic categories of the 
"firm" conducted on the basis of capital accounting. In a fully socialist 
order the category "factory" could then occur as little as that of "putting- 
out enterprise," but only such categories as: workshops, buildings, tools, 
shop labor services and domestic labor services of all kinds. 

3. The question of stages of economic development will be consid- 
ered only insofar as it is absolutely necessary, and then only inci- 
dentally. The following points will suffice for the present. 

It has fortunately become more common lately to distinguish types 
of economic system from types of economic policy.* The stages which 
Schonberg first suggested and which, in a somewrsat altered form, have 



I I 8 SOCIOLOGICAL CATEGORIES OE ECONOMIC ACTION [ Ck. II 

become identified with Schmoller's name, "domestic economy," "village 
economy," with the further stages of "seigneurial and princely patri- 
monial household economy" "town economy," "territorial economy," 
and "national economy,"" were in his terminology defined by the type 
of organization regulating economic activity, But it is not claimed that 
even the types of regulation, to which economic activity has been sub- 
jected by the different organizations thus classified in terms of the extent 
of their jurisdiction, were at all different. Thus the so-called territorial 
economic policies in Germany consisted to a large extent simply of an 
adoption of the measures developed in the town economy. Furthermore, 
such innovations as did occur were not greatly different from the 
"mercantilist" policies of those of the patrimonial states which had al- 
ready achieved a relatively high level of rationality; they were thus to 
that . extent "national economic policies," to use the common term, 
which, however, is not very appropriate. This classification, further, 
cbarly does not claim that the inner structure of the economic system, 
the modes in which work roles were assigned, differentiated, ana com- 
bined, the ways in which these different functions were divided be- 
tween independent economic units, and the modes of appropriation of 
control over labor, means of production, and opportunities for profit, in 
any way were correlated with the dimensions of the organizations which 
were (potential) agents of an economic policy; above all this classifica- 
tion does not claim that they always changed in the same direction with 
changes in these dimensions. A comparison of the Western World with 
Asia, and of the modern West with that of Antiquity, would show the 
untenahility of such an assumption. At the same time, in considering 
economic structure, it is by no means legitimate to ignore the existence 
or absence of organizations with substantive powers of regulation of 
economic activity, nor to ignore essential purposes of their regulation. 
The modes of profit-making activity are strongly influenced by such 
regulation, hvt it is by no means only political organizations which are 
important in this respect. 

4. In this connection, as well as others, the purpose of the discus- 
sion has been to determine the optimum conditions for the formal 
rationality of economic ;icnvity and its relation to the various types of 
substantive demands which itiay be made on the economic system. 



1 6 . Types of the Technical Division of Labor 

From a technical point of view the division of labor may be classified 
as follows: CO In the first place, it may vary according to modes of 
differentiation and combination of work services as such; (a) They may 
vary according to the type of functions (.Leistungen) undertaken by the 
same person. He may combine managerial functions with those of carry- 
ing ouv specifications; or his work may be specialized in terms of_one or 
the other. 



i6 ] _ Types of Technical Division of Labor i i 9 

The distinction is naturally relative. It is common for an individual 
who normally supervises to take a hand in the work from time to time, 
as in the case of the peasants with larger holdings. The type cases of 
combination of the two functions are: The small peasant, the independ- 
ent artisan, or the small boatman. 

Further, a given individual may (b) perform functions which are 
technically different and contribute to different results, or he may per- 
form only technically specialized functions. In the first case, the lack of 
specialization may be due to the technical level of work which does not 
permit further dividing up, to seasonal variation, or to the exploitation of 
labor services as a side line at times when they are not taken up by their 
primary occupation. In the second case, the function may be specialized 
in terms of the product in such a way that the same worker carries out 
all the processes necessary for this product, though they differ technically 
from each other. In a sense, this involves a combination of different 
functions and will be called the "specification of function." On the other 
hand, the functions may be differentiated according to the type of work, 
so that the product is brought to completion only by combining, simul- 
taneously or successively, the work of a number of persons. This is the 
"specialization of function." The distinction is to a large extent relative, 
but it exists in principle and is historically important. 

The case where there is little division of labor because of the low 
technical level is typical of primitive household economies. There, with 
the exception of the differentiation of sex roles (of which more in Part 
Two, ch. III) every individual performs every function as the occasion 
arises. Seasonal variation has been common in the alternation of agri- 
cultural work in the summer with the crafts in the winter. An example 
of side lines is the tendency for urban workers to take up agricultural 
work at certain times, such as the harvest, and also the various cases of 
secondary functions undertaken in otherwise free time, which is com- 
mon even in modem offices. 

The case of specification of function is typical of the occupational 
structure of the Middle Ages: a large number of crafts, each of which 
specialized in the production of a single article, completely unperturbed by 
the technical heterogeneity of the functions involved. There was thus a 
combination of functions. The specialization of functions, on the other 
hand, is crucial to the modern development of the organization of labor. 
There are, however, important physiological and psychological reasons 
why it has virtually never been pushed to the absolute extreme of isola- 
tion, even on the highest levels of specialization. There is almost always 
an element of specification of function involved. It is not, however, as in 
the Middle Ages, oriented to the final product. 

(2) The differentiation and combination of different functions may 
further vary according to the modes in which the services of a plurality 
of persons are combined to achieve a co-ordinated result. There are two 



I 2 O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

main possibilities: (a) the "accumulation" of functions; that is the em- 
ployment of a number of persons all performing the same function to 
achieve a result. This may take the form either of identical, but tech- 
nically independent efforts co-ordinated in parallel, or of identical efforts 
organized technically into a single collective effort. 

Examples of the first case are the functions performed by mowers or 
road pavers, several of whom work in parallel. The second type was ex- 
emplified on a grand scale in ancient Egypt in such cases as the transporta- 
tion of huge stones by thousands of workers, large numbers of them 
performing the same acts, such as pulling on ropes, on the same object. 

The second type, (b) is the "combination" of functions — that is, of 
efforts which are qualitatively different, and thus specialized — in order to 
achieve a result. These erTorts may be technically independent and either 
simultaneous or successive; or they may involve technically organized 
co-operation in the simultaneous performance of technically comple- 
mentary efforts. 

i. A particularly simple example of simultaneous, technically inde- 
pendent functions is furnished by the parallel spinning of the warp and 
the woof for a given cloth. In the same class are to be placed a very 
large number of processes which are, from a technical point of view, 
undertaken independently, but are all designed as part of the produc- 
tion of the same final product. 

2. An example of the successive type of technically independent 
processes is furnished by the relation of spinning, weaving, Fulling, 
dyeing, and finishing. Similar examples are to be found in every in- , 
dustry. 

3. The combination of specialized functions is found all the way 
from the case of an assistant holding a piece of iron while a blacksmith 
forges it, a case which is repeated in every modem foundry, to the com- 
plicated situations, which, though not specific to modem factories, are 
an important characteristic of them. One of the most highly developed 
types outside the factory is the organization of a symphony orchestra or 
of the cast of a theatrical production. 



1 7. Types of the Technical Division of Labor — 
(Continued) 

The division of labor efforts varies also, from a technical point of 
view, in terms of the extent and nature of combinations with comple- 
mentary material means of production. 

1 . Forms may vary according to whether they consist purely in per- 
sonal services, as in the case of wash-women, barbers, the performance of 



l 7 ] TyP es °f Technical Division of Labor (cont.) i 2 1 

actors, or whether they produce or transform goods by "working up" or 
transporting raw materials. The latter may consist in construction work, 
as that of plasterers, decorators, and stucco workers, in production of 
commodities and in transport of commodities. There are many transi- 
tional forms between them. 

2. They may be further distinguished according to the stage at 
which they stand in the progression from original raw material to con- 
sumption: thus, from the original products of agriculture and mining to 
goods which are not only ready to be consumed, but available at the 
desired place for consumption. 

3. The forms may further vary according to the ways in which they 
use: (a) Fixed plant and facilities (Anlagen). These may consist in 
sources of power; that is, means of harnessing energy, either that of 
natural forces, such as the power of water, wind, or heat from fire, or 
that which is produced mechanically, especially steam and electrical 
power, or in special premises for work, or they may use (b) implements 
of work (ArbeitsmitteV), which include tools, apparatus, and machines. 
In some cases only one or another of these means of production may be 
used, or none. "Tools" are those aids to labor, the design of which is 
adapted to the physiological and psychological conditions of manual 
labor. "Apparatus" is something which is "tended" by the worker. 
"Machines" are mechanized apparatus. These rather vague distinctions 
have a certain significance^For characterizing epochs in the development 
of industrial technology. 

The use of mechanized sources of power and of machinery, char- 
acteristic of modem industry, is from a technical point of view due to 
their specific productivity and the resulting saving of human labor, and 
also to the uniformity and calculability of performance, both in quality 
and quantity. It is thus rational only where there exists a sufficiendy 
wide demand for the particular types of products. In the case of a market 
economy, this means adequate purchasing power for the relevant goods; 
and this in rum depends on a certain type of income distribution. 

It is quite out of the question here to undertake to develop even the 
most modest outline of a theory of the evolution of the technology and 
economics of tools and machinery. The concept of "apparatus" refers to 
such things as the type of loom which was operated by a foot-pedal and 
to numerous other similar devices. These already involve a certain rela- 
tive independence on the part of the mechanical process, as distin- 
guished from the functioning of the human or, in some cases, the ani- 
mal organism. Without such apparatus — which included in particular 
various devices for moving materials in mines — machines, with their 
importance in modem technology, would never have come into exist- 
ence. Leonardo's famous inventions were types of apparatus. 



12 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

1 8 . Social Aspects of the Division of Labor 

From the social point of view, types of the division of labor may be 
classified in the following .way-. In the first place, according to the ways 
in which qualitatively different, especially complementary functions, are 
distributed among more or less autocephalous and autonomous economic 
units, which may further be distinguished economically according to 
whether these are budgetary units or profit-making enterprises. There 
are two polar possibilities: 

(i) A "unitary" economy (Uinheitswinschaft) where the specializa- 
tion (or specification) of functions is wholly internal, completely hetero-" 
cephalous and heteronomous and determined on a purely technical basis. 
The same would be true of the co-ordination of functions. A unitary 
economy may, from an economic point of view, be either a budgetary 
unit or a profit-making enterprise. 

' On the largest possible scale, a communist national economy would 
be a unitary budgetary economy; on the smallest scale it was the primi- 
tive family unit; which included all or the great majority of production 
functions in a "closed household economy." The type case of a "unitary" 
profit-making enterprise with purely internal specialization and co- 
ordination of functions is naturally the great vertical combination" 
which treats with outsiders only as an integrated unit. These two dis- 
tinctions will suffice for the moment as a treatment of the development 
of autonomous unitary economy. 

(2) The distribution of functions may, on the other hand, take place 
between autocephalous economic units, (a) It may consist in the spe- 
cialization or specification of functions between heteronomous, but auto- 
cephalous units which are oriented to an order established by agreement 
or imposed. The order, in turn, may be substantively oriented in a variety 
of ways. Its main concern may be to provide for the needs of a superior 
economic unit, which may be the budgetary unit (household) of a lord, 
an oikos, or it may be oriented to profit-making for an economic unit 
controlled by 3 political body or lord. The order may, on the other hand, 
be concerned with providing for the needs of the members of some 
closed group {genossenschaftHcher Verband). From an economic point 
of view, this may be accomplished .either in the "budgetary" (household) 
or in the "profit-making" mode. The organization in all these cases may 
either be confined to the mere regulation of economic activity or it may, 
at the same time, be engaged in economic action on its own account, 
(b) The other main type is the specialization of autocephalous and 
autonomous units in a market economy, which are oriented on the one 
hand substantively only to their own self-interest, formally only to the 



i8 ] Social Aspects of the Division of Labor i 2 3 

brder of an organization such as the laissez-faire state, which enforces 
only formal, rather than substantive rules (See above, chap. II, sec. 5-"d). 

1. A typical example of the organization which, limiting its function 
to the regulation of economic activity, takes the form of a budgetary 
unit administered by an association of the members under case 2GO, is 
the organization of village handicrafts in India ("establishment"). An 
organization with autocephalous but heteronomous units '■ oriented in 
their economic activity to the household of a lord, as under 2(a), may 
be illustrated by structures which provide for the household wants of 
princes or landlords (in the case of princes, also for the political wants) 
by means of contributions from the individual holdings of subjects, de- 
pendents, serfs, slaves, cottars, or sometimes "demiurgic" (see below) 
village artisans, such are found everywhere in the world. The exactions 
of services or products for a landlord or a town corporation should usu- 
ally be classified as "mere regulation of economic activity," insofar as 
they usually served only fiscal, not substantive ends. A case of market 
order with units oriented to profit-making for the lotd exists where 
putting-out type production tasks contracted for are reallocated to the 
individual households. 

The types where there is specialization and specification of function 
between heteronomous units under the aegis of a co-operative organiza- 
tion can be illustrated by the specialization common in many very old 
small-scale industries. The Solingen metal trades were originally organ- 
ized in terms of a voluntary association determining the division of labor 
by agreement. It was only later that they became organized in terms of 
domination, namely as a "putting-out industry." The type where the 
autocephalous economic units are subject only to regulation by an 
organization is illustrated by innumerable cases of the rules established 
by village communities and town corporations for the regulation of trade, 
so far at least as these have a substantive influence on the processes of 
production. 

The case of specialization as between autonomous and autocephalous 
units in a market economy is best illustrated by the modem economic 
. order. 

2. A few further details may be added. The order of the organiza- 
tions which attempt to provide for the wants of their members on a 

' budgetary basis is 'budgetary" in a particular way — that is, it is oriented 
to the prospective needs of the individual members, not of the organized 
group, such as a village itself. Specified service obligations of this kind 
will be called "demiurgic liturgies," 33 and this type of provision for 
needs, correspondingly, "demiurgic provision." It always is a question of 
corporate regulation governing the division of labor and, in some cases, 
the mode of combination of labor services. 

This term will not, on the other hand, be applied to an organization, 
whether it is based on domination or on voluntary co-operation, if it 
carries on economic activity on its own account, contributions to which 
are sub-allocated on a specialized basis. The type cases of this category 



124 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Cfe. II 

are the specialized and specified contributions in kind of corvie estates 
(Fremfcofs), seigneurial estates, and other types of large household units. 
But sub-allocated obligations are also common in various types of organi- 
zations which are not primarily oriented to economic ends, such as the 
households of princes, political groups and the budgetary administration 
of local communities. These contributions are generally for the benefit 
of the budgetary needs of the governing authority or for corporate pur- 
poses. These in-kind obligations of services and products imposed on 
peasants, artisans, and tradesmen will be called "oifeos liturgies in kind" 
when they are owed to the household establishment of an individual, 
and "corporate liturgies in kind" when they are payable to the budgetary 
unit of an organization as such. The principle governing this mode of 
provision for the budgetary needs of an organization engaged in eco- 
nomic action, is called "liturgical provision." This mode of organization 
has played an exceedingly important historical role and will have to be 
discussed frequently. In political organizations, it held the place of 
modern "public finances," and in economic groups it made possible a 
decentralization of the main household by providing for its needs 
through actors who were no longer maintained and utilized in it. Each 
sub-unit managed its own affairs, but assumed the obligation to fulfill 
certain functions for the central unit and to. that extent was dependent 
on it. Examples are peasants and serfs subject to various kinds of labor 
services and payments in kind; craftsmen attached to an estate; and a 
large number of other type;:. Rodbertus 34 was the first to apply the 
term "oikos" to the large-scale household economies of Antiquity. He 
accepted as the principal criterion the essential autarky of want satisfac- 
tion through utilization of the services of household members or of de- 
pendent labor, materia] means of production being made available on 
a non-exchange basis. It is a fact that the landed estates, and still more 
the royal households, of Antiquity, especially of the New Kingdom in 
Egypt, were cases where the greater part of the needs of the unit were 
provided by services and payments in kind, which were obligations of 
dependent household units, although the degree of approach to the pure 
type varies widely. The same phenomena are to be found at times in 
China? and India, and to a less extent in our own Middle Ages, be- 
ginning with the capitulate de villis. 3 ^ It is true that exchange with the 
outside was generally not entirely lacking, but it tended to have the 
character of budgetary exchange. Obligations to money payment have 
also not been uncommon, but have generally played a subsidiary part in 
the main provision for needs and have tended to be traditionally fixed. 
For the economic units subject to liturgical obligations it also has not 
been uncommon to be involved in exchange relations. But the decisive 
point is that the bulk of the subsistence of these units was covered by 
the in-kind benefits — either in the form of certain quotas of products, or 
in that of the use of pieces of land — which they received in compensa- 
tion for the liturgical deliveries imposed on them. There are, of course, 
many transitional forms. But in each case there is some kind of regula- 



i8 ] ~ Social Aspects of the Division of Labor i 2 5 

tion of functions by an organization which is concerned with the mode 
of division of labor and of its co-ordination. 

3. The cases where an organization regulating economic activity is 
oriented to considerations of economic profit are well illustrated by those 
economic regulations of the communes of medieval Europe, and by the 
guilds and castes of China and India, which restricted the number of 
master craftsmen and their functions and also the techniques of the 
crafts, that is, the way ir which labor was oriented in the handicrafts. 
They belonged to this tyoe so far as the rules were intended not pri- 
marily to secme provision of the consumer with the products of the 
craftsmen, but, as was often though not always the case, to secure the 
market position of the artisans by maintaining the quality of perform- 
ance and by dividing up the market. Like every other type of economic 
regulation, this type also involved limitations on market- freedom and 
hence on the fully autonomous business orientation of the craftsmen. It 
was unquestionably intended to maintain the "livings" for the existing 
craft shops, and to that extent, in spite of its apparent "business" char- 
acter, it was more closely related to the budgetary mode of orientation. 
■ * 4. The case of an organization itself engaged in economic activity 
with an orientation to profit-making can be illustrated, apart from the 
pure type of putting-out industry already discussed, by the agricultural 
estates of the German East with a labor force holding small plots of 
estate land on a service tenure and entirely oriented to the order of the 
estate Qnsthute*), or by those of the German NorthAVest with similar 
types of tenant labor (Hewer/i«ge) who, however, hold their plots on a 
rental basis. The agricultural estates, just like the putting-out industries, 
are profit-making organizations of the landlord and the entrepreneur, 
respectively. The economic units of the tenants and home-industry 
workers are oriented, both in the imposed division of functions and in 
the mode of combining work efforts, as in the whole of their economic 
conduct, primarily to the obligations which the order of the estate or 
the putting-out relationship dictates to them. Apart from that, they are 
households. Their acquisitive efforts are not autonomous, but heterono- 
nious efforts oriented to the enterprise of the landlord or the entrepre- 
neur. Depending upon the degree to which this orientation is substan- 
tively standardized, the division of functions may approach the purely 
technical type of division within one and the same enterprise which is 
typical of the factory. 



1 9. Social Aspects of the Division of Labor — 
(Continued) 

From a social point of view, the modes of the division of labor may bv 
further classified according to the mode in which the economic advan- 
tages, which are regarded as returns for the different functions, are ap- 



I 2 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

propriated. Objects of appropriation may be: the opportunities of 
disposing of, and obtaining a return from, human labor services QLeis- 
tungsverwertungsckancerO; the material means of production;* 8 and the 
opportunities for profit from managerial functions. 41 (On the sociological 
concept of appropriation, see above, chap. I, sec. i o). 

When the utilization rights for labor services are appropriated, the 
services themselves may either, (i) go to an individual recipient (a lord) 
or to an organization, or (2) they may be sold on the market. In either 
case one of the following four, radically different, possibilities may ap- 

(a) Monopolistic appropriation of the opportunities for disposal of 
labor services by the individual worker himself: the .case of "craft- 
organized free labor." The appropriated rights may either be hereditary 
and alienable, in which case type (1) above is illustrated by the Indian 
village artisan and type (2) by certain medieval non-personal craft 
rights; or they may be strictly personal and inalienable, as under type 
CO all "rights to an office"; or, finally, they may be hereditary, but 
inalienable, as under types (O and (2) certain medieval, but above all 
Indian, craft rights, and medieval "offices" of the most diverse kind. In 
all these cases appropriation may be unconditional or subject to certain 
substantive conditions. 

(b) The second possibility is that the right of utilization of labor 
services is appropriated to an "owner" of the worker: the case of "unfree 
labor." The property rights in the worker may be both hereditary and 
alienable — the case of slavery proper. Or, though it is hereditary, it may 
not be freely alienable, but, e.g., only together with the material means 
of production, particularly the land. This includes serfdom and heredi- 
tary dependency. 

The appropriation of the use of labor by a lord may be limited by 
substantive conditions, as in serfdom. The worker cannot leave his status 
of his own free will, but neither can it arbitrarily be taken from him. 

The appropriated rights of disposal of labor services may be used by 
the owner for .purposes of budgetary administration, as a source of 
income in kind or in money, or as a source of labor services in his house- 
hold, as in the case of domestic slaves or serfs. Or it may be used as a 
means of profit. In that case the dependent may be obligated to deliver 
goods or to work on raw materials provided by the owner. The owner 
will then sell the product. This is unfree domestic industry. He may, 
finally, use his laborer in an organized shop — a slave or serf workshop. 

The person herein designated as the "owner" may be involved in the 
work process himself in a managerial capacity or even in part as a work- 



la ] Social Aspects of ike Division of Labor (cont.) 127 

er, but this need not be true. It may be that his position as owner, if so 
facto, makes him the managing agent. But this is by no means neces- 
sary and is very generally not the case. 

The use of slaves and serfs, the latter including various types of 
dependents, as part of a process of budgetary administration and as 
source of rent revenue, but not as workers in a profit-making enterprise, 
was typical of Antiquity and of the early Middle Ages. There are, for 
instance, cuneiform inscriptions which mention slaves of a Persian 
prince who were bound out as apprentices, possibly to be used later for 
labor services in the household, but perhaps to be set to work in sub- 
stantive freedom for their own customers, making a regular payment to 
the owner (an early equivalent of the Greek airo<f>opa, the Russian 
ohrok, and the German Hals- or Leihzins). Though by no means 
without exception, this tended to be the rule for Greek slaves; and in 
Rome this type of independent economic activity with a peculium or 
merx -peculiaris and, naturally, payments to the owner, found reflection 
in various legal institutions. In the Middle Ages, body serfdom Q^eib- 
herrschaft) frequently involved merely a right to claim payments from 
' otherwise almost' independent persons. This was usual in western and 
southern Germany. In Russia, also, de facto limitation to the receipt of 
these payments (obrok*) from an otherwise independent serf was, if not 
universal, at least very common, although the legal status of these per- 
sons remained precarious. 

The use ofunfree labor for "business" purposes has taken the follow- 
ing principal forms, particularly in the domestic industries on seigneur- 
ial estates, including various royal estates, among them probably those of 
the Pharaohs: (1) Unfree obligation to payments in kind — the delivery 
of goods in kind, the raw material for which was produced by the work- 
ers themselves as well as worked on by them. Flax is an example; (2) 
unfree domestic industry — work on material provided by the lord. The 
product could be sold at least in part for money by the lord. But in 
many cases, as in Antiquity, the tendency was to confine market sale to 
occasional instances. In early modern times, however, particularly in the 
German-Slavic border regions this was not the case; it was there, though 
. not only there, that domestic industries developed on the estates of land- 
lords. The utilization in a continuous organization could take the form 
of unfree home-industry labor or of unfree workshop labor. Both forms 
are common. The latter was one of the various forms of the ergasterion 
of Antiquity. It was found on the estates of the Pharaohs, in temple 
workshops, and according to the testimony of tomb frescoes, also on the 
estates of private owners or lords, in the Orient, in Greece (Demosthe- 
nes' shops in Athens), in the Roman estate workshops (see the descrip- 
tion by Gummerus), in the Carolingian genitium (that is, a gynaik* 
eion), and in more recent times for example in the Russian serf factories 
(see Tugan-Baranovskii's book on the Russian factory). 38 

(c) The third possibility is the absence of any sort of appropriation: 
formally "free" labor, in this sense that the services of labor are the sub- 



I 2 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

ject of a contractual relationship which is formally free on both sides. 
The contract may, however, be substantively regulated in various ways 
through a conventional or legal order governing the conditions of labor. 
Freely contracted labor may be used in various ways. In the first 
place, in a budgetary unit, as occasional labor (what Bucher calls 
Lohnwerfc), either in the household of the employer (Stor^ or in that 
of the worker himself (Heimwerk in Biicher's terminology). Or it may 
be permanent, again performed in the household of the employer, as in 
the case of domestic service, or in that of the worker, as typical of the 
colonate. It may, on the other hand, be used for profit, again on an 
occasional or a permanent basis; and in both cases either in the worker's 
own home or on premises provided by the employer. The' latter is true of 
workers on an estate or in a workshop, but especially of the factory. 

Where the worker is employed in a budgetary unit, he is directly in 
the service of a consumer who supervises his labor. Otherwise, he is in 
the service of a profit-making entrepreneur. Though the form is often 
legally identical, economically the difference is fundamental. Coloni 
may be in either status; but it is more typical for them to be workers in 
an oikos. & 

(d) The fourth possibility is that opportunities for disposal of labor 
services may be appropriated by an organization of workers, either with- 
out any appropriation by the individual worker or with important limita- 
tions on iuch appropriation. This may involve absolute or relative closure 
against outsiders and also prohibition of the dismissal of workers from 
employment by management without consent of the workers, or at least 
some kind of limitations on power of dismissal. 

Examples of the type of appropriation involving closure of the group 
are castes of workers or the type of miners' association found in the Me- 
dieval mining industry, the organized groups or retainers sometimes 
found at courts, or the "thresher tenure" (Dreschgartner') on landed 
estates in Germany. This type of appropriation is found throughout the 
social history of all parts of the world in an endless variety of forms. The 
second type involving limitations on powers of dismissal, which is also 
very widespread, plays an important part in the modern situation in the 
"closed shop" of trade unions and especially in the "works councils." 

Every form of appropriation of jobs in profit-making enterprises by 
workers, like the converse case of appropriation of the services of workers 
by owners, involves limitations on the free recruitment of the labor force. 
This means that workers cannot be selected solely on grounds of their 
technical efficiency, and to this extent there is a limitation on the formed. 
rationalization of economic activity. Appropriation of jobs also imposes 
substantive limitations on technical rationality, namely: (i) it the ex- 



19 ] Social Aspects of the Division of Labor (cont.) i 2 9 

ploitation fer profit of the products of labor is appropriated by an owner, 
through the tendency to restrict the work effort, either by tradition, or 
by convention, or by contract; also through the reduction or complete 
disappearance (if the worker is fully owned, a slave) of the worker's 
own interest in optimal effort; (2) if the exploitation for profit of the 
products is also appropriated by the workers, there may be a conflict of 
the worker's self-interest, which lies in the maintenance of his traditional 
mode of life, with the attempts of his employer to get him to produce 
at the optimum technical level or to use other means of production in 
place of labor. For employers, there is always the possibility of transform- 
ing their exploitation of labor into a mere source of income. Any ap- 
propriation of the exploitation of products by the workers thus generally 
leads under otherwise favorable circumstances to a more or less complete 
expropriation of the owner from management. But it also regularly tends 
to place workers in a state of dependence on people with whom they 
deal who enjoy a more favorable market position. These, such as putting- 
out entrepreneurs, thvm tend to assume a managerial position. 

4 1. The very opposite forms of appropriation — that of jobs by work- 
ers and that ~£ workers by owners — nevertheless have 'in practice very 
similar results. This should not be surprising. In the first place, the two 
tendencies are very generally formally related. This is true when appro- 
priation of the workers by an owner coincides with appropriation of op- 
portunities for jobs by a closed organization of workers, as has happened 
in the manor associations. In such cases it is natural that exploitation of 
labor services should, to a large extent, be stereotyped; hence, that work 
effort should be restricted and that the workers have little self-interest in 
the output. The result is generally a successful resistance of workers 
against any sort of technical innovation. But even where this does not 
occur, the fact that workers are appropriated by an owner means in prac- 
tice that he is obliged to make use of this particular labor force. He is 
not in a position, like the modern factory manager, to select according 
to technical needs, but must utilize those he has without selection. This 
is particularly true of slave labor. Any attempt to exact performance from 
appropriated workers beyond that which has become traditionally estab- 
lished encounters traditional obstacles. These could only be overcome by 
the most ruthless methods, which are not without their danger from the 
point of view of the owner's self-interest, since they might undermine 
the traditionalistic bases of his authority. Hence almost universally the 
work effort of appropriated workers has shown a tendency to restriction. 
Even where, as was particularly true of eastern Europe at the beginning 
of the modem age, this was broken by the power of the lords, the devel- 
opment of higher technical levels of production was impeded by the ab- 
sence of the selective process and by the absence of any element of self- 
interest or own risk-taking on the part of the appropriated workers. 



130 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

When jobs have been formally appropriated by workers, the same result 
has come about even more rapidly. 

2, Appropriation by workers was typical for the development in the 
early Middle Ages (10th to 13th century). The Carolingian Beunden* 9 
and all other beginnings of large-scale agricultural enterprise declined 
and disappeared. The rents and dues paid to landlords and lords holding 
rights over persons became stereotyped at a low level; and an increasing 
proportion of the products in kind, in agriculture and mining, and of 
the money proceeds from the handicrafts, went to the workers. In just 
this form this development was peculiar to the Western world. The 
principal circumstances which favored it were as follows: ( a ) The fact 
that the propertied classes were heavily involved in political and military 
activity; (b) the absence of a suitable administrative staff. These two 
. circumstances made it impossible for them to utilize these workers in any 
other way than as a source of rent payments; (c) the fact that the free- 
dom of movement of workers between the potential employers competing 
for their services could not easily be restricted; (d) the numerous oppor- 
tunities of opening up new land, new mines, and new local markets; 
(e) the primitive level of the technical tradition. The more the appro- 
priation of profit opportunities by the workers replaced the ■appropriation 
of workers by owners, the more the owners were dispossessed of their 
rights of control and became mere recipients of rents and dues. Classical 
examples are the mining industry and the English guilds. Even at this 
early period the process tended to go further, to the point of redemption 
or repudiation of the obligation to make payments to a lord altogether, 
on the principle that "A townsman is a freeman." Almost immediately 
all this led to a differentiation of the opportunities of making profit by 
market transactions, arising either from within the group of workers 
themselves or from without through the development of trade. 



20. Social Aspects of the Division of Labor: The Appro- 
priation of the Material Means of Production 

The material means of production may be appropriated by workers 
as individuals or as organizations, by owners, or by regulating groups 
consisting of third parties. 

When appropriated by workers, it may be by the individual worker 
who then becomes the "owner" of the material means of production; or 
the appropriation may be carried out by a completely or relatively closed 
group of workers so that, though the individual worker is not the owner, 
the organization is. Such an organization may carry out its functions as a 
unitary economy on a "communist" basis, or with appropriation of shares 
(genossenschaftlich^). In all these cases, appropriation may be used for 
the purposes of budgetary administration or for profit making. 



zo ] Appropriation of Material Means of Production i 3 1 

Appropriation of the means of production by individual workers may 
exist in a system of complete market freedom of the small peasants, arti- 
sans, boatmen, or carters, or under the aegis of a regulating group. 
Where it is not the individual but an organization which owns the means 
of production, there is a wide variety of possibilities, varying particularly 
with the extent to which the system is of a budgetary or a profit- 
making character. The household economy, which is in principle not 
necessarily by origin or in fact communistic (see Part Two, ch. HI), may 
be oriented wholly to provision for its own needs. Or it may, perhaps 
only occasionally, dispose of surpluses of certain types of raw material 
accumulated by virtue of a favorable location, or of products derived 
from some particular technical skill, as a means to better provision. This 
occasional sale may then develop into a regular system of profit-making 
exchange. In such cases it is common for "tribal" crafts to develop, with 
interethnic functional specialization and trade between the tribes, since 
the chances of finding a market often depend on maintaining a monop- 
oly r which in turn is usually secured by inherited trade secrets. From 
this may develop ambulatory crafts or possibly pariah 40 crafts or, where 
these groups are united in a political structure and where there are ritual 
barriers between the ethnic elements, castes, as in India. 

The case where members of the group possess appropriated shares is 
that of "producers' co-operation."* 1 Household economies may, with the 
development of money accounting, approach this type. Otherwise, it is 
occasionally found as an organization of workmen. It was of great signifi- 
cance in one important case, that of the mining industry of the early 
Middle Ages. 

Since appropriation by organized groups of workers has already been 
dealt with, appropriation by "owners" or organized groups of them can 
only mean the expropriation of the workers from the means of produc- 
tion, not merely as individuals, but as a whole. An owner may in this 
connection appropriate one or more of the following items: land, includ- 
ing water; subterranean wealth; sources of power, work premises; labor 
equipment, such as tools, apparatus and machinery; and raw materials. 
In any given case all these may be concentrated in a single ownership 
or they may be appropriated by different owners. The owners may em- 
ploy the means of production they appropriate in a context of budgetary 
administration, either as means to provide for their own needs or as 
sources of income by lending them out. In the latter case, the loans may 
in turn be used by the borrower for budgetary purposes or as means for 
earning a profit, either in a profit-making establishment without capital 
accounting or as capital goods (in their own enterprise). Finally, the 
owner may use them as capital goods in his own enterprise. 

The appropriating agency may be an organization engaged in eco- 
nomic activity. In this case, all the alternatives just outlined are open to 
it. 



I 3 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

It is, finally, also possible that the means of production should be 
appropriated by an organization which only regulates economic activity, 
which does not itself use them as capital goods or as a source of income, 
but places them at the disposal of its members. 

I. When land is appropriated by individual economic units, it is usu- 
ally for the period of actual cultivation until the harvest or, so far as, by 
virtue of clearing or irrigation, land is itself an artifact, for the period of 
continuous cultivation- It is only when scarcity of land has become no- 
ticeable that it is common for rights of cultivation, pasturage and use of 
timber to be reserved to the members of a settlement group, and for the 
extent of their use to be limited. 

(i) When that happens, appropriation may be carried out by an or- 
ganization. This may be of differing sizes, according to the mode of use, 
to which the land is put — for gardens, meadows, arable land, pastures, 
or woodland. These have been appropriated by progressively larger 
groups, from the individual household to the whole tribe. Typical cases 
are the appropriation of arable land, meadows, and pastures by a kin- 
ship group or a neighborhood group, usually a village. Woodland has 
usually been appropriated by broader territorial groups, differing greatly 
in character and extent. The individual household has typically appro- 
priated garden land and the area around the house and has had snares 
in the arable fields and meadows. The system of shares may find ex- 
. pressiofi CO in the de facto egalitarianism of the assignment of newly 
tilled Gelds where cultivation is "ambulatory" (as in the so-called field- 
grass husbandry), or (ii) in rationally systematic redistribution under 
sedentary cultivation. The latter is usually the consequence of either 
fiscal claims for which the village members are collectively held respons- * 
ible, or of political claims of the members for equality. The unit of the 
production organization has usually been the household (on which see 
Part Two, ch. Ill and IV). 

(2) Appropriation of the land may also be to a lord or seigneur 
(Grwndfeerr). This seigneurial position, as will be discussed later, may 
be based primarily on the individual's position of authority in a kinship 
group or as tribal chieftain with claims to exact labor services (see Part 
Two, ch. IV), or on fiscal or military authority, or on some form of or- 
ganization for ; the systematic exploitation of new land or an irrigation 
project. Seigneurial domination over land (.Grundherrxhaft) may be 
. made a . source of utilities by the employment of the unfree labor of 
slaves or serfs* This, in turn, may be administered as part of a budgetary 
unit, through deliveries in kind or labor services, or as a means of profit, 
as a "plantation." On the other hand, it may be exploited with free 
labor. Here again it may be treated in budgetary terms, drawing income 
from the land in the form of payments in kind or from share-cropping 
by tenants or of money rents from tenants. In both cases the equipment 
used may be provided by the tenant himself, or by the seigneur (colo- 



20 ] _ Appropriation of Material Means of Production i 3 3 

nate). A lord may also exploit his holding as a source of profit in the 
form of a large-scale rational economic enterprise. 

Where the land is used as part of a budgetary economy with unfree 
,. labor, the lord is apt to be bound traditionally in his exploitation of it, 
.both with respect to his labor personnel, which is not subject to selec- 
fcn, and to their functions. The use of unfree labor in .a profit-making 
establishment, the "plantation," occurred only in a few cases, notably 
in Antiquity in Carthage and in Rome, and in modern times in the 
plantations of colonial areas and in the Southern States of North Amer- 
ica. The use of land in large-scale profit-making enterprises with free 
labor has occurred only in the modem Western \Vorld. It is the mode 
of development of the medieval landlordship or seigneurie (Grundherr- 
schaft),. in particular the way in which it was broken up, which has 
been most decisive in determining the modern forms of land appropria- 
tion. The modern pure type knows only the .following categories: the 
owner of the land, the capitalistic tenant, and the propertyless agricul- 
tural laborer. But this pure type is exceptional, found principally in 
England. 

II. Sources of wealth adapted to exploitation by -mining may be 
4 appropriated in the following ways: (a) By the owner of the land, who 
in the past has usually been a seigneur; (b) by a political overlord 
(owner of the regal prerogatives or "royalties"); (c) by any person dis- 
covering deposits worthy of mining (Bergbaufretheity, (d) by an organ- 
ization of workers; and (e) by a profit-making enterprise. Seigneurs and 
owners of "royalties" may administer their holdings themselves, as they 
did occasionally in the early Middle Ages; or they may use them as a 
source of income, by leasing them to an organized group of workers or 
to any discoverer whatever or to anyone who was a member of a given 
group. This was the case with the "freed mountains" (gefreite Berge) 
of the Middle Ages and was the origin of the institution ' of "mining 
freedom" (Bergbaufreikeit).** 

In the Middle Ages, the groups of organized mine workers were 
typically closed membership groups with shares held by the members, 
where each member was under obligation, either to the seigneurial 
owner, or to the other members collectively responsible to him, to work 
' in the mine. This obligation was balanced by a right to a share in the 
products. There was also a type of a pure "owners" association, each 
sharing in the proceeds or the contributions required due to losses. TTie 
tendency was for the seigneurial owners to be progressively expropriated 
in favor of the workers; but these, in him, as their need for investment 
in installations increased, became more and more dependent on groups 
with command over capital goods. Thus in the end, the appropriation 
took the form of a capitalistic Gewerkschaft, a limited liability company. 

HI. Means of production which are fixed installations, such as 
sources of power, particularly water power, "mills" for various different 
purposes, and workshops, sometimes including the fixed apparatus in 
them, have in die past, particularly in the Middle Ages, generally been 



I 3 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

appropriated in one of the following ways: (a) by princes or seigneurs; 
(b) by towns (either as economically active or merely regulating organ* 
izations); (c) by associations of workers, such as guilds (as "regulating" 
groups), without the development, in any of them, of a unified produc- 
tion organization (Betrjefe). 

In the first two cases, they were usually exploited as a source of 
income, a charge being made for their use. This has often been com- 
bined with interdiction of rival facilities and the compulsory use of those 
belonging to the lord- Each production unit would make use of the facil- 
ities in turn, according to need or, under certain circumstances, it was 
made the monopoly of a closed regulative group. Baking ovens, various 
kinds of grinding mills for grain or oil, fulling mills, polishing installa- 
tions, slaughter-houses, dye-works, bleaching installations, forges — which 
were usually, to be sure, leased — , breweries, distilleries, other installa- 
tions including particularly shipyards in the possession of the Hanseatic 
towns, and all kinds of market sfe'ls have been appropriated in this 
precapitalistic way, to be exploited by allowing workers to use them in 
return for a payment; they were thus used as part of the Budgetary 
wealth (Verindgen), rather than as capital of the owners (individuals 
or organizations, including town corporations). This type of production 
and budgetary exploitation of fixed installations as a source of invest- 
ment income for the owning individual or group, or possibly production 
by a producers' co-operatiye group, has preceded the creation of "fixed 
capital" of individual business units. Those using such installations have 
tended to treat them in part as means of meeting their own household 
needs, especially in the case of baking ovens and of brewing and dis- 
tilling installations, and in part for profit-making operations. 

IV. For maritime transport the typical arrangement in the past has 
been the appropriation of the ship by a plurality of owners, who tended , 
to become more and more sharply differentiated from the actual sea- 
farers. The fa^t that the organization of maritime enterprise then tended 
to develop into a system of risk-sharing with shippers, in which ship 
owners, officers, and even the crew, were associated as shippers of 
freight, did not, however, produce any fundamentally new forms of 
appropriation. It affected only the forms of setding accounts and hence 

- the distribution of profit-making possibilities. 

j- V. Today, it is usual for the installations of all kinds and the tools 
to be appropriated under one controlling agency, as is essential to the 
modem factory; but in earlier times, this has been exceptional. In partic- 
ular, the economic character of the Greek and Byzantine ergasterion and 
the corresponding Roman ergastulwn has been highly ambiguous, a fact 
which historians have persistently ignored^ It was a "workshop" which 
might, (i) be a part of a budgetary unit in which slaves would carry 
out production for the owner's own needs, as for the needs of a landed 
estate, or subsidiary production of goods for sale. But 00 the workshop 
might also be used as a source of rent revenue, part of the holdings of a 
private individual or of an organization, which latter might be a town, 



20 ] Apfropriation of Material Means of Production 135 

as was true of the ergasteria of the Piraeus. Such ergasteria would then 
be leased to individuals or to organized closed groups of workers. Thus, 
when it is stated that an ergasterion was exploited, especially a municipal 
one, it is always necessary to inquire further to whom it belonged 
and who was the owner of the other means of production necessary for 
the work process. Did free labor work there? Did they work for their 
own profit? Or did slaves work there, in which case it is necessary to know 
who their owners were, and whether they were working on their own 
account, making faofapd payments to their master, or directly for their 
master. According to the ways in which these questions are answered, 
the structure would be radically different from an economic point of 
view. In the great majority of cases, as late as the Byzantine and Mo- 
hammedan types, the ergasterion seems to have been primarily a source 
of rent revenue, and was hence fundamentally different from the modem 
factory or even its early predecessors. From an economic point of view, 
this category is/in its economic ambiguity, most closely comparable to 
the various types of mills found in the Middle Ages. 

VI. Even in cases where the workshop and the means of production 
are appropriated by an individual owner who hires labor, the situation is 
t not, from an economic point of view, necessarily what would usually 
be called a "factory" today. For this it would be necessary in addition to 
have the use of mechanical power, of machinery, and of an elaborate 
internal differentiation and combination of functions. The factory today 
is a category of the capitalistic economy. Hence in the present discussion 
the concept "factory" will be confined to a type of establishment which 
is at least potentially under the control of a profit-making firm with 
fixed capital, which thus takes the form of an organized workshop with 
internal differentiation of function, with the appropriation of all non- 
human means of production and with a high degree of mechanization of 
the work process by the use of mechanical power and machinery. The 
great workshop of "Jack of Newbury"** of the early sixteenth century, 
which was sung about by balladeers of a later day, did not have any of 
these features. It is alleged to have contained hundreds. of hand looms, 
which were his property and for the workers of which he bought the 
raw materials, and also all manner of "welfare" arrangements. But each 
, worker worked independently as if he were at home. Internal differenti- 
ation and combination of functions could, to be sure, exist in an Egyp- 
tian, Greek, Byzantine or Mohammedan ergasterion which a master 
worked with his unfree laborers. But the Greek texts show clearly that 
even in such cases is was common for the master to be content with the 
payment of an &wo<jiopd from each worker and perhaps a higher one 
from the foreman. This alone is sufficient to warn us not to consider 
such a structure economically equivalent to a factory or even to a work- 
shop like that of "Jack of Newbury." The closest approximation to the 
factory in the usual sense is found in royal manufactories, like the impe- 
rial Chinese porcelain manufactory and the European manufactories of 
court luxuries, which were modelled on it, and especially those for the 



I $6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Cfc. 11 

production of military equipment. No one can be blamed for calling 
these "factories." And the Russian workshops operating with serf labor 
seem at first sight to stand even closer to the modern factory. Here the 
appropriation of the workers themselves is added to that of the means of 
production. Neverthe&ss, for present purposes the concept "factory" will, 
for the reasons stated, be limited to organized workshops where the ma- 
terial means of production are fully appropriated by an owner, but the 
workers are not; where there is internal specialization of functions, and 
where mechanical power and machines which must be "tended" are. 
used. All other types of organized workshops will he designated by that 
word, with the appropriate adjectives. " '~ 



z i .* Social Aspects of the Divisiotfof Labor: The Appro- 
priation of Managerial Functions 

(0 In all cases of the management of traditional budgetary (house- 
hold) units, it is typical for the appropriation of managerial functions 
to take place either by the titular head himself, such as the head of the 
family or the kinship group, or by members of an administrative staff 
appointed for the management of the unit, as in the case of service fiefs 
of household officials. 

(2) In the case of profit-making enterprises, it occurs in the follow- 
ing situations: (a) When management and ordinary labor are entirely 
or very nearly identical. In this case there is usually also appropriation 
of the material means of production by the worker. This type of ap- 
propriation may be unlimited, that is, hereditary and alienable on the 
part of the individual, with or without a guaranteed market. It may, on 
the other hand, be appropriation to an organized group, with appropria- 
tion of the function by the individual restricted to personal tenure* 4 or 
subject to substantive regulation, thus limited and dependent on various 
conditions. Again, a market may or may not be guaranteed, (b) Where 
management and ordinary work are separated, there may be a monopo- 
listic appropriation of entrepreneurial functions in various possible forms, 
notably to closed membership groups, such as guilds, or to monopolies 
granted by the political authority. 

(3) In cases where managerial functions are, from a formal point of 
view, wholly unappropriated, the appropriation of the means of produc- 
tion or of the credit necessary for securing control over them is in prac- 
tice, in a capitalistic form of organization, identical with appropriation of 
control of management by the owners of the means of production. 
Owners can, in such cases, exercise their control by personally managing 
the business or by appointment of the actual managers. Where there is 



2i ] - Appropriation of Managerial Functions 137 

a plurality of owners, they will co-operate in the selection. These points 
are so obvious that there is no need of comment. 

Wherever there is appropriation of technically complementary means 
of production, it generally means, in practice, at least some degree of 
effective voice in the selection of management and, to a relative extent 
at least, the expropriation of the workers from management. The ex- 
propriation of the individual workers, however, does not necessarily 
imply the expropriation of workers in general. Though they are formally 
expropriated, it is possible for an association of workers to be in fact in a 
position to exact for itself an effective share in management or in the 
selection of managing personnel. 



22. The Expropriation of Workers from the Means of 
Production 

The expropriation of the individual worker from ownership of the 
means of production is determined by purely technical factors in the 
following cases: (a) if the means of production require the services of 
many workers, at the same time or successively; (b) if sources of power 
can be rationally exploited only by using them simultaneously for many 
similar types of work under a unified control; (c) if a technically rational 
organization of the work process is possible only by combining many 
complementary processes under continuous comrr.jn supervision; (d) if 
special technical training is needed for the management of co-ordinated 
processes of labor which, in turn, can only be exploited rationally on a 
large scale; (e) if unified control over the means of production and raw 
materials creates the possibility of subjecting labor to a stringent disci- 
pline and hence of controlling the speed of work and of attaining 
.standardization of effort and of product quality. 

These factors, however, do not exclude the possibility of appropria-. 
tion by an organized group of workers, a producers' co-operative. They 
necessitate only the separation of the individual worker from the means 
of production. 

The expropriation of workers in general, including clerical personnel 
and technically trained persons, from possession of the means of produc- 
tion has its economic reasons above all in the following factors : (a) The 
fact that, other things being equal, it is generally possible to achieve a 
higher level of economic rationality if the management has extensive 
control over the selection and the modes of use of workers, as compared 
with the situation created by the appropriation of jobs or die existence of 



I 3 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. 11 

rights to participate in management. These latter conditions produce 
technically irrational obstacles as well as economic irrationalities. In 
particular, considerations appropriate to small-scale budgetary administra- 
tion and the interests of workers in the maintenance of jobs ("livings") 
are often in conflict with the rationality of the organization, (b) In a 
market economy a management which is not hampered by any estab- 
lished rights of the workers, and which enjoys unrestricted control over 
the goods and equipment which underlie its borrowings, is of superior 
credit-worthiness. This is particularly true if the management consists of 
individuals experienced in business affairs and with a good reputation 
for "safety" derived from their continuous conduct of business. 00 From 
a historical point of view, the expropriation of labor has arisen since the 
sixteenth century in an economy characterized by the progressive ex- 
tensive and intensive expansion of the market system on the one hand, 
because of the sheer superiority and actual indispensability of a type of 
management oriented to the particular market situations, and on the 
other because of the structure of power relationships in the society. 

In addition to these general conditions, the effect of the fact that 
enterprise has been oriented to the exploitation of market advantages has 
in the following ways favored such expropriation: (a) because it put a 
premium on capital accounting — which can be effected in the tech- 
nically most rational manner only with full appropriation of capital 
goods to the owner — as against any type of economic behavior with less 
rational accounting procedures; (b) because it put a premium on the 
purely commercial qualities of the management, as opposed to the tech- 
nical ones, and on the maintenance of technical and commercial secrets; 
(c) because it favored a speculative business policy, which again requires 
expropriation. Further, and in the last analysis quite regardless of the 
degree of technical rationality, this expropriation is made possible, (d) 
by the sheer bargaining superiority which in the labor market any kind 
of property ownership grants vis-a-vis the workers, and which in the 
commodity markets accrues to any business organization working with 
capital accounting, owned capital equipment and borrowed funds vis-a- 
vis any type of competitor operating on a lower level of rationality in 
methods of calculation or less well situated with respect to capital and 
credit resources. The fact that the maximum of formal rationality in 
capital accounting is possible only whe*re the workers are subjected to 
domination by entrepreneurs, is a further specific element of substantive 
irrationality in the modern economic order. Finally, (e), a further 
economic reason for this expropriation is that free labor and the com- 
plete appropriation of the means of production create the most favorable 
conditions for discipline. 



23 ] Expropriation of Workers from Means of Production 139 

23. The Expropriation of Workers from the Means of 
Production — (Continued) 

The expropriation of all the workers from the means of production 
may in practice take the following forms: (1) Management is in the 
hands of the administrative staff of an organization. This would be true 
very particularly also of any rationally organized socialist economy, 
which would retain the expropriation of all workers and merely bring 
it to completion by the expropriation of the private owners. (2) Man- 
agerial functions are, by virtue of their appropriation of the means of 
production, exercised by the owners or by persons they appoint. The 
appropriation of control over the persons exercising managerial authority 
by the interests of ownership may have the following forms: (a) Man- 
agement by one or more entrepreneurs who are at the same time owners 
— the immediate appropriation of entrepreneurial functions. This situa- 
tion, however, does not exclude the possibility that a wide degree of 
control over the policies of management may rest in hands outside the 
'enterprise, by virtue of their powers over credit or financing — for in- 
stance, the bankers or financiers who finance^ the enterprise; (d) separa- 
tion of managerial functions from appropriated ownership, especially 
through limitations of the functions of owners to the appointment of 
management and through shared free (that is, alienable) appropriation 
of the enterprise as expressed by shares of the nominal capital (stocks, 
mining shares). This state, which is related to the purely personal form 
of appropriation through various types of intermediate forms, is rational 
in the formal sense in that it permits, in contrast to the case of permanent 
and hereditary appropriation of the management itself of accidentally 
inherited properties, the selection for managerial posts of the persons best 
qualified from the point of view of profitability. But in practice it may 
mean a number of things, such as: That control over the managerial 
position may come, through appropriation, into the hands of "outside 
interests" representing the resources of a budgetary unit, or mere wealth 
(Venndgen; see above, ch. II, sec. 10), and seeking above all a high rate 
of income; or that control over the managerial position comes, through 
temporary stock acquisitions, into the hands of speculative "outside in- 
terests" seeking gains only through the resale of their shares; or that 
disposition over the managerial position comes into the hands of outside 
business interests, by virtue of power over markets or over credit, such 
as hanks or "financiers," which may pursue their own business interests, 
often foreign to those of the organization as such. 

We call "outside interests" those which are not primarily oriented to 
the long-run profitability of the enterprise. This may be true of any kind 



140 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

of budgetary "wealth" interests. It is particularly true, however, of inter- 
ests' which consider their control over the plant and capital goods of the 
enterprise or of a share in it not as a permanent investment, but as a 
means of making a purely short-ran speculative profit. The types of out- 
side interest which are most readily reconciled with those of the enter- 
prise — that is, its interests in present and long-run profitability — are 
those seeking only income (rentiers). 

The fact that such "outside" interests can affect the mode of control 
over managerial positions, even and especially when the highest degree 
of formal rationality in their selection is attained, constitutes a further 
element of substantive irrationality specific to the modem economic 
order. These might be entirely private "wealth" interests, or business 
interests which are oriented to ends having no connection whatsoever 
with the organization, or finally, pure gambling interest. By gaining 
control of shares, all of these can control the appointment of the man- 
aging personnel and, more important, the business policies imposed on 
this management. The influence exercised by speculative interests out- 
side the producing organizations themselves on the market situation, 
especially that for capital goods, and thus on the orientation of the produc- 
tion of goods, is one of the sources of the phenomena known as the 
"crises" of the modern market economy. This cannot, however, be fur- 
ther discussed here. 



24. The Concept of Occupation and Types of 
Occupational Structure 

The term "occupation" (Berwf) will be applied to the mode of 
specialization, specification, and combination of the functions of an 
individual so far as it constitutes for him the basis of a continuous 
opportunity for income or earnings. The distribution of occupations 
may be achieved in the following ways: (1) by means of a heteronomous 
assignment of functions and of provisions for maintenance within an 
organization regulating economic activity — unfree differentiation of 
occupations — or through autonomous orientation to the state of the 
market for occupational services — free differentiation of occupations; 

(2) it may rest on the specification or the specialization of functions; 

(3) it may involve economic exploitation of the services by their bearers 
on either an autocephalous or a heterocephalous basis. 

The structure of occupational differentiation and that of opportuni- 
ties for business income are closely related. This will be discussed in 
relation to die problems of "class" and "status" stratification. 



24 ] "Occupation" & Types of Occupational Structure i 4 1 

On occupation as a basis of status, and on classes in general, see 
chap. IV, below." 

1. Unfree organization of occupations exists in cases where there is 
compulsory assignment of functions within the organization of a royal 
estate, a state, a feudal manor, or a commune on the basis of liturgies or 
of the oikos type of structure. The free type of distribution arises from 
the successful offer of occupational services on the labor market or suc- 
cessful application for free "positions." 

z. As was pointed out above in sec. 16, specification of functions 
was typical of the handicrafts in the Middle Ages; specialization is 
characteristic of the modem rational business organization. The distri- 
bution of occupations in a market economy consists to a large extent of 
technically irrational specification of functions, rather than of rational 
specialization of functions, because such an economy is oriented to- the 
market situation and hence to the interests of purchasers and consum- 
ers. This orientation determines [the uses to which] the entire bundle 
of labor services offered by a given productive unit will be put in a 
manner often different from the specialization of functions [of the given 
labor force], thus making necessary modes ot combination of functions 
which are technically irrational. 

4 3. Cases of autocephalous occupational specialization are the inde- 
pendent "business" of an artisan, a physician, a lawyer, or an artist. The 
factory worker and the government official, on the other hand, occupy 
heterocephalous occupational positions. 

The occupational structure of a given social group may vary in the 
following ways: (a) According to the degree in which well-marked and 
stable occupations have developed at all. The following circumstances 
are particularly important in this connection: the development of con- 
sumption standards, the development of techniques of production, and 
the development of large-scale budgetary units in the case of unfree oc- 
cupational organization, or of market systems in that of free organization; 
(b) according to the mode and degree of occupational specification of 
specialization of individual economic units. This will be decisively in- 
fluenced by the market situation for the services or products of special- 
ized units, which is in turn dependent on adequate purchasing power. 
It will also be influenced by the mode of distribution of control over 
' capital goods; (c) according to the extent and kind of continuity or 
change in occupational status. This in turn depends above all on two 
factors: on the one hand, on the amount of training required for the 
specialized functions, and on the other hand the degree of stability or 
instability of opportunities for earnings from them. Tne latter is in tu*n 
dependent on the type and stability of distribution of income and on the 
state of technology. 

Finally, it is always important in studying occupational structure to 
know the status stratification, with the attendant status-tied types of ed- 
ucation and other advantages and opportunities which it creates for cer- 
tain kinds of skilled occupations. '■■''■ 

It ts only functions which require a certain minimum of training and 



I 4 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

for which opportunity of continuous remuneration is available which 
become the objects of independent and stable occupations. The choice 
of occupation may rest on tradition, in which case it is usually hered- 
itary; on goal-oriented rational considerations, especially the possibility 
of returns; on charismatic or on affectual grounds; and finally, in partic- 
ular, on grounds of prestige with particular reference to status. Origi- 
nally, the more directly individual "callings" have been dependent 
primarily on charismatic (magical) elements, while all the rest of the 
occupational structure, so far as in a differentiated form it existed at all, 
was traditionally fixed. The requisite charismatic qualities, so Ear as they 
were not specifically personal, tended to become the object of a tradi- 
tional "training" in closed groups, or of hereditary transmission. Individ- 
ual occupations which were "not of a strictly charismatic character first 
appeared on a liturgical basis in the large-scale households of princes 
and landed lords, and then in the market economy of the towns. Along- 
side of this, however, a large role in their development was always 
played by the literary forms of education with a nigh status esteem, 
which arose in close connection with magical, ritual, or priestly ("cleri- 
cal") professional training. 

From what has been said it will be seen that occupational specializa- 
tion does not necessarily imply continuous rendering of services, either 
on a liturgical basis for an organization — in a royal household or a 
workshop — or for a completely free market. Other forms are not 
only possible but common: (1) Propertyless occupationally specialized 
workers may be employed on an occasional basis as needed in the 
service of a relatively stable group of either consumers in household 
units or employers in profit-making enterprises. In the case of work for 
households, we have the possibility of the expropriation from the worker 
of at least the raw materials (and hence of the control over the final 
product); services may be rendered on this basis either on the consumer's 
premises (Stor), whether it be by itinerant workers or by sedentary 
workers moving around the households of a local clientele, or on the 
workers' premises: shop or household ("wage work" [in Bucher's termi- 
nology] 46 ). In either case the consumer household provides the raw 
materials, but it is customary for the worker to own his took — the mower 
his scythe, the seamstress her sewing equipment, etc. The cases of Stdr 
involve temporary membership in the consumer's household. 

The case, contrasting with the above, in which the worker owns all 
means of production, Biicher terms "price work." 

Occupationally specialized workers may be employed on an oc- 
casional basis by profit-making enterprises when at least the raw material, 
and thus also control over the product, belongs to the employer. In this 
case there may be migratory labor for a variety of different employers in 
different units, or occasional or seasonal work for an employer, the work 



2,4 ] "Occupation" & Types of Occupational Structure i 4 3 

being done in the worker's own household. Migratory harvest labor is 
an example of the first type. The second type may be illustrated by any 
type of occasional work at home which supplements the work in the 
workshop. 

Occupational specialization without continuous engagement of the 
types noted above can also exist if: (2) Economic activity is conducted 
with appropriated means of production and CO there is capital account- 
ing and partial appropriation — especially, appropriation restricted to the 
fixed installations — by owners. Examples are workshops and factories 
transforming raw materials owned by others (Lohnfabriken') and, above 
all, factories producing under contract for an outside entrepreneur who 
takes charge of sales and other entrepreneurial functions (yerlegte 
Fabriken); the former have existed for a long time, while the latter have 
recendy become common. Or, if (ii) there is complete appropriation of 
the means of production by the workers, with the following possibilities: 
(a) in small-scale units without capital accounting, either producing for 
households ("price work" for customers), or producing for commercial 
enterprises. The latter is a case of domestic industry without expropria- 
tion of the means of production. The worker is formally a free craftsman, 
but is actually bound to a monopolistic group of merchants who are 
buyers for his product; (b) on a large scale with capital accounting and 
production for a fixed group of purchasers. This is usually, though not 
always, the result of market regulation by cartels. 

Finally, it must be pointed out that not every case of acquisitive 
action is necessarily part of an occupational profit-making activity; nor 
is it necessary that involvement in acquisitive action, however frequent, 
should imply a continuous specialization with 2 constant meaningful 
orientation. With respect to the first observation, we note that "occasional 
acquisition" is found as a result of the disposal of surpluses produced 
in a budgetary unit. Corresponding to these is occasional trading of goods 
by large-scale budgetary units, especially seigneurial estates. From this 
starting point, it is possible to develop a continuous series of possible 
"occasional acquisitive acts," such as the occasional speculation of a 
rentier, occasional publication of an article or a poem by a person who is 
not a professional author, and similar modem phenomena, to the case 
where such things constitute a "subsidiary occupaiton" ( Nebenberuf ). 

As to the second observation, it should be remembered that there are 
ways of making a living which are continually shifting and funda- 
mentally unstable. A person may shift continually from one type of 
"occasional" profitable activity to another; or even between normal 
legitimate earning and begging, stealing, or highway robbery. 

The Following must be treated in special terms: (a) Support from 






14 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. 11 

purely charitable sources; (b) maintenance in an institution on other 
than a charitable basis, notably a penal institution; (c) regulated acquisi- 
tion by force; and (d) criminal acquisition; that is, acquisition by force 
or Fraud in violation of the rules of an order. The cases of (b) and (d) 
are of relatively litde interest; (a) has often been of tremendous impor- 
tance for hierocratic groups, such as mendicant orders; while (c) has 
been crucial for many political groups in the form of the booty gained 
from war, and in both cases the economy was profoundly affected. It is 
characteristic of both these cases that they lie outside the realm of 
economic activity as such. Hence this is not the place to enter into a 
more detailed classification. The forms will be treated elsewhere. For 
reasons which are in part the same, the earnings of civil servants, in- 
cluding military officers, have been mentioned below (sec. 38) only in 
order to give them a place as a sub-type of the earnings of labor, but 
without going into the details. To do this, it would be necessary to dis- 
cuss the structure of relations of domination in the context of which 
these types of earnings are to be placed. 



2,4a. The Principal Forms of Appropriation and of 
Market Relationship 

According to the theoretical schemes which have been developed 
starting with sec. 15, the classification of the modes of appropriation in 
their technical, organizational aspects, and of the market relationships/is 
exceedingly complex. But actually, only a few of the many theoretical 
possibilities play a really dominant role. 

( l ) With respect to agricultural land : (a) There is the "ambulatory" 
cultivation by household units, which changes its location whenever the 
land has been exhausted. The land is usually appropriated by the tribe 
while its use is temporarily or permanently appropriated by neighbor- 
hood groups, with only temporary appropriation of the use of land to 
individual households. 

The extent of the household group may vary from the individual 
conjugal family, through various types of extended family groups, to 
organized kin groups or a widely extended household community. 
(Agriculture is "ambulatory" as a rule only in relation to arable land, 
much less commonly and at longer intervals for farmyard sites.) 

(b) Sedentary agriculture. The use of arable fields, meadows, pas- 
tures, woodland, and water is usually regulated by territorial or village 
associations for the smaller family household. Gardens and the land 



2^a ] Forms of Appropriation and of Market Relationship 1 4 5 

immediately-surrounding the buildings are normally appropriated by the 
immediate family; arable fields, usually meadows, and pastures, by the 
village organization; woodland, by more extensive territorial groups. 
Redistribution of land is usually possible according to the law, but has 
generally not been systematically carried through and is hence usually 
obsolete. Economic activities have generally been regulated by a system of 
rules applying to the whole village. This is a "primary village economy." 

It is only in exceptional cases, such as China, that the extended kin- 
ship group has constituted an economic unit. Where this is the case, it 
has generally taken the form of a rationalized organization, such as a 
clan association. 

(c) Seigneurial rights over land (Grundherrschaft) and persons 
(Leibherrsckaft~) with a central manor of the lord (Jrronhof*) and de- 
pendent peasant farms obligated to deliveries in kind and labor services. 
The land itself and the workers are appropriated by the lord, the use 
of the land and rights to work by the peasants. This is a simple case of 
manorial organization based on income in kind. 

t (d) Seigneurial or fiscal monopoly of control over the land, with col- 
lective responsibility of the peasant community for meeting fiscal obliga- 
tions. This leads to communal control over and regular systematic 
redistribution of the land. The land is, as a correlate of the fiscal burden, 
by decree permanently appropriated to the organized peasant community, 
not to the individual household; the latter enjoys only rights of use and 
these are subject to redistribution. Economic activity is regulated by the 
rules imposed by the manorial or the political lord! This is manorial or 
fiscal field community (_Feldgemeinsckaft). 

(e) Unrestricted seigneurial land proprietorship with exploitation of 
the dependent peasants as a source of rent income. The land is appropri- 
ated by the lord; but cohni* 7 sharecroppers, or tenants paying money 
rent carry out the actual economic activities. 

(f) The plantation. The land is freely appropriated and worked by 
purchased slaves. The owner uses both as means of profit-making in a 
capitalistic enterprise with unfree labor. 

(g) The "estate. economy" (GutswirtschafO. The land is appropri- 
ated to owners who either draw rent from it by leasing it to large-scale 
tenant farmers or farm it themselves for profit. In either case free labor 
is used, living in their own homesteads "or those supplied by the landlord, 
and — in both cases again — conducting some agricultural production or, 
in the marginal case, none at all on own account. 

(h) Absence of seigneurial ownership (Grundherrschaft): a peasant 
economy with appropriation of the land by the farmer (peasant). In 
practice this form of appropriation may mean that the land farmed is 



I 4 & SOCIOLOGICAL CATEGORIES OP ECONOMIC ACTION [ Ch. 11 

predominantly inherited land, or, on the other hand, that land lots are 
freely bought and sold. The former is typical of settlements with scattered 
farms and large-scale peasant proprietors; the latter, where setdement is 
in villages and the scale is small.** 

Where tenants pay a money rent and where peasant proprietors buy 
and sell land, it is necessary to presuppose an adequate local market for 
the products of peasant agriculture. 

(2) In the field of industry and transport, including mining, and of 
trade: 

(a) Household industry carried on primarily as a means of occasional 
exchange of surpluses, only secondarily as a means of profit. This may 
involve an inter-ethnic division of labor, out of which in turn caste oc- 
cupations have occasionally developed. In both cases appropriation of the 
sources of raw materials, and hence of the raw material production, is 
normal; purchase of raw materials and transformation of non-owned raw 
material ("wage work") are secondary phenomena. In the case of inter- 
ethnic specialization, formal appropriation is often absent. TheTe is, how- 
ever, generally, and in the case of caste, always, hereditary appropriation 
of the opportunities for earnings from specified functions by kinship or 
household groups. 

• (b) "Tied" craft production directly for customers: specification of 
functions in the service of an organized group of consumers. This may be 
a dominating group (oikos or seigneurial specification), or it may be a 
closed membership group (demiurgic specification). 

There is no market sale. In the first case, we find organization of 
functions on a budgetary basis, or of labor in a workshop, as in the 
ergasterion of the lord. In the second case, there is hereditary appropria- 
tion of the status of the workers which may, however, become alienable, 
and work is carried out for an appropriated group of customers (con- 
sumers). There are the following very limited possibilities of develop- 
ment: (i) Appropriated (formally unfree) workers who are carriers of 
specified functions — of a trade — may be used either as a source of income 
payments to their owner, in which case they are usually and in spite 
of their forma! servility substantively free, working in most cases directly 
for their own customers (rent slaves); or again, they might be used as 
unfree domestic craft producers, producing for the owner's profit; or, 
finally, as workers in the owner's workshop or ergasterion, also producing 
for profit, (ii) This may also develop into a liturgical specification of 
functions for fiscal purposes, similar to the type of caste occupations. 

In the field of mining, there are similar forms, notably the use of 
unfree labor, slaves or serfs, in productive units controlled by princes or 
seigneurial owners. 



24« ] Forms of Appropriation and of Market Relationship i 4 7 

In inland transportation, it is common for transportation installations 
[roads] to be appropriated by a seigneurial owner as a source of rent 
revenue. Maintenance services are then compulsorily imposed on spec- 
ified small peasant holdings. Another possibility is small-scale caravan 
trade regulated by closed membership groups. The traders would then 
appropriate the goods themselves. 

In the field of maritime transportation: (i) The ownership of ships 
by an oikos, a seigneur or a patrician trading on own account; (ii) 
co-operative construction and ownership of ships, captain and crew par- 
ticipating in trade on their own account, small travelling merchants con- 
stituting the shippers, all parties sharing the risks, and voyages made in 
strictly regulated "caravans." In all these cases "trade" was still identical 
with inter-local trade, that is, with transport. 

(c) Free non-agricultural trades. Free production for consumers in 
return for a wage, either on the customer's premises or on that of the 
worker. Usually the raw materials were appropriated by the customer, 
the tools by the worker, premises and installations, if any were involved, 
by a lord as a source of income or by organized groups with rights of use 
in rotation. Another possibility is that both raw materials and tools should 
be appropriated by the worker who thus managed his own work, whereas 
premises and stationary equipment belonged to an organized group of 
workers, such as a guild. In all these cases, it is usual for the regulation 
of profit-making activity to be carried on by guilds. 

In mining, deposits have usually been appropriated by political 
authorities or by seigneurial owners as sources of rent, while the rights 
of exploitation have been appropriated by organized groups of workers. 
Mining operations have been regulated on a guild basis with participation 
in the work an obligation of the members to the lord, who was interested 
in the rent, and to-the working group (BfirggenwincJe), which was collec- 
tively responsible to him and had an interest in the proceeds. 

In the field of inland transport, we find boatmen and teamster guilds 
' with fixed rotation of travel assignments among the members and regu- 
lation of their opportunities for profit. 

In the field of maritime transport, shared ownership of ships, travel- 
ling in convoys, and travelling merchants acting as commenda partners 
for businessmen staying at home are typical everywhere. 

There are the following stages in the development toward capitalism: 

(a) Effective monopolization of money capital by entrepreneurs, used 
as a means to make advances to labor. Connected with this is the assump- 
tion of powers of management over the process of production by virtue 
of the.extension of credit, and of control over the product in spite of the 
fact that appropriation of the means of production has continued for- 



148 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

mally in the hands of the workers, as in the handicrafts and in mining; 
(b) appropriation of the right of marketing products on the basis of 
previous monopolization both of knowledge of the market and hence" of 
market opportunities and of money capital. This was made possible by 
the imposition of a monopolistic system of guild regulation or by privi- 
leges granted by the political authority in return for periodical payments 
or for loans; (c) the subjective disciplining of workers who stood in a 
dependent relationship in the putting-out system, via the supply of raw 
materials and apparatus by the entrepreneur. A special case is that of the 
rational monopolistic organization of domestic industries on the basis 
of privileges granted in the interests of public finances or of the employ- , 
ment of the population. The conditions of work were thereby regulated by 
imposition from above as part of the concession which made profit-making 
activity possible, (d) the development of workshops without a rational 
specialization of labor in the process of production, by means of the ap- 
propriation by the entrepreneur of all the material means of production. 
In mining this included the appropriation by individual owners of 
mineral deposits, galleries, and equipment. In transportation, shipping 
enterprises fell into the hands of large owners. The universal result was 
the expropriation of the workers from the means of production; (e) the 
final step in the transition to capitalistic organization of production was 
the mechanization of the productive process and of transportation, and 
its orientation to capital accounting. All material means of production 
become fixed or working capital; all workers become "hands." As a result 
of the transformation of enterprises into associations of stock holders^ 
the manager himself becomes expropriated and assumes the formal status 
of an "official." Even the owner becomes effectively a trustee of the sup- 
pliers of credit, the banks. 

Of all these various types, the following instances may be noted : 
1. In agriculture, type (a), migratory agriculture, is universal. But 
the sub-type where the effective unit has been the large-scale household 
or kinship group, is found only occasionally in Europe, quite frequently 
in East Asia, particularly China. Type (b), sedentary agriculture with 
land-use-regulating village associations, has been common in Europe and 
India. Type (c), seigneurial rights over the land with restrictions due to 
mutual obligations, has been found everywhere and is still common in 
some parts of the Orient. Type (d), seigneurial or fiscal rights over the 
land with systematic redistribution of the fields by the peasants, has 
existed in the more seigneurial type in Russia and in a variant involving 
the redistribution of land rents in India,** and in the more fiscal form in 
East Asia, the Near East, and Egypt. Type (e), unrestricted seigneurial 
land ownership drawing rent from small tenants, is typical of Ireland, 



24a ] Forms of Appropriation and of Market Relationship i 4 9 

but also occurs in Italy, southern France, China, and the eastern parts 
of the Hellenistic world in Antiquity. Type (f), the plantation with un- 
free labor, was characteristic of Carthage and Rome in Antiquity, of 
modern colonial areas, and of the Southern States of the United States. 
Type (g), the "estate economy" in the form which involves separation 
of ownership and exploitation, has been typical of England; in the form 
of owner management, of eastern Germany, parts of Austria, Poland, 
and western Russia. Finally, type (h), peasant proprietorship, has been 
found in France, southern and western Germany, parts of Italy, Scandi- 
navia, with certain limitations in south-western Russia, and with modi- 
fications particularly in modern China and India. 

These wide variations in the forms which the organization of agricul- 
ture has finally assumed are only partially explicable in economic terms, 
that is, from such factors as the difference between the cultivation of 
forest clearings and of areas requiring irrigation. Special historical cir- 
cumstances played a large role, and especially the forms taken by political 
and fiscal obligations and military organization. 
v 2. In the field of industry, the following outline of the distribution 
of types may be given. Our knowledge of the situation in transportation 
and mining is not sufficiently complete to give such an oudine for those 
fields. 

(a) The first type, tribal crafts, has been found universally; (b) or- 
ganization on the basis of occupational castes became general only in 
India. Elsewhere it has existed only for occupations considered dis- 
creditable and sometimes ritually impure; (c) the organization of in- 
dustry on the basis of the oikos is found in all royal households in early 
times, but has been most highly developed in Egypt. It has also existed 
on seigneurial manors all over the world. Production by demiurgic crafts 
was occasionally found everywhere, including the Western World, but 
has developed into a pure type only in India. The special case of the use 
of control over unfree persons simply as a source of rent was common 
•in Mediterranean Antiquity. The liturgical specification of functions was 
characteristic of Egypt, of the Hellenistic period, of the later Roman 
Empire, and has been found at times in China and India; (d) the free 
handicraft organization with guild regulations is classically illustrated 
in the European Middle Ages and became the predominant form only 
there. It has, however, been found all over the world; and guilds, in 
particular, have developed very widely, especially in China and the Near 
East. It is notable, however, that this type was entirely absent from the 
economic organization of the period of Mediterranean "classical" An- 
tiquity. In India, the caste took the place of the guild. Of the stages in 
the development toward capitalism, only the second was reached on a 



I 5 o SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ch. II 

large scale outside the Western World. This difference cannot be ex- 
plained entirely in purely economic terms. 



25. Conditions Underlying the Cahuhhility of the 

Productivity of Labor 

1. In the three typical communist forms of organization, non- 
economic motives play a predominant part (see below, sec. 26). But 
apart from these cases, there are three primary conditions affecting the 
optimization of calculable performance by labor engaged in carrying out 
specifications: ,(a) The optimurn 'of aptitude for the function; (b) the 
optimum of skill acquired through' practice; CO die optimum of inclina- 
tion for the work, 

■ Aptitude, regardless of whether it is th£ product of hereditary or 
environmental and educational influences, can only be determined by 
testing. In business enterprises in a market economy this usually takes 
the form of a trial period. The Taylor system involves an attempt to work 
out rational methods of accomplishing this. 

Practice, and the resulting skill, can only be perfected by rational and 
/continuous specialization. Today, it is worked out on a basis which is 
largely empirical, guided by considerations of minimizing costs in the 
interest of profitability, and limited by these interests. Rational specializa- 
tion with reference to physiological conditions is only in its beginnings 
(witness again the Taylor system). 

Inclination to work may be oriented to any one of the ways which 
are open to any other mode of action (see above, ch. I, sec. 2). But in the 
specific sense of incentive to execute one's own plans or those of persons 
supervising one's work, it must be determined either by a strong self- 
interest in the outcome, or by direct or indirect compulsion. The latter is 
particularly important in relation to work which executes the dispositions 
of others. This compulsion may consist in the immediate threat of physi- 
cal force or of other undesirable consequences, or in the probability that 
unsatisfactory performance will have an adverse effect on earnings. 

The second type, which is essential to a market economy, appeals im- 
mensely more strongly to the worker's self-interest. It also necessitates 
freedom of selection according to performance, both qualitatively and 
quantitatively, though naturally from the point of view of its bearing on 
profit, In this sense it has a higher degree of formal rationality, from the 
point of view of technical considerations, than any kind of direct compul- 
sion to work. It presupposes the expropriation of the workers from the 



25 ] Conditions of CahufabUity of Labor Productivity i 5 1 

means of production by owners is protected by force. As compared with 
direct compulsion to work, this system involves the transferral, in addi- 
tion to the responsibility for reproduction (in the family), of part of the 
worries about selection according to aptitude to the workers themselves. 
Further, both the need for capital and the capital risks are, as compared 
with the use of unfree labor, lessened and made more calculable. Finally, 
through the payment of money wages on a large scale, the market for 
goods which are objects of mass consumption is broadened. 

Other things being equal, positive motives for work are, in the ab- 
sence of direct compulsion, not obstructed to the same extent as they are 
for unfree labor. It is true, however, that whenever technical specializa- 
tion has reached very high levels, the extreme monotony of operations 
tends to limit incentives to purely material wage considerations. Only 
when wages are paid in proportion to performance on a piece-rate basis 
is there an incentive to increasing productivity. In the capitalistic system, 
the most immediate bases of willingness to work are opportunities for 
high piece-rate earnings and the danger of dismissal, 
* The following observations may be made about the situation of free 
labor separated from the means of production: (a) Other things being 
equal, the likelihood that people will be willing to work on affectual 
grounds is greater in the case of specification of functions than in that of 
specialization of functions. This is true because the product of the indi- 
vidual's own work is more clearly evident. In the nature of the case, this 
is almost equally true wherever the quality of the product is important; 
(b) traditional motivations to work are particularly common in agricul- 
ture and in home industries — both cases where also the general attitude 
toward life is traditional. It is characteristic of this that the level of per- 
formance is oriented either to products which are stereotyped in quantity 
and quality or to a traditional level of earnings, or both. Where such an 
attitude exists, it is difficult to manage labor on a rational basis, and 
production cannot be increased by such incentives as piece rates. Ex- 
t perience shows, on the other hand, that a traditional patriarchal relation- 
ship to a lord or owner is capable of maintaining a high level of affectual 
incentive to work; (c) motivations based on absolute values are usually 
the result of religious orientations or of the high social esteem in which 
the particular form of work as such is held. Observation seems to show 
that all other sources of motivations directed to ultimate values are only 
transitional. 

It goes without saying that the "altruistic" concern of the worker for 
his own family is a typical element of duty contributing to willingness 
to work generally. 

2. The appropriation of the means of production and personal con- 



I 5 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck- 11 

trol, however formal, over the process of work constitute one of the 
strongest incentives to unlimited willingness to work. This is the funda- 
mental basis of the extraordinary importance of small units in agriculture, 
whether in the form of small-scale proprietorship or small tenants who 
hope to rise to the status of owner. The classical locus of this type of 
organization is China. The corresponding phenomenon in the function- 
ally specified skilled trades is most marked in India, but it is very im- 
portant in all parts of Asia and also in Europe in the Middle Ages. In 
the latter case, the most crucial conflicts have been fought out over the 
issue of formal autonomy of the individual worker. The existence of the 
small peasant in a sense depends directly on the absence of capital oc- 
counting and on retaining the unity of household and enterprise. His 
is a specified arid not a specialized function, and he tends both to devote 
more intensive labor to it and to restrict his standard of living in the 
interest of maintaining his formal independence. In addition, this system 
of agriculture makes possible the use of all manner of by-products and 
even "waste" in the household in a way which would not be possible in 
a larger farm unit. All the information we have available goes to show 
that capitalistic organization in agriculture is, where management is in 
the hands of the owner, far more sensitive to cyclical movements than 
small-scale peasant farming (see the author's figures in the Verhandlun- 
gen des deutschen juristentogs, vol. xxiv). *'* 

In industry, the corresponding small-scale type has retained its im- 
portance right up to the period of mechanization and of the most minute 
specialization and combination of functions. Even as late as the sixteenth 
century, as actually happened in England [1555], it was possible simply 
to forbid the operation of workshops like that of "Jack of Newbury" 
without catastrophic results for the economic situation of the workers, 
This was true because the combination in a single shop of looms, ap- 
propriated by one owner and operated by workers, could not, under the 
market conditions of the time, without any far-reaching increase in the 
specialization and co-ordination of labor functions, lead to an improve- 
ment in the prospect of profit for the entrepreneur large enough to 
compensate with certainty for the increase in risk and the cost of operat- 
ing the shop. Above all, in industry an enterprise with large investments 
in fixed capital is not only, as in agriculture, sensitive to cyclical fluctua- 
tions, but also in the highest degree to every form of irrationality — that 
is, lack of calculability — in public administration and the administration 
of justice, as it existed everywhere outside the modern Western World. 
It has hence been possible, as in the competition with the Russian "fac- 
tory" and everywhere else, for decentralized domestic industry to domi 
nate the field. This was true up to the point, which was reached before 



25 ] Conditions of Calculability of Labor Productivity i 5 3 

the introduction of mechanical power and machine tools, where, with 
the broadening of market opportunities, the need for exact cost account- 
ing and standardization of product became marked. In combination with 
technically rational apparatus, using water power and horse-gins, this 
led to the development of economic enterprises with internal specializa- 
tion. Mechanical motors and machines could then be fitted in. Until this 
point had been reached, it was possible for all the large-scale industrial 
establishments, which occasionally had appeared all over the world, to be 
eliminated again without any serious prejudice to the economic situation 
of all those involved in them and without any serious danger to the 
interest of consumers. This situation changed only with the appearance 
of the factory. But willingness to work on the part of factory labor has 
been primarily determined by a combination of the transfer of responsi- 
bility for maintenance to the workers personally and the corresponding 
powerful indirect compulsion to work, as symbolized in the English 
workhouse system, and it has permanently remained oriented to the com- 
pulsory guarantee of the property system. This is demonstrated by the 
marked decline in willingness to work at the present time which resulted 
from the collapse of this coercive power in the [1918] revolution. 



26. Forms of Communism 

Communist arrangements for the communal or associational organiza- 
tion of work which are indifferent to calculation are not based on a con- 
sideration of means for obtaining an optimum of provisions, but, rather, 
on direct feelings of mutual solidarity. They have thus tended histori- 
cally, up to the present, to develop on the basis of common value attitudes 
of a primarily non-economic character. There are three main types : ( 1 ) 
The household communism of the family, resting on a traditional and 
■ affectual basis; (2) the military communism of comrades in an army; (3) 
the communism based on love and charity in a religious community. 

Cases (2) and (3) rest primarily on a specific emotional or charis- 
matic basis. Always, however, they either (a) stand in direct conflict 
with the rational or traditional, economically specialized organization 
of their environment; such communist groups either work themselves 
or, in direct contrast, are supported purely by contributions from patrons, 
or both. Or (b) they may constitute a budgetary organization of privi- 
leged persons, ruling over other household units which are excluded 
from their organization, and are supported by voluntary contributions 
or liturgies of the latter. Or (c) finally, they are consumer household 



I 5 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. 11 

units, distinct from any profit-making enterprises but drawing income 
from them, and thus in an associative relationship with them. 

The first of these modes of support (a) is typical of communities 
based on religious belief or some Weltanschauung — such as monastic 
communities which renounce the world altogether or carry on commu- 
nal labor, sectarian groups and Utopian socialists. 

The second mode (b) is typical of military groups which rest on a 
wholly or partially communistic basis. Examples are the "men's bouse" 
in many primitive societies, the Spartan syssitia, the Ligurian pirate 
groups, the entourage of Calif Omar, the communism, in consumption 
and partly in requisitioning, of armies in the field in every age. A sim- 
ilar state of affairs is found in authoritarian religious groups — as in the 
Jesuit state in Paraguay and communities of mendicant monks in India 
and elsewhere. 

The third mode (c) is typical of family households in a market econ- 
omy. 

Willingness to work and consumption without calculation within 
these communities are a result of the non-economic attitudes character- 
istic of them. In the military and religious cases, they are to an appreci- 
able extent based on a feeling of separateness from the ordinary everyday 
world and of conflict with it. Modern communist movements are, so far 
as they aim for a communist organization of the masses, dependent on 
"value-rational" appeals to their disciples, and on arguments from expedi- 
ency (zweckrationaO in their [external] propaganda. In both cases, 
thus, they rest their position on specifically rational considerations and, 
in contrast to the military and religious communities, on considerations 
concerned with the everyday profane world. 10 Their prospects of success 
under ordinary conditions rest on entirely different subjective conditions 
than those of groups which are oriented to exceptional activities, to other- 
worldly values, or to other primarily non-economic considerations. 



27. Capital Goods and Capital Accounting 

The embryonic forms of capital goods are typically found in com- 
modities traded in inter-local [as against local] or inter-tribal exchange, 
provided that "trade" (see sec. 29) appears as an activity clearly distinct 
from the mere procurement of goods on a household (budgetary) basis. 
For the swapping (EigenkandeV) of household economies — trading-o£F 
of surpluses— ^cannot be oriented to capital accounting. The inter-tribally 
sold products of household, clan or tribal crafts are commodities, while 
the means of procurement, as long as they remain one's own output, are 



xj ] Cafital Goods and Cafital Accounting i 5 5 

only tools or raw materials, but not capital goods. The same goes for the 
market products and means of procurement of the peasant and the feudal 
lord as long as economic activity is not oriented to capital accounting, if 
only in its most primitive forms such as were incipient already in [the 
manual oh estate management of the elder] Cato. 

It is obvious that the internal movement of goods within the domain 
of a feudal lord or of an oifeos, including occasional exchange and the 
common Forms of internal exchange of products, is the antithesis of trade 
based on capital accounting. The trade engaged in by an oikos, like that 
of the Pharaohs, even when it is not concerned solely with provision for 
need and thus does not act as a budgetary unit but as one oriented to 
profit, is not for present purposes necessarily capitalistic. This would 
only be the case if it were oriented to capital accounting, particularly to 
an ex-ante estimate in money of the chances of profit from a transaction. 
Such estimates were made by the professional travelling merchants, 
whether they were engaged in selling on commenda basis for others, or 
in disposing of goods co-operatively marketed by an organized group. It 
is here, in the form of "occasional" enterprise, that the source of capital 
accounting and of the use of goods as capital is to be found. 

Human beings (slaves and serfs) and fixed installations of all types 
which are used by seigneurial owners as sources of rent are, in the nature 
of the case, only rent-producing household property and not capital 
goods, similar to the securities which today yield interest or dividends 
for a private investor oriented to obtain an income from his wealth and 
perhaps some speculative gains. Investment of this household type should 
be clearly distinguished from the temporary investment of business 
capital by an enterprise. Goods which a lord over land or persons receives 
from his dependents in payment of the obligations due him by virtue of 
his seigneurial powers, and then puts up for sale, are not capital goods 
for the present terminological purposes, but only commodities. In such 
cases capital accounting — and above all, estimates of cost — are lacking 
in principle, not merely in practice. On the other hand, where slaves are 
used in an enterprise as a means of profit, particularly where there is an 
organized slave market and widespread purchase and sale of slaves, they 
do constitute capital goods. Where corvee-based production units QVron- 
betriehe) work with a labor force of (hereditary) dependents who are 
not freely alienable and transferable, we shall not talk of capitalistic eco- 
nomic establishments, but of profit-making economic establishments with 
bound labor, regardless of whether we are dealing with agricultural pro- 
duction or unfree household industry. The decisive aspect is whether the 
tie is mutual — whether the lord is also bound to the worker. 

In industry, production for sale by free workers with their own raw 



I J 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

materials and tools ("price work") is a case of small-scale capitalistic 
enterprise. The putting-out industry is capitalistic, but decentralized; 
whereas every case of an organized workshop under capitalistic control is 
centralized capitalistic organization. All types of "wage Work" of oc- 
casional workers, whether in the employer's or in the worker's home, are 
mere forms of dependent work which are sometimes exploited in the 
interest of the budgetary economy, sometimes in the interest of the 
employer's profit. 

The decisive point is thus not so much the empirical fact, but rather 
the theoretical possibility of the use of capital accounting. 



28. The Concept of Trade and Its Principal Forms 

In addition to the various types of specialized and specified functions, 
which have already been discussed, every market economy (even, nor- 
mally, one subject to substantive regulation) knows another function: 
namely mediation in the process of disposing of a producer's own control 
over goods or acquiring such control from others. This function can be 
carried out tn any one of the following forms: ( 1 ) By the members of the 
administrative staff of an organized economic group, in return for pay- 
ments in kind or in money which are fixed or vary with the services 
performed; (2) by an organized group created especially to provide for 
the selling and purchasing needs of its members; (3) by the members of 
a specialized occupational group working for their own profit and remu-, 
nerated by fees or commissions without themselves acquiring control of 
the goods they handle; they act, that is, as agents, but in terms of a wide 
variety of legal forms; (4) by a specialized occupational group engaged 
in trade as a capitalistic profit-making enterprise (trade on own account). 
Such persons purchase goods with the expectation of being able to resell 
them at a profit, or sell for future delivery with the expectation of being 
able to cover their obligations before that date at a profitable figure. This 
may be done by buying and selling entirely freely in the market or sub- 
ject to substantive regulation; (5) by a continuous regulated process, 
under the aegis of an organized political group, of expropriation of goods 
against compensation and of voluntary or enforced disposal of these goods 
to customers, again against compensation: compulsory trade; (6) by the 
professional lending of money or procurement of credit for the purpose 
of effectuating business payments or for the acquisition of means of pro- 
duction on credit; such transactions may be with business enterprises or 
with other organized groups, particularly political bodies. The economic 



28 ] _ "Trade" and Its Principal Forms i 5 7 

function of the credit may be to finance current payments or the acquisi- 
tion of capita] goods. 

Cases (4) and (5), and only these, will he called "trade." Case (4) 
is "free" trade, case (5) "compulsory monopolistic" trade. 

Type (r) is illustrated for budgetary units by the negj*> ores and 
actores who have acted on behalf of princes, landlords, monasteries, etc, 
and for profit -ma king enterprises by various types of travelling salesmen; 
type (2) is illustrated by various kinds of co-operative buying and selling 
agencies, including consumers' co-operative societies; type (3) includes 
brokers, commission merchants, forwarding agents, insurance agents, 
and various other kinds of agents; type (4) is illustrated for the case of 
free market transactions by modern trade, and for the regulated case by 
various types of heteronomously imposed or autonomously agreed divi- 
sions of the market with an allocation of the transactions with certain 
customers or of the transactions in certain commodities, or by the sub- 
stantive regulation of the terms of exchange by the order of a political 
body or some other type of co-operative group; type C?) is illustrated by 
t the state monopoly of the grain trade. 



29. The Concept of Trade and Its Principal Forms — 
(Continued) 

Free trade on own account (type 4), which alone will be dealt with 
for the present, is always a matter of profit-making enterprise, never of 
budgetary administration. It is hence under all normal conditions, iT not 
always, a matter of earning money profits by contracts of purchase and 
sale. It may, however, be carried on (a) by an organization subsidiary 
to a budgetary economy, or (b) it may be an inseparable part of a 
total function through which goods are brought to a state of local 
consumability, ' 

Case (a) is illustrated by members of a budgetary unit designated 
specifically to dispose of surpluses of that unit's production on their own 
account. If, however, it is a matter simply of "occasional" sale by differ- 
ent members at different rimes, it is not even a subsidiary enterprise, but 
where the members in question devote themselves entirely and on their 
■ own financial responsibility to sale or purchase, it is an example of the 
type (4), though somewhat modified. If, on the other hand, they act for 
the account of the unit as a whole, it is a case of the type (1). 

Case (b) is illustrated by peddlers and other small traders who travel 
with their goods, and who thus primarily perform the function of trans- 
porting goods to the place of sale. They have hence been mentioned 
above in connection with the function of transportation. Travelling 
commends traders may be a transitional form between types (3) an d 



I 5 8 SOCIOLOGICAL CATEGORIES OP ECONOMIC ACTION [ Ch. II 

(4). Whether the transportation service is primary and the trading profit 
secondary, or vice versa, is generally quite indefinite. In any case, all 
persons included in these categories are 'traders." 

Trade on the individual's own account (type 4) is always carried on 
on the basis of appropriation of the means of procurement, even though 
his control may he made possible only by borrowing. It is always the 
trader who bears the capital risk on his own account; and, correspond- 
ingly, it is he who, by virtue of his appropriation of the means of pro- 
curement, enjoys the opportunity for profit. 

Specialization and specification of functions in the field of free trade 
on own account may take place in a variety of different ways. From an 
economic point of view, it is for the present most important to distinguish 
them according to the types of economic unit between which the mer- 
chant mediates: (i) Trade between households (budgetary units) with a 
surplus and other households which consume the surplus; GO trade be- 
tween profit-making enterprises, themselves producers or merchants, and 
households (budgetary units) which consume the product. The latter 
include, of course, all types of organizations, in particular, political 
bodies; (in) trade between one profit-making enterprise and another. 

The first two cases come close to what is usually called "retail trade," 
which involves sale to consumers without reference to the sources from 
which the goods were obtained. The third case corresponds to "wholesale 
trade." 

Trade may be oriented to the market or to customers. In the former 
case it may be a consumers' market, normally with the goods actually, 
present. It may, on the other hand, be a market for business enterprises, 
in which case the goods may actually be present, as at fairs and exposi- 
tions (usually though not necessarily, seasonal), or the goods may not 
be present, as in trade on commodity exchanges (usually, though not 
necessarily, permanent). If trade is oriented directly to customers, pro- 
viding for the needs of a relatively fixed group of purchasers, it may be 
to households (budgetary units), as in retail trade, or to profit-making 
enterprises. The latter may in turn be producing units or retail enter- 
prises or, finally, other wholesale enterprises. There may be various levels 
of middlemen in this sense, varying from the one nearest the producers 
to the one who sells to the retailer. 

According to the geographical source of the goods disposed of, trade 
may he "interlocal" or "local." 

The merchant may be in a position in fact to secure purchases on his 
own terms from the economic units which sell to him — putting-out trade. 
He may, on the other hand, be in a position to dictate the terms of his 
sales to the economic units which buy from him — traders' monopoly. 



20 ] "Trade" and Its Principal Forms (com.) i 5 9 

The first type is closely related to the putting-out organization of industry 
and is generally found combined with it. The second is "substantively 
regulated" trade, a variety of type (4). 

It goes without saying that every market-oriented business enterprise 
must dispose of its own goods, even if it is primarily a producing enter- 
prise. This type of marketing is not, however, "mediation" in the sense 
of the above definition so long as no members of the. administrative staff 
are specialized for this and only this purpose (such as travelling sales- 
man). Only then is a specialized "trading" function being performed. 
There are, of course, all manner of transitional forms. 

The calculations underlying trading activity will be called "specula- 
tive" to the extent to which they are oriented to possibilities, the realiza- 
tion of which is .regarded as fortuitous and is in this sense uncslculable. 
In this sense the merchant assumes the burden of "uncertainty." 31 The 
transition from rational calculation to what is in this sense speculative 
calculation is entirely continuous, since no calculation which attempts 
to forecast future situations can he completely secured against unexpected 
"accidental" factors. The distinction thus has reference only to a differ- 
ence in the degree of rationality. 

The forms of technical and economic specialization and specification 
of function in trade do not differ substantially from those in other fields. 
The department store corresponds to the factory in that it permits the 
most extensive development of internal specialization of function. 



29a. The Concept of Trade and Us Principal Forms — 
(Concluded^) 

The term "banks" will be used to designate those types of profit- 
making "trading" enterprise which make a specialized function of ad- 
ministering or procuring money. 

Money may be administered for private households by taking private 
deposit accounts and caring for the property of private individuals. It may 
also be administered for political bodies, as when a bank carries the 
account of a government, and for profit-making enterprise, by carrying 
business deposits and their current accounts. 

Money may be procured for the needs of budgetary units, as in ex- 
tending private consumption credit to private individuals, or in extending 
credit £0 political bodies. It may be procured for profit-making enterprises 
for the purpose of making payments to third persons, as in the creation 
of bills of exchange or the provision of checks or drafts for remittances. 
It may also be used to make advances on future payments due from 



I 6 O SOCIOLOGICAL CATEGORIES OP ECONOMIC ACTION [ Ch. II 

customers, especially in the form of the discounting of bills of exchange. 
It may, finally, be used to give credit for the purchase of capital goods. 

Formally, it is indifferent whether the bank (i) advances this money 
from its own funds or promises to make it available on demand, as in the 
provision for over-drafts of a current account, and whether the loan is or 
is not accompanied by a pledge or any other form of security provided by 
the borrower; or, (2,) whether the bank, by some type of guarantee or in 
some other manner, influences others to grant the funds. 

In practice, the business policy of banks is normally aimed to make 
a profit by relending funds which have been lent to them or placed at 
their disposal. 

The funds which a bank lends may be obtained from stocks of bul- 
lion or of coin from the existing mints which it holds on credit, or by its 
own creation of certificates (fcafcco-money) or of means of circulation 
(bank notes), or, finally, from the deposits of private individuals who 
have placed their money at its disposal. 

Whether a bank borrows on its own to obtain the funds it lends out 
or creates means of circulation, it must, if it is acting rationally, attempt 
to provide for coverage to maintain its liquidity — that is, it must keep a 
sufficient stock of cash reserves or arrange the tenns of credit granted in 
such a manner that it can always meet its normal payment obligations. 

As a rule, the observance of liquidity ratios by money-creating (i.e., 
note-issuing) banks is provided for in imposed regulations by organiza- 
tions (merchant guilds or political bodies). These regulations are at the 
same time usually designed to protect the chosen monetary system of an 
area as far as possible against changes in the substantive validity of the' 
money, and thus to protect the (formal) rationality of the economic cal- 
culations of budgetary units, above all those of the political body, and of 
profit-making enterprises against disturbances from (substantive) ir- 
rationalities. In particular, the most stable rate of exchange possible for 
one's own money against the monies of other monetary areas, with which 
trade or credit relations exist or are desired, is usually striven for. This 
type of monetary policy, which atfempts to control the factors of irration- 
ality in the monetary field, will, following G. F. Knapp, be called "lytric" 
policy. In the strictly laissez-faire state, this is the most important func- 
tion in the realm of economic policy which the state would undertake. 
In its rational form this type of policy is entirely restricted to the modern 
state. 

The policy measures of the Chinese with respect to copper and paper 
money and the Roman coinage policy will be discussed at the proper 
point, but they did not constitute a modem lytric monetary policy. Only 
the banco-money policy of the Chinese guilds, which formed the model 



29a ] "Trade" and Its Principal Forms (concl.) 1 6 1 

for the Hamburg hanco mark, came up to modern standards of -rational- 
ity." 

The term "financing" (Finanziervngsgeschafte') will be applied to all 
business transactions which are oriented to obtaining control, in one of 
the following ways, of favorable opportunities for profit-making by busi- 
ness enterprise, regardless of whether they are carried on by banks or by 
other agencies, including individuals, as an occasional source of profit 
or as a subsidiary enterprise, or as part of the speculative operations of a 
"financier": (a) through the transformation of rights to appropriated 
profit opportunities into securities or other negotiable instruments, and 
by the acquisition of these securities, either directly or through such 
subsidiary enterprises as are described below under (c); (b) by the sys- 
tematic tender (or, occasionally, refusal) of business credit; (c) through 
compulsory joining, if necessary or desired, of hitherto competing enter- 
prises, either (i) in the form of monopolistic regulation of enterprises 
at the same stage of production (cartellization), or (ii) in the form of 
monopolistic fusion under one management of hitherto competing enter- 
prises for the purpose of weeding out the least profitable ones (merger), 
or (iii) in the not necessarily monopolistic form of the fusion of special- 
ized enterprises at successive stages of a production process (vertical com- 
bination), or finally (iv) in the form of an attempted domination of 
many enterprises through operations with their shares (trusts, holding 
companies) or the creation of new enterprises for the purpose of increas- 
ing profits or merely to extend personal power (financing as such). 

Of course, financing operations are often carried out by banks and, 
as a general rule, unavoidably involve their participation. But the main 
control often lies in the hands of stock brokers, like Harriman, or of 
individual large-scale entrepreneurs in production, like Carnegie. The 
formation of cartels is also often the work of large-scale entrepreneurs, 
like Kirdorf; while that of trusts is more likely to be the work of "finan- 
ciers," like Gould, Rockefeller, Stinnes, and Ratbenau. This will be 
further discussed below. 



30. The Conditions of Maximum Formal Rationality of 
Capital Accounting 

The following are the principal conditions necessary for obtaining a 
maximum of formal rationality of capital accounting in production enter- 
prises: (1) complete appropriation of all material means of production 
by owners and the complete absence of all formal appropriation of op- 
portunities for profit in the market; that is, market freedom; (2) complete 



I 6 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. 11 

autonomy in the selection of management by the owners, thus complete 
absence of formal apptopriation of rights to managerial functions; (3) 
complete absence of appropriation of jobs and of opportunities for earn- 
ing by workers and, conversely, the absence of appropriation of workers 
by owners. This implies free labor, freedom of the labor market, and 
freedom in the selection of workers; (4) complete absence of substantive 
regulation of consumption, production, and prices, or of other forms of 
regulation which limit freedom of contract or specify conditions of ex- 
change. This may be called substantive freedom of contract; (5) com- 
plete calculability of the technical conditions of the production process; 
that is, a mechanically rational technology; (6) complete calculability of 
the functioning of public administration and the legal order and a 
reliable purely formal guarantee of all contracts by the political authority. 
This is a formally rational administration and law; (7) the most complete 
separation possible of the enterprise and its conditions of success and 
failure from the household or private budgetary unit and its property 
interests. It is particularly important that the capital at the disposal of the 
enterprise should be clearly distinguished from the private wealth of the 
pwners, and should not be subject to division or dispersion through 
inheritance. For large-scale enterprises, this condition tends to approach 
an optimum from a formal point of view: in the fields of transport, 
manufacture, and mining, if they are organized in corporate form with 
freely transferrable shares and limited liability, and in the field of agri- 
culture, if there are relatively long-term leases for large-scale production 
units; (8) a monetary system with the highest possible degree of formal 
rationality. 

Only a few points are in need of comment, though even these have 
already been touched on, 

CO With respect to the freedom of labor and of jobs from appropri- 
ation, it is tru ■* that certain types of unfree labor, particularly full-fledged 
slavery, have guaranteed what is formally a more complete power of 
disposal o-°r the worker than is the case with employment for wages. 
But there are various reasons why this is less favorable to rationality 
and efficiency than the employment of free labor: (a) The amount of 
capital which it was necessary to invest in human resources through 
the purchase and maintenance of slaves has been much greater than that 
required by the employment of free labor; (b) the capital risk attendant 
on slave ownership has not only been greater, but specifically irrational 
in that slave labor has been exposed to all manner of non-economic in- 
fluences, particularly to political influence in a very high degree; (c) 
the slave market and correspondingly the prices of slaves have been par- 
ticularly subject to fluctuation, which has made a balancing of profit 
and loss on a rational basis exceedingly difficult; (d) for similar reasons, 



30 ] Formal Rationality of Capital Accounting i 6 3 

particularly involving the political situation, there has been a difficult 
problem of recruitment of slave labor forces; (e) when slaves have been 
permitted to enjoy family relationships, this has made the use of slave 
labor more expensive in that the owner has had to bear the cost of main- 
taining the women and of rearing children. Very often, he has had no 
way in which he could make rational economic use of these elements as 
part of his laboi force; (f) hence the most complete exploitation of slave 
labor has been possible only when they were separated from family rela- 
tionships and subjected to a ruthless discipline. Where this has hap- 
pened it has greatly accentuated the difficulties of the problem of recruit- 
ment; (g) it has in general been impossible to use slave labor in the 
operation of tools and apparatus, the efficiency of which required a high 
level of responsibility and of involvement of the operator's self-interest; 
(h) perhaps most important of all has been the impossibility of selection, 
of employment only after trying out in the job, and of dismissal in ac- 
cordance with fluctuations of the business situation or .when personal 
efficiency declined. 

Hence the employment of slave labor has only been possible in gen- 
era! under the following conditions: (a) Where it has been possible to 
» maintain slaves very cheaply; (h) where there has been an opportunity 
for regular recruitment through a well-supplied slave market; (c) in 
agricultural production on a large scale of the plantation type, or in very 
simple industrial processes. The most important examples of this type 
of relatively successful use of slaves are the Carthaginian and Roman 
plantations, those of colonial areas and of the Southern United States, 
and the Russian "factories." The drying up of the slave market, which 
resulted from the pacification of the Empire, led to the decay of the 
plantations of Antiquity. 58 In North America, the same .situation led to 
a continual search for cheap new land, since it was impossible to. meet 
the costs of slave:: and pay a land rent at the same time. In Russia, the 
serf ''factories" were barely able to meet the competition of the kustar 
type of household industry and. were totally unable to compete with free 
factory labor. I'-ven before the emancipation of the serfs, petitions for 
permission to dismiss workers were common, and the factories decayed 
with the introduction of shops using free labor. 

When workers are employed for wages, the following advantages^ 
industrial profitability and efficiency are conspicuous: (a) Capital risk 
and the necessary capital investment are smaller; (b) the costs of re- 
production and of bringing up children fall entirely on the worker. His 
wife and children must seek employment on their own account; (c) 
largely for this reason, the risk of dismissal is an important incentive to 
the maximization of production; (d) it is possible to select the labor 
force according to ability and willingness to work. 

(2) The following comment may be made on the separation of en- 
terprise and household. The separation in England of the producing 
farm enterprise, leasing the land and operating with capital accounting, 
from the entailed ownership of the land is by no means fortuitous, but 



164 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. U 

is die outcome of an undisturbed development over centuries which 
was characterized by the absence of an effective protection of the status 
of peasants. This in turn was a consequence of the country's insular 
position. Every joining of the ownershif of land with the cultivation of 
the land turns the land into a capital good for the economic unit, thus 
increasing the capita] requirements and the capital risks of this unit. It 
impedes the separation of the household from the economic establish- 
ment; the settlements paid out at inheritance, for instance, burden the 
resources of the enterprise. It reduces the liquidity of the entrepreneur's 
capital and introduces a number of irrational factors into his capital ac- 
counting. Hence the separation of landownership from the organization 
of agricultural production is, from a formal point of view, a step which 
promotes the rationality of capital accounting. It goes without saying, 
however, that any substantive evaluation of this phenomenon is quite 
another matter, and its conclusions may be quite different depending on 
the values underlying the judgment. 



31. The Principal Modes of Capitalistic Orientation of 
Profit- Making 

The "capitalistic" orientation of profit-making activity (in the case of 
rationality, this means: the orientation to capital accounting) can take 
a number of qualitatively different forms, each of which represents a 
definite type: 

1 . It may be orientation to the profit possibilities in continuous buy- 
ing and selling on the market ("trade") with free exchange — that is, 
absence of formal and at least relative absence of substantive compulsion 
to effect any given exchange; or it may be orientation to the profit pos- 
sibilities in continuous production of goods in enterprises with capital 
accounting. 

2. It may be orientation to the profit possibilities in trade and specu- 
lation in different currencies, in the taking over of payment functions 
of all sorts and in the creation of means of payment; the same with 
respect to the professional extension of credit, either for consumption or 
for profit-making purposes. 

3. It may be orientation to opportunities for predatory profit from 
political organizations or persons connected with politics. This includes 
the financing of wars or revolutions and the financing of party leaders 
by loans and supplies. 

4. It may be orientation to the profit opportunities in continuous 
business activity which arise by virtue of domination by force or of a 
position of power guaranteed by the political authority. There are two 



3 1 ] _, Modes of Capitalistic Orientation of Acquisition i 6 5 

main sub-types: colonial profits, either through the operation of planta- 
tions with compulsory deliveries or compulsory labor or through monopo- 
listic and compulsory trade, and fiscal profits, through the farming of 
taxes and of offices, whether at home or in colonies. 

5. It may be orientation to profit opportunities in unusual transac- 
tions with political bodies. 

6. It may be orientation to profit opportunities of the following types: 
(a) in purely speculative transactions in standardized commodities or in 
the securities of enterprises; (b) in the execution of the continuous 
financial operations of political bodies; (c) in the promotional financing 
of new enterprises in the form of sale of securities to investors; (d) in 
the speculative financing of capitalistic enterprises and of various other 
types of economic organization with the purpose of a profitable regula- 
tion of market situations or of attaining power. 

Types (0 and (6) are to a large extent peculiar to the modern West- 
em World. The other types have been common all over the world for 
thousands of years wherever the possibilities of exchange and money 
economy (for type 2) and money financing (for types 3-5) have been 
present. In the Western World they have not had such a dominant 
importance as modes of profit-making as they had in Antiquity, except 
in restricted areas and for relatively brief periods, particularly in times 
of war. Where large areas have been pacified for a long period, as in the 
Chinese and later Roman Empire, these types have tended to decline, 
leaving only trade, money changing, and lending as forms of capitalistic 
acquisition. For the capitalistic financing of political activities was every- 
where the product of the competition of states with one another for 
power, and of the corresponding competition for capital which moved 
freely between them. All this ended only with the establishment of the 
unified empires. 

The point of view here stated has, if the author's memory is accurate, 
been previously put forward in the clearest form by j. Plenge in his , 
Von der Diskontpolitik zut Herrschaft tiber den Geldmarkt (Berlin 
1913). Before that a similar position seems to have been taken only m 
the author's article, "Agrarverhaltnisse im Altertum," 1909 [reprinted in 
GAzSW, 1914; cf. 2758.] 

It is only in the modern Western World that rational capitalistic 
enterprises with fixed capital, free labor, the rational specialization and 
combination of functions, and the allocation of productive functions on 
the basis of capitalistic enterprises, bound together in a market economy, 
are to be found. In other words, we find the capitalistic type of organization 
of labor, which in formal terms is purely voluntary, as the typical and 
dominant mode of providing for the wants of the masses of the population, 



I 6 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

with expropriation of the workers from the means of production and ap- 
propriation of the enterprises by security owners. It is also only here 
that we find public credit in the form of issues of government securities, 
tlie "going public" of business enterprises, the floating of security issues and 
financing carried on as the specialized function of rational business 
enterprises, trade in commodities and securities on organized exchanges, 
money and capital markets, monopolistic organizations as a form of ra- 
tional business organization of the entrepreneurial production of goods, 
and not only of the trade in them. 

This difference calls for an explanation and the explanation cannot 
be given on economic grounds alone. Types (3) to (5) inclusive will be 
treated here together .as "politically oriented capitalism." The whole of 
the later discussiojp will be devoted particularly to the problem of explain- 
ing the difference. In general terms, it is possible only to make the fol- 
lowing statements: 

1 . It is clear from the very beginning that the politically oriented 
events and processes which open up these profit opportunities exploited 
by political capitalism are irrational from an economic point of view — 
that is, from the point of view of orientation to market advantages and 
thus to the consumption needs of budgetary units. 

2. It is further clear that purely speculative profit opportunities and 
pure consumption credit are irrational from the point of view both 
of want satisfaction and of the production of goods, because they are de- 
termined by the fortuitous distribution of ownership and of market ad- 
vantages. The same may also be true of opportunities for promotion and 
financing, under certain circumstances; but this is not necessarily always 
the case. 

Apart from the rational capitalistic enterprise, the modern economic 
order is unique in its monetary system and in the commercialization of 
ownership shares in enterprises through the various forms of securities. 
Both these peculiarities must be discussed — first the monetary system. 



32. The Monetary System of the Modern State and the 
Different Kinds of Money: Currency Money 

1. C a ) The modem*state has universally assumed the monopoly of 
regulating tbe monetary system by statute; and (b) almost without ex- 
ception, the n ipoly of creating money, at least for coined money. 

Originally, purely fiscal considerations were decisive in the creation 
of this monopoly — seigniorage Cminting fees) and other profits from 



32 ] The Modern Monetary System, Currency Money 167 

coinage. This was the motive for the prohibition of the use of foreign 
money. But the monopolization of issue of money has not been universal 
even up into the modern age. Thus, up until the currency reform [of 
1871-1873] foreign coins were current in Bremen. 

(c) With the increasing importance of its taxation and its own eco- 
nomic enterprises, the state has become both the largest receiver and the 
largest maker of payments in the society, .either through its own pay 
offices or through those maintained on its behalf. Quite apart from the 
monopoly of monetary regulation and issue, because of the tremendous 
importance of the financial transactions of the state the behavior of the 
state treasurers in their monetary transactions is of crucial significance 
for the monetary system — above all, what kind of money they actually ■ 
have at hand and hence can pay out, and what kind of money they force 
on the public as legal tender, and further, what kind of money they 
actually accept and what kind they partially or fully repudiate. 

Thus, paper money is partialiy repudiated if customs duties have to 
be paid in gold, and was fully repudiated (at least ultimately) in the 
case of the assignats of the French Revolution, the money of the Con- 
federate States of America, and that issued by the Chinese Government 
during the Tai Ping Rebellion. 

In terms of its legal properties, money can be defined as a "legal 
means of payment" which everyone, including also and especially the 
public pay offices, is obligated to accept and to pay, either up to a given 
amount or without limit. In terms of the behavior of the state (regi- 
minal) it may be defined as that money which public pay offices accept 
in payment and for which they in turn enforce acceptance in their pay- 
ments; legal compulsory money is that money, in particular, which they 
impose in their payments. The "imposition" may occur by virtue of exist- 
ing legal authority for reasons of monetary policy, as in the case of the 
[German silver] Taler and the [French silver] five-franc piece after the 
discontinuance — as we know, never really put into effect — of the coining 
of silver [1871 and 1876]; or it may occur because the state is incapable 
of paying in any other means of payment. In the latter case, an existing 
legal authority to enforce acceptance may now be employed for the first 
time, or an ad hoc legal authority may be created, as is almost always true 
in cases of resort to paper money. In this last case, what usually happens 
is that a means of exchange, which was previously by law or de facto 
redeemable in definitive money, whether its acceptance could be legally 
imposed or not, will now be de facto imposed and by the same token be- 
come de facto unredeemable. 

By passing a suitable law, a state can turn any object into a "legal 



I 6 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

means of payment" and any chartal object into "money" in the sense of 
a means of payment. It can establish for them any desired set of "value 
scales" or, in the case of "market money," "currency relations" [see above, 
ch. II, sec. 6]. There are, however, certain formal disturbances of the 
monetary system in these cases which the state can either not suppress at 
all or only with great difficulties', 

(a) In the case of administrative money, the forgery of notes, which 
is almost always very profitable; and (b) with all forms of metallic 
money, the non-monetary use of the metal as a raw material, where its 
products have a high value. This is particularly true when the metal in 
question is in an undervalued currency relation to others. It is also, in 
the case of market money, exceedingly difficult to prevent the export of 
the coins to other countries where that currency metal has a higher value. 
Finally, it is difficult to compel the offer of a legal monetary metal for 
coinage where it is undervalued with respect to the currency money 
(coins or paper). 

With paper money the rate of exchange of one currency unit of the 
metal with its nominal equivalent of paper always becomes too un- 
favorable for the metal when redeemability of the notes is suspended, 
and this is what happens when it is no longer possible to make payments 
in metal money. 

The exchange ratios between several kinds of market money may be 
determined (a) by fixing the relation for each particular case; (b) by 
establishing rates periodically; and (c) by legal establishment of per- 
manent rates, as in bimetallism. 

In cases (a) and (b) it is usual that only one metal is the effective 
currency (in the Middle Ages it was silver), while the others are used 
as trading coins with varying rates. The complete separation of the spe- 
cific modes of use of different types of market money is raTe in modem 
monetary systems, but has at times been common, as in China and in 
■ the Middle Ages. 

2. The definition of money as a legal means of payment and as the 
creature of the "lytric" administration of political bodies is, from a socio- 
logical point of view, not exhaustive. This definition, to put it in G. F. 
Knapp's words, starts from "the fact of the existence of debts,"' 4 espe- 
cially of tax debts to the state and of interest debts of the state. What is 
relevant for the legal discharge of such debts is the continuity of the 
nominal unit of money, even though the monetary material may have 
changed, or, if the nominal unit should change, the "historical defini- 
tion" of the new nominal unit. Beyond that, the individual today values 
the nominal unit of money as a certain proportional part of his nominal 
money income, and not as a chartal piece of metal or note. 



32 ] The Modern Monetary System. Currency Money i 6 9 

The state can through its legislation — or its administrative staff 
through the actual behavior of its pay offices — indeed dictate the formal 
validity of the "currency" of the monetary area which it rules. 

Provided, that is, that it employs modern methods of administration. 
It was not, however, possible at all times, for instance, in China. There 
in earlier times it has generally not been possible because payments by 
and to the government were too small in relation to the total held of 
transactions. Even recently it appears that the Chinese Government has 
not been able to make silver into a "limited money" currency with a 
gold feserve because it was not sufficiently powerful to suppress the 
counterfeiting which would undoubtedly have endued. 

However, it is not merely a matter of dealing with existing debts, but 
also with exchange in the present and the contraction of new debts to be 
paid in the future. But in this connection the orientation of the parties 
is primarily to the status of money as a means of exchange [see above, 
ch. II, sec, 6], and thus to the probability that it will be at some future 
time acceptable in exchange for specified or unspecified goods in price 
relationships which are capable of approximate estimate. 

1. Under certain circumstance, it is true, the probability that urgent 
debts can be paid off to the state or private individuals from the pro- 
ceeds may also be importandy involved. This case, may, however, be 
left out of account here because it only arises in emergency situations. 

2. In spite of the fact that it is otherwise absolutely correct and 
brilliantly executed, hence of permanently fundamental importance, it 
is at this point that the incompleteness of G. F. Knapp's Staatltche 
Theorie des Geldes becomes evident. 

Furthermore, the state on its part needs the money which it receives 
through taxation or from other sources also as a means of exchange, 
though not only for that purpose, but often in fact to a very large extent 
for the payment of interest on its debt. But its creditors, in the latter case, 
will then wish to employ it as a means of exchange; indeed this is the 
main reason why they desire money. And it is almost always true that 
. the state itself needs money to a large degree, sometimes even entirely, as 
a means of exchange to cover future purchases of goods and supplies in , 
the market. Hence, however necessary it is to distinguish it analytically, 
it is not, after all, the fact that money is a means of payment which is 
decisive. 

The exchange possibility of money against other specific goods, which 
rests on its valuation in relation to marketable goods, will be called its 
"substantive" validity, as opposed to its formal, legal validity as a means 
of payment and the frequently existing legal compulsion for its formal 
u** as ^ means of exchange. 



I 7 O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

In principle, as an observable fact, a monetary unit has a substantive 
valuation only in relation to definite types of goods and only for each 
separate individual as his own valuation on the basis of the marginal 
utility of money for him, which will vary with his income. This marginal 
utility is changed for the individual with any increase in the quantity of 
money at his disposal. Thus the marginal utility of money to the issuing 
authority falls, not only, but above all, when it creates administrative 
money and uses it for obtaining goods by exchange or forces it on the 
public as a means of payment. There is a secondary change in the same 
direction for those persons who deal with the state and who, because of 
the higher prices resulting from the lowered marginal utility of money 
to public bodies, become the possessors of larger money stocks. The 
"purchasing power" now at their disposal — that is, the lowering of the 
marginal utility of money for these possessors — can in turn result in an 
increase in prices paid to those from whom they purchase, etc. If, on 
the other hand, the state were to withdraw from circulation part of the 
notes it receives — that is, if it should not pay them out again, but destroy 
them — the result would be that the marginal utility of money of its 
lessened money stocks would rise, and it would have to curtail its ex- 
penditures correspondingly, that is, it would reduce its demand prices 
appropriately. The results would be the exact opposite of those just out- 
lined. It is hence possible for administrative money, though by no 
means only this, to have an important effect on the price structure in 
any given monetary area. (The speed at which this will occur and the 
different ways in which it affects different goods cannot be discussed 
here). 

3. A cheapening and increase in the supply, or vice versa, a rise in 
cost and curtailment of the supply in the production of monetary metals 
could have a similar effect in all countries using it for monetary purposes. 
Monetary and non-monetary uses of metals are closely interdependent, 
but the only case in which the non-monetary use of the metal has been 
decisive for its valuation as money has been that of copper in China. 
Gold will enjoy an equivalent valuation in the nominal unit of gold 
money less costs of coining as long as it is used as a means of payment 
between monetary areas and is also the market money in the monetary 
areas of the leading commercial powers. In the past this was true also of 
silver and would be today if silver were still in the same position as 
gold. A metal which is not used as a means of payment between mone- 
tary areas, but constitutes market money in some of them, will naturally 
have a definite value in terms of the nominal monetary unit of those- 
areas. But these in turn will, according to the costs of adding to the sup- 
ply and according to the quantities in circulation, and, finally, according 



32 ] The Modern Monetary System. Currency Money i 7 r 

to the so-called "balance of payments," have a fluctuating exchange re- 
lationship to other currencies. Finally, a precious metal which is uni- 
versally used for restricted coinage into administrative money, but not as 
market money, is primarily valued on the basis of its non-monetary use. 
The question is always whether the metal in question can be profitably 
produced and at what rate. When it is completely demonetized, this 
valuation depends entirely on its money cost of production reckoned in 
international means of payment in relation to the non-monetary demand 
for it. If, on the other hand, it is used universally as market money and 
as an international means of payment, its valuation will depend on costs 
in relation primarily to the monetary demand for it. When, finally, it has 
a limited use as market or administrative money, its valuation will be 
determined in the long run by whichever of the two demands for it, as 
expressed in terms of international means of payment, is able to afford 
better to pay the costs of production. If its use as market money is 
limited to a particular monetary area, it is unlikely in the long run that 
its monetary use will be decisive for the valuation, for the exchange rate 
of such special -standard areas to other monetary areas will tend to fall, 
and it is only when international trade is completely cut off— as in China 
and Japan in the past, and in the areas still actually cut off from each 
other after the war today — that this will not affect domestic prices. The 
same is true for the case of a metal used as regulated [i.e., limited 
coinage] administrative money; the stricdy limited possibility of the use 
of the metal as money could be decisive for its valuation only if it would 
be minted in great quantities. The long-run outcome would in this case, 
however, be similar to that of a metal used as market money only in a 
restricted area. 

Though it was temporarily realized in practice in China, the monop- 
olization of the total production and use of a monetary metal is essen- 
tially a theoretical, limiting case. If several competing monetary areas 
• are involved and wage labor is used, it does not alter the situation as 
much as possibly might be expected. For if all payments bv government 
agencies were made in terms of this metal, every attempt to limit its 
coinage or to tax it very heavily, which might well yield large profit, 
would have the same result as it did in the case of the very high Chinese 
seigniorage. First, in relation to the metal the monev would become 
very highly valued, and if wage labor were used, mining operations 
would to a large extent become unprofitable. As the amount in circula- 
tion declined, there would result a "contra-inflation"; and it is possible, 
as actually happened in China where this led at times to complete 
freedom of coinage, that this would go so far as to induce the use of 
money substitutes and a large extension of the area of natural economy. 
This also happened in China. If a market economy were to be main- 



I 7 2. SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

tained, it would be hardly possible for monetary policy in the long run 
to act otherwise than as if free coinage were legally in force. The only 
difference is that minting would no longer be left to the initiative of 
interested parties. With complete socialism, on the other hand, the 
problem ot money would cease to be significant and the precious metals 
would hardly be produced at all. 

4. The fact that the precious metals have normally become the 
monetary standard and the material from which money is made is his- 
torically an outcome of their function as ornaments and hence, spe- 
cifically, as gifts. But apart from purely technical factors, this use was 
also determined by the fact that they were goods which were typically " 
dealt with by weight. Their maintenance in this function is not at first 
sight obvious since today, for all except the smallest payments, everyone 
normally uses notes, especially bank-notes, and expects to receive them 
in payment. There are, however, important motives underlying retention 
of metal standards. 

5. In all modern states, not only is the issue of money in the form 
of notes legally regulated, but it is monopolized by the state. It is either 
carried out directly by the state itself, or by one or a few issuing agencies 
enjoying special privileges but subject to the control of the state — the 
banks of issue. 

6. The term "public currency money" (regiraiwa/es Kurantgeldy 5 
will be applied only to money which is actually paid out by public 
agencies and acceptance of which is enforced. On the other hand, any 
other money which, though not paid out under compulsory acceptance,' 
is used in transactions between private individuals by virtue of formal 
legal provisions, will be called "accessory standard money." Money 
which must legally be accepted in private transactions only up to a 
given maximum amount, will be called "change" (.Scheidegeld*). (This 
terminology is based on that of Knapp. This is even more definitely true 
in what follows.) 

"Definitive" currency money means public currency money; whereas 
any type of money is to be called "provisional" currency money so far 
as it is in fact effectively exchangeable for or redeemable in terms of 
definitive currency. 

7. In the long run, public currency money must naturally coincide 
with the effective currency. It cannot be a possibly separate, merely 
"official" legal tender currency. Effective currency, however, is neces- 
sarily one of three things: (a) free market money; (b) unregulated; or 
(c) regulated administrative money. The public treasury does not make 
its payments simply by deciding to apply the rules of a monetary system 
which somehow seems to it ideal, but its'acts are determined by. its own 
financial interests and those of important economic groups. 



32 ] The Modern Monetary System. Currency Money i 7 3 

With regard to its chartal form, an effective standard money may be 
metallic money or note money. ss Only metallic money can he a free 
market money, but this is not necessarily the case for all metallic money. 

It is free market money when the lytric administration will coin any 
quantity of the standard metal or will exchange it for chartal coins — 
"hylodromy,"'' 7 According, then, to the precious metal which is chosen 
as the standard, there will be an effective gold, silver, or copper standard. 
Whether the lytric administration is in fact in a position to maintain an 
actual hylodromic system does not depend simply on its own desires, 
but on whether individuals are interested in presenting metal for coinage. 

It is thus possible for hylodromy to exist "officially" without existing 
"effectively." Whatever the official position may he, it is not effective 
(a) when, given hylodromy with several metals, one or more of these is 
at the official rate imdervalued with respect to the market price of the 
raw material. In that case, naturally, only the overvalued metal will be 
offered to the rmnt for coinage and to creditors in payments. If the public 
pay offices do not participate in this trend, the overvalued coins will pile 
up in their hands until they, too, have nothing else to offer in their pay- 
ments. If the price relation is rigidly enough maintained, the under- 
valued coins will then he melted down, or they will be exchanged by 
weight, as commodities, against the coins of the overvalued metal. 

(b) Hylodromy is also not effective if persons making payments, 
including especially public agencies under stress of necessity, continually 
and on a large scale make use of their formal right or usurped power to 
compel acceptance of another means of payment, whether metal or notes, 
which is not presently provisional [i.e. redeemable] money, but either has 
been accessory money or, if previously provisional, has ceased to be re- 
deemable because of the insolvency of the issuing agency. 

In case (a) hylodromy always ceases, and the same thing happens in 
case (b) when accessory forms of money or forms which are no longer 
effectively provisional are forced on the public persistently on a large 
scale. 

The outcome in case (a) is to confine the maintenance of the fixed 
rate to the overvalued metal, which then becomes the only free market 
money; the result is thus a new- metallic, standard. In case (b) the 
accessory metal or notes which are no longer effectively provisional be- 
come the standard money. In, the first case we get a "restricted money" 
standard; in the second, a paper standard. 

It is also possible for hylodromy to he effective without being official 
in the sense of being legally established. 

An example is the competition of the various coining authorities in 
the Middle Ages, determined by their fiscal interest in seigniorage, to 



I 7 4 SOCIOLOGICAL CATEGORIES OP ECONOMIC ACTION [ Ck. II 

mint as much as possible of the monetary metals. There was no formal 
establishment of hylodiomy at that time, but the actual situation was 
much as if there had been. 

In view of what has just been said, a "monometallic legal standard," 
which may be gold, silver, or copper, will be said to exist when one metal 
is by law hylodromic. A "multimetallic legal standard," on the other 
hand, exists when more than one metal is used (it may be two or three) 
and they are freely coined in a fixed ratio to each other. A "parallel legal 
standard" exists when several metals are freely coinable without a fixed 
ratio. A standard metal and a metallic standard will only be spoken of 
for that metal which is effectively hylodromic, and thus, in practice, con- , 
stitutes actual market money. 

Legally, all countries of the Latin Union were under bimetallism 
until the suspension of the free coinage of silver, which followed the 
German currency reform [1871]. But effectively, as a rule, only the 
metal which was for the time being overvalued was actually a standard 
metal. The legal stabilization of the exchange ratio, however, worked 
so. well that the change was often scarcely noted and there seemed to be 
effective bimetallism. But insofar as the ratio shifted, the coins of the 
undervalued money became accessory money. (This account of the mat- 
ter coincides closely with that of Knapp). At least where there is com- 
petition between several autocephalous and autonomous minting agen- 
cies, bimetallism is an effective monetary state only as a transitory 
phenomenon and is usually only a legal, as opposed to an effective, state 
of affairs. 

The fact that the undervalued metal is not brought to the mint is , 
naturally the result not of administrative action, but of the changed 
market situation in relation to the persistence of the legal coinage ratio 
of the metals. It would, of course, be possible for the mint to continue 
to coin that metal at a loss as administrative money, but since the non- 
monetary uses of the money are more profitable, it ould not be kept in 
circulation. 



3 3 . Restricted Money 

Any type of metallic money which is not hylodromic will be called 
"restricted money" (Sperrgeld) if it is currency money. Restricted money 
may circulate as accessory money; that is, having a fixed relationship to 
some other currency money in the same monetary area. This latter may 
be another form of restricted money, paper money, or a market money. 

Or restricted money may be oriented to an international standard. 
This is the case when it is the sole currency money in its own area, and 



33 ] Restricted Money 175 

provision is made for having international means of payment available 
for making payments abroad, either in coin or in bullion. This is a 
"convertible restricted money" standard with a reserve fund of foreign 
exchange. 

(a) Restricted money will be called "psrticular" when it is the only cur- 
rency money, but is not oriented to an international standard. 

Restricted money may then be valued internationally ad hoc each 
time international means of payment or foreign exchange is bought; or, 
when this is possible, it may be given a fixed relation to the international 
standard. Taters and silver five-franc pieces were restricted money with 
a fixed relation to the currency money of the same country; both were 
accessory money. The Dutch silver gulden has been oriented to the 
international gold standard after having been "particular" for a short 
time after the restriction of coinage, and now the rupee is in the same 
position. This is also true of the Chinese dollar which, since the coin- 
age regulation of 24 May 1910, is "particular" as long as hyiodromy, 
which is not mentioned in the statute, does also de facto not exist. The 
prientation to the international gold standard, as recommended by the 
American Commission, was rejected. 

In the case of. a "restricted" money, free coinage at fixed ratef 
(hyiodromy) would be very profitable to the private owners of the 
precious metals. Nevertheless, and precisely for this reason, restriction 
is maintained because it js feared that the introduction of hyiodromy of 
the metal of the formerly restricted money would lead to abandonment 
as unprofitable of the hyiodromy of the other metal which was fixed in 
too low a ratio to it. The monetary stock of this metal, which would now 
become "obstructed" (see next paragraph), would be put to more profita- 
ble non-monetary uses. The reason why a rational lytric administration 
wishes to avoid this is that the other metal, which would be forced out, is 
an international means of payment. 

(b) Restricted currency money will be called "obstructed" market 
money when, contrary to the case just cited, free coinage exists legally, 
but is unprofitable to private business and hence does not take place. This 
lack of profitability may rest on an unfavorable relation between, the 
market price of the metal and its monetary ratio to the market money, 
if a metal, or to paper money. Such money must at some time in the past 
have been market money; but, with multimetallism, changes in the rela- 
tive market prices of the metals or, with multi- or monometallism, finan- 
cial catastrophes, must have made the payment of metallic money by 
the government impossible and must have forced it to adopt paper money 
and to make it irredeemable. In consequence the private business pre- 
conditions of effective hyiodromy have ceased to exist. This money will 



176 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

then no longer be used in transactions — at least, insofar as action is 
rational. 

(0 Apart from restricted currency money, which alone has been 
called "restricted money" here, there may be restricted "change" money 
— that is, money which must be accepted as means of payment only up 
to a given amount. Usually, though not necessarily, it is then inten- 
tionally coined at a rate which overvalues it in relation to standard coin 
to protect it from being melted down. Usually, then, it has the status of 
provisional money in that it is redeemable at certain places. (This case 
is a phenomenon of everyday experience and has no special importance 
for present purposes.) 

All "change" money and many types of restricted metallic money 
occupy a place in monetary systems similar to that of note (today: 
paper) money. They differ from it only in that the monetary metal has 
a non- monetary use which is of some importance. Restricted metallic 
money is very nearly a means of circulation when it is provisional money; 
that is, when there is adequate provision for redemption in market 
money. 



34. Note Money 

Note money naturally is always administrative money. For the pur- 
poses of a sociological theory of money, it is always the specific chartal 
form of the document including the specific formal meaning printed on 
it which constitutes "money," and not the claim to something else which 
it may, though it need not, represent. Indeed, in the case of unredeema- 
ble paper money, such a claim is altogether absent. 

From a formal legal point of view, note money may consist in (at 
least officially) redeemable certificates of indebtedness, acknowledged by 
a private individual, as in the case of the English goldsmith? in the 
seventeenth century, by a privileged bank, as in the case of bank-notes, 
or by a political body, as in the case of government notes. If it is effec- 
tively redeemable and thus functions only as -a circulating medium or 
provisional money, it may be fully covered— thus constituting a certifi- 
cate- — -or it may be covered only sufficiently to meet normal demands 
for redemption, which makes it a circulating medium. Coverage may be 
in terms of specified weights of bullion (as in the case of a banco- 
currency) or of metal coin. 

It is almost always the case that note money has first been issued as 
a reedemable form of provisional money. In modern times, itjias been 



34 3 Note Money i 7 7 

typically a medium of circulation, almost always in the form of bank- 
notes. They have therefore been denominated in terms of units of an exist- 
ing metallic standard. 

1. The first part of the last paragraph, naturally, is not true of cases 
where one form of note money has been replaced by another; for ex- 
ample, where government notes have been replaced by bank-notes, or 
vice versa. But this is not a case of a primary issue of money. 

z. It is of course true that means of exchange and of payment may 
exist which do not take a ehartal form, i.e., are not coins or notes or 
other material objects. There is no doubt of this. It is not, however, 
expedient to speak of these as "money," but to use the term "unit of 
account" or some other term which, according to the particular case, 
is appropriate. It is characteristic of money that it is associated with par- 
ticular quantities of ehartal artifacts. This is a property which is very far 
from being merely external or of secondary importance. 

If what has previously been provisional money has its re dee inability 
suspended, it is important to distinguish whether the interested parties 
regard this as a temporary measure or as definitive for as long as they 
can predict. In the first case it would be usual, since metallic money or 
bullion is sought after for all international payments, for the note money 
to fall to a discount in relation to its nominal metal equivalent. This is 
not, however, by any means inevitable; ai.d the discount is often mod- 
erate. The discount may, however, become large if the need for foreign 
exchange is very acute. In the second case, after a time 3 definitive 
"paper money standard" will develop. Then it is no longer appropriate 
to speak of a "discount" on the monetary unit, but rather, at least in the 
usage of the past, of "debasement." 

It is not beyond the range of possibilities that the market price of 
the metal of the former market money, which is now obstructed, and in 
terms of which the issue is denominated, may for some reason fail radi- 
cally relative to international means of payment, while the fall in the 
value of the paper currency is less marked. This must have the result (as 
it actually did in Austria and Russia) that what was earlier the nominal 
unit in terms of weight of the metal (of silver in those two cases) could 
now be purchased with a smaller nominal amount in the notes, which 
had now become independent of it. That is readily understandable. 
Thus, even though in the initial stages of a pure paper standard the unit 
of paper money is probably without exception valued in international 
exchange at a lower figure than the same nominal amount of metal, be- 
cause this step always results from inability to pay, the subsequent de- 
velopment depends, as in the cases of Austria and Russia, on the 
development of the balance of payments which determines the foreign 
demand for domestic means of payment, on the amount of paper money 
issued, and on the degree of success with which the issuing authority is 



I 7 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

able to obtain an adequate supply of international means of payment. 
These three factors can (and in fact at times did) shape up in such a 
way that the exchange rate against the international means of payment 
— in this case: gold— of the paper money is increasingly stabilized or 
even rises, while at the same time the earlier standard metal falls in 
price relative to the international standard. In the case of silver, this 
happened (vis-a-vis gold) because of the increased and cheapened pro- 
duction of the metal and because of its progressive demonetization. A 
true independent paper standard exists in the case where there is no 
longer any prospect of effective resumption of redemption in terms of 
metal at the former rate. 



35. The Formal and Substantive Validity of Money 

It is true that by law and administrative action a state can today 
insure the formal validity of a type of money as the standard in its own 
area of power, provided it remains itself in a position to make payments 
in this money. 

It will not remain in s position to do this if it has allowed what was 
previously an accessory or provisional type of money to become free 
market money (in the case of a metallic money) or autonomous paper 
money (in the case of note money). This is because these types of money 
will then accumulate in the hands of the government until it commands 
no other kind and is hence forced to impose them in its own payments. 
(Knapp has rightly maintained that this is the normal process in the 
case of "obstruct ional" changes in the standard.) 

But naturally this formal power implies nothing as to the substantive 
validity of money; that is, the rate at which it will be accepted in ex- 
change for commodities. Nor does it yield any knowledge of whether and 
to what extent the monetary authorities can influence its substantive 
validity. Experience shows that it is possible for the political authority 
to attain, by such measures as the rationing of consumption, the control 
of production, and the enforcement of maximum or minimum prices, a 
high degree of control of this substantive validity, at least with respect 
to goods or services which are present or produced within its own terri- 
tory. It is equally demonstrable from experience, however, that there are 
exceedingly important limits to the effectiveness of this kind of control, 
which will be discussed elsewhere. But in any case, such measures 
obviously do not belong in the category of monetary administration. The 
rational type of modern monetary policy has, on the contrary, had quite 
a different aim. The tendency has been to attempt to influence the sub- 
stantive valuation of domestic currency in terms of foreign currency, 



35 ] The formal and Substantive Validity of Money i 7 9 

that is, the market price of the home currency ^ expressed in units of 
foreign currencies, usually to maintain stability or in some cases to attain 
the highest possible ratio.- Among the interests determining such policy 
are those of prestige and political power. But on the economic side, the 
decisive ones are financial interest, with particular reference to future 
foreign loans, and other very powerful business interests, notably of im- 
porters and of industries which have to use raw materials from abroad. 
Finally, the interests as consumers of those elements in the population 
which purchase imported goods are involved. Today there can be no 
doubt that "lytric" policy is in fact primarily concerned with regulation 
of the foreign exchanges. 

Both this and what follows are closely in agreement with Knapp. 
Both in its form and content, his book is one of the greatest master- 
pieces of German literary style and scientific acumen. It is unfortunate 
that most of the specialist critics have concentrated on the problems 
which he deliberately ignored — a small number indeed (although in 
some cases not altogether unimportant). 

While England probably still came into the gold standard somewhat 
reluctandy, because silver, which was desired as the official standard, was 
undervalued by the official ratio, all the other states in the modern world 
with a modern form of organization have chosen their monetary standard 
with a view to the most stable possible exchange relation with the 
English gold standard. They chose either a pure gold standard, a gold 
standard with restricted accessory silver monfey, or a restricted silver or 
regulated note standard with a lytric policy concerned primarily with the 
maintenance of gold reserves for international payments. The adoption 
of pure paper standards has always been a result of political catastrophe, 
wherever this has been the only way to meet the problem of inability to 
pay in what was previously the standard money. This is happening on a 
large scale today.** 

It seems to be true that for the purpose of stabilizing foreign ex- 
change in relation to gold, the free coinage of fixed rates of gold in one's 
own monetary system is not the only possible means. The parity of ex- 
change between different types of hylodromic chartal gold coinage can 
in fact become seriously disturbed, although it is true that the possibility 
of obtaining international means of payment in case of need by means 
of exporting and recoining gold is always greatly improved by internal 
hylodromy and can be temporarily negated only through natural ob- 
stacles to trade or embargoes on the export of gold as long as this 
hylodromy exists. But on the other hand it is also true, as experience 
shows, that under normal peace-time conditions it is quite possible for 






I 8 O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ 01. 11 

an area with a well-ordered legal system, favorable conditions of produc- 
tion and a lytric policy which is deliberately oriented to procuring 
adequate foreign exchange for international payments, to maintain a 
relatively stable exchange rate. Yet, if other things are equal, this in- 
volves markedly higher burdens to state finances and to persons in need 
of gold, Exacdy the same would be true, of course, if silver were the 
principal means of payment in international transactions and were rec- 
ognized as such in the principal trading nations of the world. 



$6. Methods and Aims of Monetary Policy 

^anong the more elementary of the typical methods (specific measures 
will not in general be dealt with here) of lytric policy in relation to 
foreign exchange are the following: 

(a) In countries with gold hylodromy, (i) The backing of the cir- 
culating medium, so far as it is not covered by gold, with commercial 
paper; that is, claims to payments for goods which have been sold, which 
are guaranteed by safe persons or, in other words, proved entrepreneurs. 
The transactions of the note issuing banks on their own account are as 
far as possible limited to dealing with such bills, to making loans on 
the security of stocks of goods, to the receipt of deposits, the clearing of 
check payments, and, finally, acting as financial agent for the state; 
(2) the "discount policy" of the banks of issue. This consists in raising 
the rate of interest charged on bills discounted when there is a probability 
that payments abroad will create a demand for gold sufficient to threaten 
the internal stock of gold, especially that in the hands of the issuing 
bank. The purpose is to encourage owners of foreign balances to take 
advantage of the higher rate of interest and to discourage domestic 
borrowing. 

(b) In areas with a resected metal standard other than gold or with 
a paper standard, the following are the principal measures : ( i ) Discount 
policy similar to that described under (a-.2) in order to check undue 
expansion of credit; (2) a gold-premium policy. This is a measure which 
is also common in gold-standard areas with an accessory restricted silver 
currency; (3) a deliberate policy of gold purchases and deliberate control 
of the foreign exchange rale by purchase and sale of foreign bills. 

This policy is in the first instance oriented purely to lytric considera- 
tions, but under certain circumstances it may come to involve substan- 
tive regulation of economic activity. The note-issuing banks occupy a 
position of great power in lW system of commercial banks, since the. 
latter are often dependent on the credit extended by the bank of issue. 



36 ] - Methods and Aims vA t/i--ir-..-.utry Policy 



: T 



The bank of issue may influence the other banks to regulate the moisey 
market, that is, the conditions on whidi SiK*Herm credit is given, in a 
uniform way, and from there proceed to a deliberate regulation of busi- 
ness credit, thereby influencing the directioa of the productidn of goods. 
This is, within the framework of a capitalistic economic order, the closest 
approach to a planned economy. It is formally merely a matter of volun- 
tary adjustments, but actually involves substantive regulation of eco- 
nomic activity within the territory controlled by the political authority in 
question. 

These measures were all typical before the war. They were used in 
the interest of a monetary policy which was primarily oriented to the 
stabilization of a currency or, in case changes were desired, as in coun- 
tries with restricted or paper money, at most to attempts to bring about 
a gradual rise in the foreign exchange value of the currency. It was, thus, 
in the last analysis, oriented to the hylodromic monetary systems of the 
most importar t trading nations. 

But strong interests exist which desire just the reverse policy. They 
favor a lytric policy of the following type: (1) Measures which would 
lead to a fall in the foreign exchange price of their own money in order 
to improve the position of exporting interests; (2) by increasing the 
issue of money through free coinage of silver in addition to gold (which 
would have meant instead of it), and even in some cases deliberate issue 
of paper money, to decrease the value of money in relation to domestic 
goods and thereby, what is the same thing, to raise the money prices of 
domestic goods. The object has been to improve prospects for profit in 
the production of such goods, an increase in the price of which as 
reckoned in terms of domestic currency was thought to be the first con- 
sequence of the increase of the amount of domestic money in circulation 
and of the attendant fall in its foreign exchange value. The intended 
process is termed "inflation." 

The following points may be noted: (1) though its quantitative 
importance is still controversial, it is very probable that with any type of 
hylodromy a very great cheapening in the production of the precious 
metal or other source of increase in its supply, as through very cheap 
forced seizures, will lead to a noticeable tendency toward a rise in the 
prices at least of many products in areas where that metal is the monetary 
standard, and in differing degrees of all products. (2) It is at the same 
time an undoubted fact that, in areas with an independent paper stand- 
ard, situations of severe financial pressure, especially "war, lead the 
monetary authorities to orient their policy overwhelmingly to the 
financial requirements of the war. It is equally cle^r that countries with 
hylodromy or with restricted metallic money have, in similar circum- 



I 8 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. If 

stances, not only suspended redemption of their notes in circulation, but 
have gone further to establish a definitive and pure paper standard. But 
in the latter case, the metal money, now become accessory money, could, 
because its premium in relation to notes is ignored, only be used for non- 
monetary purposes. It thus disappeared from circulation. Finally, it is a 
fact that in cases of such shifts to a pure paper standard, occurring along 
with unlimited issue of paper money, inflation has in fact ensued with 
all its consequences on a colossal scale. 

When all these processes are compared, it will be seen that so long 
as freely coined market money exists, the possibility of inflation will be 
narrowly limited. This will be true in the first place for mechanical" 
reasons: though it is somewhat elastic, the quantity of the precious metal 
in question available for ■ monetary use is ultimately firmly limited. 
Secondly, there are economic reasons in that here the creation of money 
takes place on the initiative of private interests, so that the demand for 
coinage is oriented to the needs of the market system for means of pay- 
ment. Inflation, then, is only possible if restricted metal money (such as 
today silver in gold-standard countries) is thrown open to free coinage. 
However, if the restricted metal can be produced very cheaply and in 
large quantities, the effect may be very great 

Inflation through an increase in the quantity of "means of circula- 
tion" is conceivable only as the result of a very gradual increase in the 
circulation through a lengthening of credit terms. The limits are elastic, 
but in the last resort this process is stricdy limited by the necessity for 
maintaining the solvency of the note-issuing bank. There is acute danger 
of inflation only if there is danger that the bank will become insolvent. 
Normally this is likely to occur only where there is a paper standard 
resulting from war needs. (Cases like the gold inflation of Sweden dur- 
ing the war, resulting from the export of war materials, are the result of 
such special circumstances that they need not be considered here.) 

Where an independent paper standard has once been established, 
there may not be any greater danger of inflation itself (since in time of 
war-^almost all countries soon go over to a paper standard), but in general 
there is a noticeably greater possibility of the development of the conse- 
quences of inflation. The pressure"^ financial difficulties and of the 
increased wage and salary demands and other costs which are caused by 
the higher prices will noticeably strengthen the tendency of financial 
administrations to continue the inflation even if there is no absolute 
necessity to do so and in «pite of the possibility to suppress it if strong 
sacrifices are" incurred. The differences in this respect between paper 
currency and other currencies is, even if only quantitative, certainly 
noticeable, as the financial conduct [during and after the War] of the 



36 ] Methods and Aims of Monetary Policy 1 8 3 

Allies as a group, of Germany, and of both Austria and Russia finally, 
can show. 

Lytric policy may thus, especially in the case of accessory restricted 
metal or of paper money, be an inflationary policy. In a country which, 
like the United States, has had relatively so little interest in the foreign 
exchange value of her money, this has been true for a time under quite 
normal conditions without being based on any motives derived from 
financial needs of the state. In a number of countries which fell into 
inflationary measures during the War, the pressure of necessity has been 
such as to lead to the continuance of an inflationary policy afterwards. 

This is not the place to develop a theory of inflation. Inflation always 
means, in the first place, a particular way of increasing the purchasing 
power of certain interests. We will only note that any lytric policy 
oriented to the substantive rationality of a planned economy, which it 
would seem to be far easier to develop with administrative and especially 
paper money, is at the same time far more likely to come to serve interests 
which, from the point of view of exchange rate stabilization, are irra- 
'tional. For formal rationality (of the market-economy type) of lytric 
policy, and hence of the monetary system, can, in conformity with the 
definition of "rationality" consistently held to here, only mean: the 
exclusion of all such interests which are either not market-oriented, like 
the financial interests of the state, or are not interested in the mainte- 
nance of stable exchange relations with other currencies as an optimum 
basis for rational calculation, but which, on the contrary, are primarily 
oriented to the creation of purchasing power for certain interest groups 
by means of inflation and to its maintenance even if there is no longer 
any iieed for the issue of new money from the point of view of public 
finances. Whether especially this latter process is to be praised or cen- 
sured is, naturally, not a. question capable of solution en empirical 
grounds. Of its empirical existence there can be no doubt- 

It is furthermore true that proponents of a point of view which is 
oriented to substantive social ideals can find a very important opening 
for criticism in the very fact that the creation of money and currency is, 
in a pure market economy, made an object of the play of interests 
oriented only to profitability, and is not considered in terms of the 
"right" volume or the "right" type of money. They might with reason 
argue that it is only administrative money which can be "managed," but 
not market money. Thus the use of administrative money, especially 
paper money, which can be cheaply produced in any desired form and 
quantity is, from the point of view of a substantive rationality, whatever 
its goals, the only correct way to handle the monetary question. This 
argument is conclusive in formal logical terms. Its value, however, is 



: 8 4 SOCIOLOGICAL categories o> S-CCJVGMIC ACTION [ Ck. II 

naturally limited in view of the fact ths- in the future as in the past it 
will be the "interest's" of individuals rather than the "ideas" of an eco- 
nomic administration which will rule the world.* 9 Thus, the possibility 
of conflict between formal rationality in the present sense and the 
substantive rationality which could theoretically be constructed for a 
lytric authority sntiieiy free of any obligation to maintain hylodromy of 
a metal, has besn demonstrated also for this point. That was the sole 
purpose of this discussion. 

It is evident that this whole treatment of money consists only in a 
kind of discussion with Knapp's magnificent book, Die Staatlkke The- 
orie des Geldes, a discussion which is, however, confined to points rele- 
vant teethe present problems and carried out on a highly schematic basis, 
entirely neglecting the finer points. Quite at variance with its author's 
intentions, though perhaps not entirely without fault on his part, the 
work immediately was utilized in support of value judgments. It was 
naturally greeted with especial warmth by the Austrian lytric adminis- 
tration, with its partiality to paper money. Events have by no meins dis- 
proved Knapp's theory in any point, chough they have shown, what was 
known beforehand, that it is incomplete in its treatment of the sub- 
stantive validity of money. It will now he necessary to justify this state- 
ment in more detail'. 



36a. Excursus: A Critical Note on the "State Theory 
of Money" 

Knapp victoriously demonstrates that in every case the recent mone- 
tary policy both of stares themselves and of agencies under the direction 
of the state have, in their efforts to adopt a gold standard or some other 
standard approximating this as closely as possible, been primarily con- 
cerned with the exchange value of their currency in terms of others, 
particularly the English. The object has been to maintain a certain 
exchange parity with the English gold standard, the money of the world's 
largest trading area which was universally used as a means of payment 
in international trade. To accomplish this, Germany first demonetized 
silver; then France, Switzerland, and the other countries cf the Latin 
Union, Holland, and finally India ceased to treat silver as market money 
and made it into restricted money. Apart from this they undertook in- 
directly gold-hylodromic measures to provide for foreign payments in 
gold. Austria and Russia did the same, in that the lytric administration 
of these countries using unredeemable, independent paper money took 
indirectly gold-hylodromic measures so as to be in a position to make at 



i6a ] Excursus on Knopf's "State Theory of Money" i 8 5 

least foreign payments in gold at any time. They were thus concerned 
entirely with obtaining the greatest possible stability of their foreign 
exchange rates. Knapp concludes from this that stabilization of the 
foreign exchange rate is the only factor which makes the particular 
monetary material and hylodromy at all significant He concludes that 
this end of foreign exchange rate stability is served just as well by the 
indirectly hylodromic measures of the paper currency administrations (as 
in Austria and Russia) as by direcdy hylodromic measures. His claim is 
not, to be sure, stricdy and literally true under ceteris paribus conditions 
for areas of full hylodromy in the same metal. For, as long as two areas 
which maintain a hylodromic coinage in the same metal refrain from 
embargoes on the exportation of the monetary metal, whether they are 
both gold-standard or silver-standard countries, the fact of the existence 
of the same hylodromy on both sides undoubtedly facilitates the mainte- 
nance of exchange parity considerably. Yet, under normal conditions 
Knapp's conclusion is to a large extent correct. But this does not prove 
t that in the choice of a monetary material — above all today in the choice 
between a metal, whether gold or silver, and note money — this would 
be the only set of considerations which could be important. (The special 
circumstances which are involved in bimetallism and restricted money 
have already been discussed and can reasonably be left aside here.) 

Such a claim would imply that a paper standard and a metallic stand- 
ard behave in all other respects in the same way. But even from a formal 
point of view the difference is significant. Paper money is necessarily a 
form of administrative money, which may be true of metallic money, 
but is not necessarily so. It is impossible for paper money to be "freely 
coined." The difference between depreciated paper money, such as the 
assignats, and the type of depreciation of silver which might at some 
future time result from its universal demonetization, making it ex- 
clusively an industrial raw material, is not negligible; it is true, however, 
that Knapp occasionally grants this. Paper has been and is today (1920) 
by no means a freely available good, just as the precious metals are not. 
But the difference, both in the objective possibility of increased produc- 
tion and in the costs of production in relation to probable demand, is 
enormous, since the production of metals is to a relative degree so defi- 
nitely dependent on the existence of mineral deposits. This difference 
justifies the proposition that a lytric administration was, before the war, 
in a position to produce paper money, if it so desired, in unlimited 
quantities. This is a significant difference even from copper, as used in 
China, certainly from silver, and very decidedly from gold. The costs 
would be, relatively speaking, negligible. Furthermore, the nominal 
value of the notes could be determined arbitrarily and need bear no 



I 8 6 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ch. II 

particular relation to the amount of paper used. In the case of metallic 
money, this last has been true only of its use as "change" money; thus 
not in any comparable degree or sense. It was certainly not true of cur- 
rency metal. In the latter case, the available quantity was indeed some- 
what elastic, but nevertheless immensely more rigidly limited than the 
produceability of paper. This fact has imposed limits on the arbitrariness 
of monetary policy. It is of course true that, so far as the lytric administra- 
tion has been oriented exclusively to the maintenance of the greatest 
possible stability of foreign exchange rates, it would be subject to very 
definite normative limitations on its creation of note money, even though 
not to technical limitations. This is the answer Knapp might well give, 
and in giving it he would be right, although only from a formal point of 
view. And how about fully "independent" paper money? The situation 
is the same, Knapp would say, pointing to Austria and Russia: "only" 
the purely technical limitations imposed by the scarcity of monetary 
metals are absent. The question is, whether this absence is an altogether 
unimportant difference — a question which Knapp ignores. "Against" 
death," he might say, meaning that of a currency, "no potion has yet 
been found." If the present (1920) absolute and abnormal obstruction 
of paper production he ignored, there unquestionably have been and still 
are certain factors tending to unlimited issue of paper money. In the 
first place, there are the interests of those in political authority who, as 
Knapp also assumes, bear ultimate responsibility for monetary policy, 
and there are also certain private interests. Both are not of necessity 
primarily concerned with the maintenance of stable foreign exchange 
rates. It is even true, at least temporarily, that their interests might lie in 
the directly opposite direction. These interests can, either from within 
the political and monetary administration or by exercising a strong pres- 
sure on it, have an important influence on policy which would lead to 
"inflation" or what Knapp, who stricdy avoids the term, could only 
describe as a case of the issue of paper money which is not "admissible" 
because it is not oriented to the international rate of exchange. 

There are, in the first place, financial temptations to resort to infla- 
tion. An average depreciation. of the German mark by inflation to i/2oth 
of its former value in relation to the most important domestic com- 
modities and property objects would — once profits and wages had be- 
come adapted to this level of prices — mean, it may here be assumed, that 
all internal commodities and labor services would nominally he valued 
20 times as high as before. This would further mean, for those in this 
fortunate situation, a reduction of the war debt to i/2cth of its original 
level. The state, which would receive a proportionate increase in its in- 
come from taxation as nominal money incomes rose, would at least enjoy 



36a ] Excursus on Knapp's "State Theory, of Mvney" i 8 7 

important relief from this source. This is indeed an attractive prospect. 
It is clear that someone would have to hear the costs, but it would be 
neither the state nor one of these two categories of private individuals, 
entrepreneurs and wage earners. The prospect is even more attractive 
of being able to pay old foreign debts in a monetary unit which can be 
manufactured at will and at negligible cost. Apart from the possibility 
of political intervention, there is of course the objection that the use of 
this policy toward foreign loans would endanger future credit. But the 
state is often more concerned with the present than with the more or 
less remote future. Furthermore, there are entrepreneurs who would 
be only too glad to see the prices of their products increased twenty-fold 
through inflation if, as is altogether possible, the nominal wages of 
workers, because of lack of bargaining power or through lack of under- 
standing of the situation or for any other reason, were to increase "only" 
five- or possibly ten-fold. 

It is usual for acute inflation from public finance motives of this kind 
to be sharply disapproved by experts in economic policy. It is certainly 
not compatible with Knapp's form of exchange-rate oriented monetary 
policy. On the other hand, a deliberate but very gradual increase of the 
volume of means of circulation, of the type which is sometimes under- 
taken by central banks by facilitating the extension of credit, is often 
looked upon favorably as a means of stimulating speculative attitudes. 
By holding out prospect of greater profits, it is held to stimulate the spirit 
of enterprise and with that an increase in capitalistic production by en- 
couraging the investment of free money in profit-making enterprise 
rather than its investment in fixed-interest securities.- We have to ask, 
however, what is the effect of this more conservative policy on the 
stability of the exchange rate? Its direct effect — that is, the consequence^ 
of the stimulation of the spirit of enterprise — may be to create 3 mojjl 
favorable balance of payment, or at least to check the fall in the foreign 
exchange position of the domestic currency. How often this works out 
and how strong the influence is, is, of course, another question. Also, no 
attempt will here be made to discuss whether the effects of a modera^ 
increase in the volume of currency caused by state requirements for 
money would be similar. The costs of such an expansion of the stock of 
currency money, which would be relatively harmless to the foreign ex- 
change position, would be gradually paid by the same groups which 
would be subject to "confiscation" in a case of acute inflation. This in- 
cludes all those whose nominal income remains the same or who have 
securities with a constant nominal value, above all, the receivers of 
fixed-interest bond income, and those who eam salaries which are 
"fixed" in that they can be raised only through a severe struggle. It is 



I 8 8 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Clt. II 

thus not possible to interpret Knapp as meaning that it is only the sta- 
bility of foreign exchange which is significant as a criterion for the 
management of paper money; indeed, he does not claim this. Nor is it 
legitimate to believe, as he does, that there is a very high probability that 
this will empirically be the only criterion. It cannot, however, be denied 
that it would indeed be the decisive criterion of a lytric policy which is 
completely rational in Knapp's sense, that is, one which seeks as far as 
possible to prevent disturbances of the price relations resulting from 
monetary policies (a definition which Knapp does hot himself spell out). 
But it cannot be admitted, and Knapp does not claim this either, that 
the practical significance of the kind of monetary policy formulated is 
limited to the question of the stability of foreign exchange rates. 

Inflation has here been spoken of as a source of price revolutions or 
at least slow price level increases, and it has been pointed out that it may 
be caused by the desire to bring about such price level changes. Natu- 
rally, an inflation so extensive as to create a price revolution will inevita- 
bly upset the stability of foreign exchange; though this is by no means 
necessarily true of gradual increases in the circulating medium. Knapp 
would admit that. He obviously assumes, and rightly, that there is no 
place in his theory for* a currency policy concerned with commodity 
prices, whether it be revolutionary, evolutionary, or conservative. Why 
does he do this? Presumably for the following formal reasons: 

The exchange relationship between the standards of two or more 
countries is expressed daily in a small number of formally unambiguous 
and uniform market prices of currencies, which can be used as a guide 
to a rational lytric policy. It is further possible for a lytric authority, 
especially one concerned with the means of circulation, to make certain 
estimates (but only estimates, based on anterior demand conditions 
periodically observed in the market) of the probable fluctuations of a 
given stock of means of payment which will be required, for payment 
purposes alone, by a given population linked in market relationships over 
a certain future period, provided conditions in general remain approxi- 
mately unchanged. But it is not possible to estimate in the same sense, 
quantitatively, the effect on prices — revolutionary or gradual increase, or 
perhaps a decrease — of a currency expansion or contraction over a cer- 
tain future period. To do thisj ii would, in the case of inflation, to which 
attention will be confined, be necessary to know the following additional 
facts: (i) The existing distribution of income; (2) connected with this, 
the present policy conclusions derived therefrom of the different indi- 
viduals engaged in economic activity; (3) the channels the inflationary 
process would follow, that is, who would be the primary and subsequent 
recipients of newly-issued money. This would involve knowing the se- 



2,6a ] Excursus on Knapp's "State Theory of Money' 7 189 

quence in which nominal incomes are raised by the inflation and the 
extent to which this would take place; (4) the way in which the newly- 
created demand for goods would be exercised, for consumption, for 
building up property investments, or for new capital. This would be 
important quantitatively, but even more so qualitatively; (5) the direc- 
tion of the consequent changes in prices and of the further income 
changes resulting in turn, and all the innumerable further attendant 
phenomena of purchasing power redistribution, and also the volume of 
the (possible) stimulated increase in goods production. All these are data 
which would depend entirely on the decisions made by individuals when 
faced with the new economic situation. And these decisions would in 
ttim react on the expectations as to prices of other individuals; only the 
consequent struggle of interests can determine the actual future prices. 
In such a situation there can clearly be no question of forecasting in the 
form of such predictions as that the issue of an additional billion of cur- 
rency units would result in increases in the pig-iron price of "X" or in 
the grain price of "Y." The prospect is made even more difficult by the 
fact that it is possible temporarily to establish effective price regulation 
of domestic commodities, even though these can only be maximum and 
not minimum prices and their effectiveness is definitely limited. But 
even if this impossible task of calculating specific prices were accom- 
plished, it would be of relatively little use. This would only determine 
the amount of money required as a means of payment, but in addition to 
this, and on a much larger scale, money would be required in the form 
of credit as a means of obtaining capital goods. Here, possible conse- 
quences of a proposed inflationary measure are involved which are in- 
accessible to any kind of accurate forecasting. It is thus understandable 
that, all things considered, Knapp should have entirely neglected the 
possibility of inflationary price policies being used in the modem market 
economy as a deliberate rational policy comparable to that of mainte- 
nance of foreign exchange stability. 

But historically the existence of such policies is a fact. To be sure, 
in a crude form and under much more primitive conditions of money 
economy, inflation and deflation have been repeatedly attempted with 
the Chinese copper currency, though they have led to serious failures. 
In America, inflation has been proposed. Knapp, however, since his book 
operates on the basis only of what he calls demonstrable assumptions, 
contents himself with giving the advice that the state ought to be careful 
in the issue of independent paper money. Since he is entirely oriented 
to the criterion of exchange rate stability, this advice appears to be rela- 
tively unequivocal; inflationary debasement and depreciation in foreign 
exchange are usually very closely associated. But they are not identical, 



19 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

and it is far from true that every inflation is primarily caused by the 
foreign exchange situation. Knapp does not explicitly admit, but neither 
does he deny, that an inflationary money regime has been urged for 
reasons of price policy among others by the American silver producers 
during the free silver campaign and by the farmers who demanded 
"greenbacks," but not only in these cases. It is probably comforting to 
V him that it has never been successful over a long period. 

But the situation is by no means so simple as this. Whether or not 
they have been intended simply to raise the price level, inflations of this 
sort have in fact often taken place; and even in the Far East, to say 
nothing of Europe, such catastrophes as met the asstgnats are by no 
means unknown. This is a fact which a substantive theory of money 
must deal with. Knapp? of all people, certainly would not maintain that 
there is no difference whatever between the depreciation of silver and 
the depreciation of the asstgnats- Even formally this is not the case. 
What has been depreciated is not silver coin, but, on the contrary, the 
raw silver for industrial purposes. Coined chartaJ silver, on the con- 
trary, being restricted, has often had the opposite fate. On the other 
hand, it was not the paper available for industrial purposes which was 
"depreciated," but only the chartal asstgnats It is true, as Knapp would 
rightly point out, that they would fall to zero or to their values to col- 
lectors or as museum pieces only when they had finally been repudiated 
by the state. Thus even this results from a "state" action- This may be 
granted, but their material value may have fallen to a minute proportion 
of what it formerly was, before their formal repudiation, in spite of the 
fact that they were still nominally valid for making payments of public 
obligations. 

But quite apart from such catastrophes, history provides a consider- 
able number of examples of inflation, and, on the other hand, in China, 
of deflationary movements as a result of non-monetary use of monetary 
metals. It is necessary to do more than merely to note that under some 
circumstances certain kinds of money which were not accessory before, 
have become so, have tended to accumulate in the hands of the state, 
and have rendered obstructional changes in the standard necessary. A 
substantive theory of money should at least formulate the question as to 
how prices and income, and hence the whole economic system, are in- 
fluenced in such cases, even though it is, for the reasons which have 
been given, perhaps questionable how far it will be able to achieve a 
theoretical solution. Similarly, a problem is suggested by the fact that, as 
a result of relative decline in the prices of either silver or gold in terms 
of the other, France, which has been formally a country of bimetallism, 
in fact has operated at rimes on a gold standard alone, and at others on 



2,6a } Excursus on Knapp's "State Theory of Money" i 9 1 

a silver standard, while the other metal became accessory- In such a case 
it is not sufficient merely to call attention to the fact that the resulting 
price changes originate from a monetary source. The same is true in 
other cases where the monetary material has been changed. We also 
want to know what are the sources of an increase in the supply of a 
precious metal, whether it has stemmed from booty (as in the case of 
Cortez and Pizano), from enrichment through trade (as in China early 
in the Christian era and since the sixteenth century), or from an increase 
of production. So far as the latter is the source, has production merely 
increased, or has it also become cheaper, and why? What is the part 
which may have been played by changes in the non-monetary uses of 
the metal? It may be that for a particular economic area, as, for instance, 
the Mediterranean area in Antiquity, a definitive exporthas taken place 
to an entirely distinct area like China or India, as happened in the early 
centuries of, the Christian era. Or the reasons may lie wholly or partly 
in a change in. the monetary demand arising from changes in customs 
touching the use of money, such as use in small transactions. How all 
these and various other possibilities tend to affect the situation is a sub- 
ject which ought to be discussed in a monetary theory. 

Finally, it. is necessary to discuss the regulation of the "demand" for 
money in a market economy, and to inquire into the meaning of this 
concept. One thing is clear, that it is the actual demand for means of 
payment on the part of the parties to market relationships which deter- 
mines the creation of free market money under free coinage. Further- 
more, it is the effective demand for means of payment and, above all, 
for credit, on the part of market participants, in combination with care 
for the solvency of the banks of issue and the norms which have been 
established with this in view, which determines the policies for means 
of circulation of modern banks of issue. All this is oriented to the re- 
quirements of interested parties, as is in conformity with the general 
character of the modern economic order. 

It is only this which, under the formal legal conditions of our 
economic system, can correcdy be called "demand for money." This 
concept is thus quite indifferent with respect to substantive criteria, as 
is the related one of effective demand for goods. In a market economy 
there is an inherent limit to the creation of money only in the case of 
metallic money. But it is precisely the existence of this limit, as has 
already been pointed out, which constitutes the significance of the pre- 
cious metals for monetary systems. The restriction of standard money to 
a material which is not capable of unlimited production at will, par- 
ticularly to one of the precious metals, in combination with the "cover- 
age" of means of circulation by this standard, sets a limit to any sort of 



I$2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. H 

creation of money. Even though it does not exclude a certain elasticity 
and does not make an evolutionary type of credit inflation altogether 
impossible, it still has a significant degree of rigidity. Where money is 
made out of a material which is, for practical purposes, capable of un- 
limited production, like paper, there is no such mechanical limit. In this 
case, there is no doubt that it is the free decision of the political authori- 
ties which is the regulator of the quantity of money, unimpeded by 
any such mechanical restraints. That, however, means, as has been 
indicated, determination by their conception of the financial interests of 
the political authority or even, under certain circumstances, the purely 
personal interests of the members of the administrative staff, as was true 
of the use of the printing presses by the Red armies. The significance 
of metallic standards today lies precisely in the elimination of these inter- 
ests from influence on the monetary situation, or more precisely, since 
they may always try to influence the state, urging it to abandon metal in 
favor of a pure paper standard, in a certain restraint on such interests. In 
spite of the mechanical character of its operation, a metallic standard 
nevertheless makes possible a higher degree of formal rationality in a 
market economy because it permits action to be oriented wholly to 
market advantages. It is, of course, true, as demonstrated by the experi- 
ence of Austria and Russia, that the monetary policy of lytric authorities 
under a pure paper standard is not necessarily oriented either to the 
purely personal interests of the authority or the administrative staff, or 
to the financial interests of the state (which would mean the least ex- 
pensive creation of the greatest possible volume of means of payment, 
without concern for what happens to the currency as a means of 
exchange). But the danger that such an orientation should become 
dominant is, nonetheless, continually present under a paper standard, 
while in a hylodromic system (free market money) it does not exist in a 
comparable sense. From the point of view of the formal order of a 
market economy, the existence of this danger is an "irrationar factor 
present in any form of monetary system other than a hylodromic stand- 
ard. This is true in spite of the fact that it may be readily admitted that, 
on account of its mechanical character, such a monetary system itself 
possesses only a relative degree of formal rationality. So much Knapp 
Could and should admit. 

However incredibly primitive the older forms of the quantity theory 
of money were, there is no denying that any inflation with the issue of 
paper money determined by financial needs of the state is in danger of 
causing "debasement" of the currency. Nobody, not even Knapp, would 
deny this- But his reasons for dismissing it as unimportant are thoroughly 
unconvincing. The "amphitropie" position of each individual, meaning 



36a ] Excursus on Knapp's "State Theory of Money" 1 9 3 

that every man is both a debtor and creditor, which Knapp in all seri- 
ousness puts forward as proof of the absolute indifference of any cur- 
rency "debasement," 60 is, as we now all know from personal experience, 
a mei£ phantom. What becomes of this position, not only for the rentier, 
but also for every one on a fixed salary, whose income remains constant 
in nominal units or, at best, is doubled if state finances and the mood 
of the bureaucracies permit, while bis expenditures may, in nominal 
units, have increased twenty-fold, as it happens to us nowadays> What 
becomes of it for any long-term creditor? Such radical alterations in the 
(substantive) validity of money today produce a chronic tendency 
toward social revolution, even if many entrepreneurs are in a position 
to profit from the international exchange situation, and if some (very 
few) workers are powerful enough to secure increases in their nominal 
wages. It is, of course, open to anyone to welcome this revolutionary 
effect and the accompanying tremendous unsettlement of the market 
economy. Such an opinion cannot be scientifically refuted. Rightly or 
wrongly, some can hope that this tendency will lead to the transforma- 
tion of a market economy into socialism. Or some may expect proof for 
the thesis that only a regulated economy with small-scale production 
units is capable of substantive rationality, regardless of the sacrifices its 
establishment would entajl. It is impossible for science to decide such 
questions, but at the same 1 time it is its duty to state the facts about these 
effects as clearly and objectively as possible. Knapp's assumption that 
people are both debtors and creditors in the same degree, which in the 
generalized form he gives the proposition is quite untenable, serves only 
to obscure the situation. There ate particular errors in his work, but the 
above seems to be the most important element of incompleteness in his 
theory. It is this which has led also some scholars who otherwise would 
have no reason to be hosrile *o his work, to attack his theory on grounds 
of "principle." 



37. The Non-Monetary Significance of Political Bodies 
for the Economic Order 

The significance for the economic system apart from the monetary 
order of the fact that autonomous political organizations exist lies above 
all in the following aspects: 

CO In the fact that, other things being nearly equal, they tend to 
prefer their own subjects as sources of supply for the utilities they need. 
The impact of this fact is the greater, the more the economy of these 



I 9 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. U ; 

political bodies has a monopolistic character or that of a system of budget- 
ary satisfaction of needs; hence it is presently on the increase. 

(2) In the possibility deliberately to encourage, restrain, or regulate 
trade transactions across its boundaries on the basis of some substantive 
criteria—that is, to conduct a foreign trade policy. 

(3) In the possibility of various types of formal and substantive 
regulation of economic activity by political bodies, differing in stringency 
and in type. 

(4) In the important consequences of the very great differences in 
the structure of authority and of political power and in the closely re- 
lated structure of administration and of social classes, especially of those 
which enjoy the highest prestige, and of the attitudes toward earning 
and profit-making which derive from these. 

(5) In the competition among the directing authorities of these 
political bodies to increase their own power and to provide the members 
under their authority, with means of consumption and acquisition and 
with the corresponding opportunities for earnings and profits. 

(6) In the differences in ways in which these bodies provide for 
their own needs. On this see the following section. 



38. The Financingof Political Bodies 

The most direct connection between the economic system and pri- 
marily non-economic organizations lies in the way in which they secure 
the means of carrying on their corporate activity as such; "that is, the 
activity of the administrative staff itself and that which is directed by it 
(see chap. I, sec. 12), This mode of provision may be called "financing" 
in the broadest sense, which includes the provision of goods in kind. 

Financing; — that is, the provision of corporate activity with" eco- 
nomically scarce means — may, considering only the simplest types, be 
organized in the following ways: 

(O Intermittendy, based either on purely voluntary or on compul- 
sory contributions or services. Voluntary "intermittent" financing may 
take one of three forms : 

(a) That of large gifts or endowments.* 1 This is typical in relation 
to charitable, scientific, and other ends which are primarily neither 
economic nor political. 

(b) That of begging. This is typical of certain kinds of ascetic com- 
munities. 

In India, however, we also find secular castes of beggars, and else- 
where, particularly in China, organized groups of beggars -are found. 



38 ] The Financing of Political Bodies i 9 5 

Begging may in these cases be extensively monopolized and systematized 
with territorial assignments. Also, because response is regarded as a duty 
or as meritorious, begging may lose its intermittent character and in fact 
tend to become a tax-like source of income. 

(c) That of gifts, which are formally voluntary, to persons recog- 
nized as politically or socially superior. This includes gifts to chiefs, 
princes, patrons, feudal lords over land or persons. "Because of the fact 
that they have become conventional, these may in fact be closely ap- 
proximated to compulsory payments. But usually, they are not worked 
out on a basis of rational expediency, but are generally made on certain 
traditional occasions, such as particular anniversaries or on the occasion 
of events of family or political significance. 

Intermittent financing may, on the other hand, be based on compul- 
sory contributions. 

The type case for compulsory "intermittent" financing is furnished 
by such organizations as the Camorra in southern Italy and the Mafia in 
Sicily, and similar organized groups elsewhere. In India there have ex- 
isted rituall y separated castes of "thieves" and "robbers," and in China 
sects and secret societies with a similar method of economic provision. 
The payments are "intermittent" only on the surface, because they are 
formally illegal. In practice they often assume the character of periodic 
"subscriptions," paid in exchange for the rendering of certain services— 
notably, of a guarantee of security. About twenty years ago, a Neapoli- 
tan manufacturer replied to my doubts concerning the effectiveness of 
the Camorra with respect to business enterprises: "Signore, la Camorra 
mi prende X lire nel mese, ma garantisce la sicurezza, — lo Stato me ne 
prende 10 • X, e garantisce: niente." [Sir, the Camorra takes X lire a 
month from me, but guarantees me security; the state takes ten times 
that amount, and guarantees me nothing.] The secret societies typical of 
Africa — perhaps rudiments of the former "men's house" — operate in a 
similar way (as secret courts), thus insuring security. Political groups 
may, like the Ligurian "pirate state," rest primarily on the profits of 
booty, but this has never been the exclusive source of support over a 
'long period. 

(2) Financing may, on the other hand, be organized on a perma- 
nent basis. 

A. — This may take place without any independent economic produc- 
tion on the part of the organization. It may then consist in contributions 
of goods, which may be based on a money economy. If so, money con- 
tributions are collected and provisions are obtained by the money 
purchase of the necessary utilities. In this case, all compensation of 
members of the administrative staff takes the form of money salaries. 
Contributions of goods may, on the other hand, be organized on the 
basis of a natural economy. Then, members are assessed with specific 



196 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

contributions in kind. Within this category, there are the following sub- 
types; the administrative staff may be provided for by benefices in kind 
and the needs of the group met in the same way. On the other hand, 
the contributions which were collected in kind may be sold wholly or 
in part for money and provision made in monetary terms. 

Whether in money or in kind, the principal elementary types of 
contribution are the following: 

(a) Taxes; that is, contributions which may be a proportion of all 
possessions (in the money economy: of wealth), or of all receipts (in 
the money economy: of incomes), or, finally, only of the means of 
production or from certain kinds of profit-making enterprises (so-called 
"yield taxes"). 

(b) Fees; that is, payments for using or taking advantage of facilities 
provided by the organization, of its property or of its services. 

(c) "Imposts" on such things as specific types of use or consumption 
of commodities, specific kinds of transactions, above all, the transportation 
of goods (customs) and the turn-over of goods (excise duties and sales 
tax). 

Contributions may be collected by the organization itself or leased 
out ("fanned") or lent out or pledged. The leasing of collection for a 
fixed sum of money ("tax farming") may have a rational effect on the 
fiscal system since it may be the only possible way to budget accounts. 
Lending and pledging are usually irrational from the fiscal point of 
view, normally resulting from financial necessity or usurpation on the 
part of the administrative staff, a result of the absence of a dependable 
administrative organization . 

A permanent appropriation of the receipts from contributions by 
creditors of the state, by private guarantors of the army or of tax pay- 
ments, by unpaid mercenary captains (conifctrieri) and soldiers, and, 
finally, by holders of rights to official positions, will he called the grant- 
ing of benefices (yeiffruv.dv.-ng). This may in turn take the form of 
individual appropriation or collective appropriation with freedom of re- 
placement from the group ivtiich has collectively cairi^d our tht* ap- 
propriation. 

Financing without any economic production en the part of the or- 
ganization itself may also take place by die imposition of obligations 10 
personal services; that is, direct personal services with specification °^ 
the work to be done. 

B. — Permanent financing may further, contrary to the above cases, 
£>e based on the existence of a productive establishment under the direct 
control of the organization. Such an establishment may be a budgetary 
unit, as an otkos or a feudal domain, or it may he a profit-making enter- 



5,* j 77*e Financing &{ Political Bodies i 9 7 

prise, which, an turn, may compete freely with other profit-making 
enterprises or be ? monopoly. 

Once more, exploitation may be directly under the administration of 
■.he organisation or it may be farmed out, leased, or pledged. 

C. — Finally, it is possible for financing to be organized "liturgically'' 
by means of burdens which are associated with privileges. These may 
involve "positive privileges," as when a group is freed from the burden of 
malting particular contributions, or (possibly identical with the former 
case) "negative privileges," as when certain burdens are placed on par- 
ticular groups. The latter are usually cither status groups (Stotide) or 
property or income classes. Finally, the Jiturgic type may be organized 
"ccrrelarivsiy" by associating specific monopolies with the burden of 
performing certain services or supplying certain goods. This may take 
the form of organisation of "estates," that is, of compulsorily forming the 
members of the organization into hereditarily closed liturgical classes on 
the basis of property and occupation, each enjoying status privileges. 
Or it may be carried out capitalisn'cally, by creating closed guilds or 
cartels, with monopolistic rights and a corresponding obligation to make 
money contributions. 

This very rough classification applies to all kinds of organizations. 
Examples, however, will be given only in terms of political bodies. 

The system of provision through money contributions without eco- 
nomic production is typical of the modern state. It is, however, quite out 
of the question to attempt here even a summary analysis of modem sys- 
tems of taxation. What will first have to be discussed at length is the 
"sociological location" of taxation — that is, the type of structure of domi- 
nation that has typically led to the development of certain kinds of con- 
tributions (as, e.g., fees, excises, or taxes). 

Contributions in kind, even in the case of fees, customs, excises, and 
sales taxes, were common throughout the Middle Ages. Their commuta- 
tion into money payments is a relatively modem phenomenon. 

Deliveries of goods in kind are typical in the form of tribute or of 
assessments of products laid upon dependent economic units. The trans- 
portation of in-kind contributions is possible only for small political units 
or under exceptionally favorable transportation conditions, as were pro- 
vided by the Nile and the Chinese Grand Canal. Otherwise it is neces- 
sary for the contributions to be converted into money if the final recipi- 
ent ts to benefit from them. This was common in Antiquity. It is also 
possible for them to be exchanged, according to the distance they have 
to be transported, into objects with higher price-to-weight ratios. This is 
said to have been done in ancient China. 

Examples of obligations to personal service are obligations to military 
service, to serve in courts and on juries, to maintain roads and bridges, 
to work on a dyke or in a mine, and all sorts of compulsory service for 



I98 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. II 

corporate purposes which are found in various types of organizations. The 
type case is furnished by the "corvie state," of which the best example 
is the New Kingdom of ancient Egypt. Similar conditions were found 
at some periods in China, to a lesser extent in India and to a still less 
extent in the late Roman Empire and in many organizations of the early 
Middle Ages. Support by die granting of benefices is illustrated by the 
following cases: (1) In China, collectively to the body of successful 
examinees for official positions; (2) in India, to the private guarantors 
of military services and tax payments; C3) to unpaid condottieri and 
mercenary soldiers, as in the late Caliphate and under the regime of the 
Mamelukes; (4) to creditors of the state, as in the sale of offices common 
everywhere. 

Provision from the organization's own productive establishment ad- 
ministered on a budgetary basis is illustrated by the exploitation of do- 
mains under direct control for the household of the king, and in the 
obligation of subjects to compulsory services if used, as in Egypt, to 
produce goods needed by the court or for political purposes in directly 
controlled production establishments. Modem examples are factories 
maintained by the state for the manufacture of munitions or of military 
clothing. 

The use of productive establishments for profit in free competition 
with private enterprise is rare, but has occurred occasionally, as, for 
instance, in the case of the [Prussian] Seefamdlung** On the other 
hand, the monopolistic type is very common in all periods of history, but 
reached its highest development in the Western World from the six- 
teenth to the eighteenth centuries. 

Positive privileges on a liturgical basis are illustrated by the exemp- 
• tion of the literati in China from feudal obligations. There are similar 
exemptions of privileged groups from the more menial tasks all over the 
world. In many countries educated people have been exempt from mili- 
tary service. 

Negative privilege is to be found in the extra liturgical burdens 
placed upon wealth in the democracies of Antiquity, It is also illustrated 
by the burden placed on the classes who did not enjoy the exemptions 
in the cases just mentioned. 

To take the "correlative" case under (C.) above: the subjection of 
privileged classes to specified liturgical obligations is the most important 
form of systematic provision for public needs on a basis other than that 
of regular taxation. In China, India, and Egypt, the countries with the 
earliest development of "hydraulic" bureaucracy, liturgical organization 
was based on obligations to deliveries and services in kind. It was in part 
taken over from these sources by the Hellenistic states and by the late 
Roman Empire, though there, to be sure, to an important extent it took 
the form of liturgical obligations to pay money taxes rather than contri- 
. butions in kind. This type of provision always involves the organization 
of the population in terms of occupational] y differentiated classes. It is 
by no means out of the question that it might reappear again in the 
modem world in this form if public provision by taxation should fall 



38 ] The Financing of Political Bodies i 9 9 

down and tfie satisfaction of private wants by capitalistic enterprise be- 
comes subject to extensive regulation by the state. Up until now, the 
financial difficulties of the modem state could be adequately met by the 
compulsory creation of producer cartels with monopoly rights in ex- 
change against money contributions; an example could be the compul- 
sory control of the gunpowder factories in Spain with monopoly protec- 
tion against new foundations and a continuous high contribution to the 
state treasury. The idea is suggestive: one might proceed in the same 
way in the "socialization" of the capitalistic enterprises of individual 
branches, by imposing compulsory cartels or combinations with obliga- 
tions to pay large sums in taxes. Thus they could be made useful for 
fiscal purposes, while production would continue to be oriented ra- 
tionally to the price situation. - - 



39. Repercussions of Public Financing on Private 
Economic Activity 

The way in which political and hierocratic bodies provide for their 
corporate needs has very important repercussions on the structure of 
private economic activity, A state based exclusively on money contribu- 
tions, conducting the collection of the taxes (but no other economic 
activity) through its own staff, and calling on personal service contribu- 
tions only for political and judicial purposes, provides an optimal 
environment for a rational market-oriented capitalism. A state which 
collects money taxes by tax farming is a favorable environment for the 
development of politically oriented capitalism, but it does not encourage 
the orientation of profit-making activity to the market. The granting of 
rights to contributions and their distribution as benefices normally tends 
to check the development of capitalism by creating vested interests in the 
maintenance of existing sources of fees and contributions. It thus tends 
to stereotyping and traditionalizing of the economic system. 

A political body based purely on deliveries in kind does not promote 
the development of capitalism. On the contrary, it hinders it to the 
extent to which it involves rigid binding of the structure of production 
in a form which, from a point of view of profit-making enterprise, is 
irrational, 

A system of provision by compulsory services in kind hinders the 
development of market capitalism above all through the confiscation of 
the labor force and the consequent impediments to the development of a 
free labor market. It is unfavorable to politically oriented capitalism be- 
cause it removes the typical prospective advantages which enable it to 
develop. 

Financing by means of monopolistic profit-making enterprises has in 



200 SOCr-Oi-OGICAL CATEGORIES OV ECONOMIC -iCTV,-''-; \ Ch. U 

common with the use of contributions in kind which are sold for money 
and with liturgical obligations on property, the fact: that t?;sy are all 
unfavorable to the development of a type of capitalism which is autono- 
mously oriented to the market On the contrary, they tend to repress ii by 
fiscal measures which, from the point of view of the market, are irra- 
tional, such as the establishment of privileges and of opportunities for 
money making through other channels. They are, on the other hand, 
under certain conditions favorable to politically oriented capitalism. 

What is important for profit-making enterprises with fixed capital 
and careful capital accounting is, in formal terms, above all, the calcula-, 
biltty of the tax load. Substantively, it is important that there shall not be 
unduly heavy burdens placed on the capitalistic employment of re- 
sources, which means, above all, on market turnover. On the other 
hand, speculative trade capitalism is compatible with any form of or- 
ganization of public finances which does not, through tying it to 
liturgical obligations, directly inhibit the trader's exploitation of goods 
as commodities. 

Though important, the form of organization of the obligations im- 
posed by public finance is not sufficient to determine completely the 
orientation of economic activity. In spite of the apparent absence of all 
the more important obstacles of this type, no important development 
of rational capitalism has occurred in large areas and for long periods. 
On the other hand, there are cases where, in spite of what appear to 
be very serious obstacles placed in its way by the system of public 
finances, such a development has taken place. Various factors seern to 
have played a part. Substantively, state economic policy may be very 
largely oriented to non-economic ends. The development of the intel- 
lectual disciplines, notably science and technology, is important. In addi- 
tion, obstructions due to certain value-attitudes derived from ethical and 
religious sources have tended to limit the development of an autonomous 
capitalistic system of the modern type to certain areas. It must, further- 
more, not be forgotten that forms of establishment and of the firm must, 
like technical products, be "invented." In an historical analysis, we can 
only point out certain circumstances which exert negative influences on 
the relevant thought processes — that is, influences which impede or 
even obstruct them — or .such which exert a positive, favoring influence. 
It is not, however, possible to prove a strictly inevitable causal relation- 
ship in such cases, any more than it is possible in any other case of 
stricdy individual events.** 

Apropos of the last statement, it may be noted that the concrete indi- 
viduaJ events also in the field of the natural sciences can be rigorously 



39 ] Repercussions of Public Financing on the Economy 201 

reduced to their particular causal components only under very special 
circumstances. There is thus no difference in principle between the field 
of action and other fields.** 

At this point it is possible to give only a few provisional indications 
of the fundamentally important interrelationships between the form of 
organization and administration of political bodies and the economic 
system. 

1. Historically, the most important case of obstruction of the develop- ' 
ment of market capitalism by turning public contributions into privately 
held benefices is China. The conferring of contributions as fiefs, which 
often cannot be differentiated from this, had the same effect in the Near 
East since the time of the Caliphs. Both will be discussed in the proper 
place. Tax farming is found in India, in the Near East, and in the 
Western World in Antiquity and the Middle Ages. Particularly, how- 
ever, in Antiquity, as in the development of the Roman class of tax- 
farming financiers, the equites, it became decisive in determining the 
mode of orientation of capitalistic acquisition. In India and the Near 
East, on the other hand, it was more important in determining the de- 
velopment and distribution of wealth, notably of land ownership. 

2. The most important case in history of the obstruction or capital- 
istic development by a liturgical organization of public finance is that of 
later Antiquity. It was perhaps also important in India after the 
Buddhist era and at certain periods in China. This also will be discussed 
later. 

3. The most important historical case of the monopolistic diversion 
of capitalism is, after the Hellenistic, especially the Ptolemaic pre- 
cursors, the period of royal monopolies and monopolistic concessions in 
early modem times, which again will be discussed in the proper place. 
A prelude to this development might be seen in certain measures intro- 
duced by Emperor Frederick H in Sicily, perhaps following a Byzantine 
model, and its final struggle in the conflict of the Stuarts with the Long 
Parliament." 

This whole discussion in such an abstract form has been introduced 
only in order to make an approximately correct formulation of problems 
possible. But before returning to the stages of development of economic 
activity and the conditions underlying that development, it is necessary 
to undertake a strictly sociological analysis of the non-economic compo- 
nents. 



ao. The Influence of Economic Factors on the Formation 
of Orga?iizaiions 

Economic considerations have one very general kind of sociological 
importance for the formation of organizations if, as is almost always 
tme, the directing authority and the administrative staff are remunerated. 



20 2 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ck. 11 

If this is the case, an overwhelmingly strong set of economic interests 
become bound up with the continuation of the organization, even though 
its primary ideological basis may in the meantime have ceased to exist. 

It is an everyday occurrence that organizations of all kinds which, 
even in the eyes of the participants, have become "meaningless," con- 
tinue to exist because an executive secretary or some other official makes ■ 
his "living" in this manner and otherwise would have no means of support. 

Every advantage which is appropriated, or even under certain circum- 
stances one which has not been formally appropriated, may have the 
effect of stereotyping existing forms of social action. Among the op- 
portunities for economic profit or earnings in the field of the peaceful 
provision for everyday wants, it is in general only the opportunities open 
to profit-making enterprise which constitute autonomous forces that are 
in a rational sense revolutionary; but even of them this is not always true. 

For example, the interests of bankers in maintaining their commis- 
sions long obstructed the recognition of endorsements on bills of ex- 
change. Similfte-cases of the obstruction of formally rational institutions 
by vested interests, which may well be interests in capitalistic profits, 
will frequently be met with below. They are, however, appreciably rarer 
than obstructions resulting from such factors as appropriation of bene- 
fices, status advantages, and various economically irrational forces. 



4 1 . The Mainspring of Economic Activity 

All economic activity in a market economy is undertaken and carried 
through by individuals acting to provide for their own ideal or material 
interests. This is naturally just as true when economic activity is oriented 
to the patterns of order of organizations, whether they themselves are 
partly engaged in economic activity, are primarily economic in character, 
or merely regulate economic activity. Strangely ?1 enough, this fact is often 
not taken account of. 

In an economic system organized' on a socialist basis, there would be 
no fundamental difference iti this respect. The decision-making, of 
course, would lie in the hands of the central authority, and the functions 
of the individual engaged in the production of goods would be limited to 
the performance of "technical" services; that is, to "labor" in the sense of 
the term employed here. This would be true so long as the individuals 
were being administered "dictatorially," that is, by autocratic determina- 
tion from above in which they had no voice. But once any right of "co- 
determination" were granted to the population, this would immediately 



4i ] The Mainspring of Economic Activity 203 

make possible, also in a formal sense, the fighting^ out of interest con Hie ts 
centering on the manner of decision- ma king and, above all, on the ques- 
tion of how much should be saved 0-C, put aside from current produc- 
tion). But this is not the decisive point. What is decisive is that in 
socialism, too, the individual will under these conditions ask first whether 
to him, personally, the rations allotted and the work assigned, as com- 
pared with other possibilities, appear to conform with his own interests. 
This is the criscrion by which he would orient his behavior, and violent 
power struggles would be the normal result: struggles over the alteration 
or maintenance of rations once allotted— as, for instance, over ration 
supplements for lieavv labor; appropriations or expropriations of particu- 
lar jobs, sought after because of extra remuneration or pleasant working 
conditions; work cessations, such as in strikes or lock-outs; restrictions of 
production to enforce changes in the conditions of work in particular 
branches; boycotts and the forcible dismissal of unpopular supervisors — ■ 
in short, appropriation processes of all kinds and interest struggles would 
also then be the norma] phenomena of life. The fact that they would 
for the most part be fought out through organized groups, and that ad- 
vantages would be enjoyed on the one hand by the workers engaged in 
the most essential services, on the other hand by those who were physi- 
cally strongest, would simplv reflect the 'existing situation. But however 
that might be, it would be the interests of the individual, possibly or- 
ganized in terms of the similar interests of many individuals as opposed 
to those of others, which would underlie all action. The sir«cfwre of 
interests and the relevant situation would be different, and there would 
be other means of pursuing interests, but this fundamental factor would 
remain just as relevant as before. It is of course true that economic action 
which is oriented on purely ideological grounds to the interests of others 
does exist. But it is even more certain that the mass of men do not act 
in this way, and it is an induction from experience that thev cannot do 
so and never will. 

In a completely socialized planned economy there would be scope 
only for the following; (a) the distribution of real goods on the basis 
of planned rationed needs; (b) the production of these goods according 
to a plan of production. "Income" as a category of the money economy 
would necessarily disappear, but rationed "receipts" would be' possible. 

In a market economy the striving for income is necessarily the ulti- 
mate driving force of all economic activity. For every disposition, insofar 
as it makes a claim on goods or utilities which are not available to the 
actor in a form fully ^sady for whatever use he intends, presupposes the 
acquisition of and disposition over future income, and practically every 
existing power of control over goods and services presupposes previous 



2 O 4 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ch. 11 

income. All business profits of enterprises will at some stage and in some 
form be turned into the income of economically acting individuals. In 
a "regulated economy" the principal aim of the regulations is generally 
to affect in some manner the distribution of income. (In a "natural econ- 
omy" we find no "income" in the usage of the present terminology; 
instead there are "receipts" in the form of goods and services which 
cannot be valued in terms of a unitary means of exchange.) 

Income and receipts may, from a sociological point of view, take the 
following principal forms and be derived from the following principal 
sources : 

A. — Incomes and receipts from personal services derived from special- ^ 
ized or specified functions : 

(0 Wages: (a) Freely determined wage incomes or receipts con- 
tracted at fixed rates per time period; (b) the same, determined on some 
established scale (salaries or in-kind remuneration of public officials and 
civil servants); (c) the labor return of hired workers on contracted piece 
rates; (d) entirely open labor returns. 

(2) Gains: (a) Free exchange profits deriving from the procurement 
of goods and services on an entrepreneurial basis; (b) the same, but 
regulated. In cases (a) and (b), "incomes" are calculated as net returns 
after the deduction of costs, (c) Pisdatory gains; (d) Gains derived 
from positions of political authority, fee incomes of an office, bribes, tax 
farming, etc., obtained by the appropriation of power. In cases (c) and 
(d), costs will be deducted to calculate "income" only if the activity is 
conducted as a continuous organized mode of acquisition; otherwise the 
gvoss revenue is usually considered "income." 

B. — Income and receipts from property, derived from the exploitation * 
of control over important means of production: 

(1) Those in which "incorr>e' f is normally calculated as "net rent" 
after the deduction of costs, (a) Rent obtained from the ownership of 
human beings, as in the cssf of slaves, serfs or freedmen, These may 
be receipts in money or in Lnd; they may be fixed in amount or consist 
in shares of the source's earnings after the deduction of costs of main- 
tenance, (b) Appropriated revenues derived from positions of political 
authority (after the deduction of the costs of administration), (c) Rental 
revenues derived from the ownership of land C.ntetayage payments or 
fixed rents per unit of time, either in kind or in money, seigneurial rent 
revenues — after deduction cl land taxes and costs of maintenance), (d) 
House rents after deduction ;j£ expenses, (e) Rent receipts from ap 
propriated monopolies (feudii banetites, patent royalties after the deduc- 
tion of fees). 

(2.) Property income anH receipts normally not requiring deduction 



4i ] The Mainspring of Economic Activity 205 

of costs from gross revenues: (a) Investment income (interest paid to 
households or profit-making enterprises in return for the right to utilize 
their resources or capital — see above, ch. II, sec. n). (b) "Interest" 
fejm cattle loans O/iehrenten).** (c) "Interest" from other loans of con- 
cr|te objects, and contracted "annuities in kind" (Deputatrenten). (d) 
• Interest on money loans, (e) Money interest on mortgages, (f ) Money 
returns from securities, which may consist in fixed interest or in dividends 
varying with profitability, (g) Other shares in profits, such as shares in 
the proceeds of "occasional" profit-making ventures and in profits from 
rational speculative operations, and shares in the rational long-run profit- 
making activities of all sorts of enterprises. 

All "gains" and the dividend incomes from shares are either not con- 
tracted (as to rate or amount) in advance, or only indirectly contracted 
incomes (namely, through the agreement on prices or piece rates). Fixed 
interest and wages, leases of land, and house rents are contracted in- 
comes. Income from the exercise of power, from ownership of human 
beings, from seigneurial authority over land, and predatory incomes all 
involve appropriation by force. Income from property may be divorced 
from any occupation in case the recipient lets others utilize the property. 
Wages, salaries, labor profits, and entrepreneurial profits are, on the other 
hand, occupational incomes. Other types of property incomes and gains 
may be either one or the other. An exhaustive classification is not in- 
tended here. 

Of all types of incomes, it is particularly those from business profits 
and the contracted piece rate or free labor incomes which have a dy- 
namic, revolutionary significance for economic life. Next to these stand 
incomes derived from free exchange and, in quite different ways, under 
certain circumstances, the "predatory" incomes. 

Those having a static, conservative influence on economic activity are 
above all incomes drawn in accordance with a predetermined scale, 
namely salaries, wages reckoned per unit of working time, gains from 
the exploitation of office powers, and normally all kinds of fixed interest 
and rents." 

The economic source of "incomes" (in an exchange economy) lies 
in a great majority of "cases in the exchange situation on the market for 
goods and labor services. Thus, in the last analysis, it is determined by 
consumers' demand, in connection with the more or less strong natural 
or statutory monopolistic position of the parties to market relationships. 

The economic source of "receipts" (in a natural economy) generally 
lies in the monopolistic appropriation of opportunities to exploit property 
or services for a return. 

The underpinning of all these incomes is nothing but the possibility 



2 06 SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [Ck. 11 

of violence in the defence of appropriated advantages (see above, ch. II, 
sec. i, pt, 4). Predatory incomes and related modes of acquisition are the 
return on actual violence. An exhaustive classification had to be foregone 
in this very rough first sketch. 

In spite of mahy disagreements on particular points, I consider the 
sections on "income" in R. Liefmann's works to be among the most valu- 
able of his contributions. 68 The problems of economic theory involved 
cannot be explored any further here; the interrelations between the eco- 
nomic dynamics and the soda! order will have to be discussed time and 
again. 



NOTES 

Unless otherwise indicated, notes are by Parsons. 

1 . In the economic sense. 

2. Robert Liefmann, Crundsatze der Volkswirtsckaftdehre, vol. I, 3rd ed. 
(Stuttgart 1923), p. 74ff. and ■passim. (Wi) 

3. See Franz Oppenheimer, System der So2tologie, Part III, Theorie der 
reinen and 'polittschen Okonomie, 5th ed; (Jena 1923), pp. 146-152. (Wi) 

4. The German word Technik which Weber uses here covers both the 
meanings of the English word "technique" and of "technology." Since the dis 
tinction is not explicitly made in Weber's terminology, it will have to be intro- 
duced according to the context in the translation. 

5. The term Verfiigungsgewalt, of which Weber makes a great deal of use, 
is of legal origin, implying legally sanctioned powers of control and disposal. This, 
nf course, has no place in a purely economic conceptual scheme but is essential to 
a sociological treatment of economic systems^ It is another way of saying that con- 
crete! v economic action depends on a system of property relations. 

6. This is one of the many differences between China and the Western 1 
World which Weber related to the difference of orientation to economic activities, 
growing out of the religious differences of the two civilizations. See his The Religion 
of China; Confucianism and Taoism, transl. H. H. Gerth (Glencoe, III. 195 1). 

7. Beschaffutig Weber uses this term, which could be translated variously 
as "making available," "bringing forth," "providing," etc., throughout this chapter 
in combinations where today the term "production" has become usual, and we 
normally translate it in this way. However, tKc term does cover, beyond produc- 
tion in the narrow sense, also all manner of activities which make available 
g™ lis, services, money, or anything else useful-*- that is, transport (as noted here), 
trfl.i banking, etc. Wherever it was necessary to indicate this wider meaning 
clc-.i ! v. we have translated the term as "procurement." (Wi) 

. S, It is 1 striking fact that, particularly in primitive society, a very large pro- 
porr>'>n of etonomicuily significant exchange is formally treated as an exchange 
of ;,.l's. A return gift of suitable value is definitely obligatory but the specific 
L-h;ir !- terisric of purely economically rational exchange, namely bargaining, is not 
only h ■ isi-iir but is specifically prohibited. 

o. Thv type case Weber has in mind is the relation of the state to the 
modern system of property and contract. Whether or not private citizens will en- 
gage in any given activity is no determined by the law. The latter is restricted 



Notes 207 

to the enforcement of certain .formal rules governing whoever does engage in such 
activities. 

10. This is a term which is not in general use in German economics, but 
which Weber took over, as he notes below, from G. F. Knapp. There seems to be 
no suitable English term and its use has hence been retained. 

11. Theorie des Geldes und der Umlaufsmittel (Munich 191.2). English 
edition: The Theory of Money and Credit, trsl. H. E. Batson (London 1934; 2d 
rev. ed., New Haven 1953). (Wi) 1 

12. English edition: The State Theory of Money, abridged ed., trsl. by H. M. 
Lucas and J- Bonar, publ. for the Royal Economic Society (London 1924). (Wi) 

13. Weber, as will become clear further on in this chapter, in common with 
many of his contemporaries (including the leaders of the Bolshevik revolution in 
Russia) strongly identified "socialism' and "communism" with the absence of 
money and monetary categories (money prices, money wages, etc). In the event, 
these categories were, of course, used in the Communist countries even in the 
substantial absence of free markets, although their use was attended by many 
difficulties, as yet unresolved, in the determination of rational prices. This is true 
for the internal economy of these countries, but particularly true for the exchange 
relations between the Communist countries (coexisting "communist organiza- 
tions") which ate mentioned here. For the state of the debate in Weber's day, 
see t F. A. Hayek (ed.), Collectivist Economic Planning (London 1935); an 
appreciation of Weber's contribution, p. $z& . (Wi) 

14. The concept Haushalt, as distinguished from Enoerb, is central to 
Weber's analysis in this context. He means by it essentially what Aristotle meant 
by the "management of a household" (Jowett's translation). It is a question of 
rational allocation of resources in providing for a given set of needs. The concept 
of budget and budgetary management seems to be the closest English equivalent 
in common use. 

15. Corresponding to the distinction of Haushalt and Erwerb, Weber dis- 
tinguishes Vennogen and Kapital. They are, of course, classes of property distin- 
guished in terms of their function in the management of an economic unit. There 
is no English equivalent of Vermogen in this sense, and it has seemed necessary 
to employ the more general term "wealth." Where there is danger of confusion, it 
will be amplified as 'hudgetary wealth." 

16. In common usage the term Erwerben would perhaps best be translated as 
"acquisition." This has not, however, been used, as Weber is here- using the term 
in a technical sense as the antithesis of Haushalten. "Profit-Making" brings out 
this specific meaning much more clearly. 

• 17. Since Weber wrote, there has been an extensive discussion of the problem 
of whether rational allocation of resources was possible in a completely socialistic 
economy in which there were no independent, competitively determined prices. 
The principal weight of technical opinion seems at present to take the opposite 
position from that which Weber defends here. A discussion of the problem will 
be found in Oskar Lange and F. M. Taylor, On the Economic Theory of Social- 
ism, edited by B. E. Lippincott (Minneapolis 1938). This book includes a bibli- 
ography on the subject. 

18. For the relevant articles by K. Rodbertus, see Jahrbiicher fur National- 
okonontie und Stathtik, vols. IV, V, and VIII (1865-1869); K. Biicher, Industrial 
Evolution, trsl. S. M. Wickett (New York 1901). (Wi) 

19. On franco-currencies, see Economic History, 189^ on the Egyptian "grain 
deposit banks," ibid., 59, (Wi) 

20. Otto Neurath, Bayeriscke Sozialisierungserfahrungen, Vienna 1920; id., 



; a O 8 SOCIOLOGICAL CATEGORIES op economic action [ Ch. 11 

VbUsoztaUsierung. Von der nacksten u. Hbernachsten Zukunft (Deutsche Ge- 
meinwirtschitft, vol. j;; Jena 1920), and bibliography given there. Neurath, 
incidentally, had not only written about and agitated for economic socialization, 
hut also briefly worked as director of the Bavarian Zentralvrirtschaftsamt, the 
agency in charge of socialization plans, during the Rdterepublik or "soviet" phase 
of the Bavarian revolutionary regime in the spring of 1919; when he was brought 
to trial after the suppression of the revolution, Weber testified in his defense. 
See A. Mitchell, Revolution in Bavaria 1918-1919 (Princeton 1965), pp. 293- 
305; Marianne Weber, Max Weber (Tubingen 1926), pp. 673 & 677; Ernst 
Nkkisch, Gewagtes Leben (Koln 1958), pp. 53-57. (Wi) 

11, J. C. L. Simonde de Sismondi, Essay X ("De la condition des cultivateurs 
dans la Campagne de Rome") in his Etudes sur VEcononiie Politique, vol. II 
(Paris 1838); W. Sombart, Die romische Campagna. Eine sozialoxonoroische * 
Studie (Leipzig 1888). (Wi) 

22. Oppenheimer, who was for pan of his life associated with the Henry 
George movement, saw the ultimajp basis of capitalism in the appropriation of 
land;he was himself'the founder of a "free land" movement. (Wi) 
~ 23. English translation in F. A, Hayek (ed.), Collectivkl Economic Planning 
(London 1935). (Wi) 

24. Weber seems to have said in this passage in a somewhat involved way 
what has come to be generally accepted among the more critical economic theorists 
and the welfare economists. A simpler way of stating the same point is provided 
by the doctrine of maximum satisfaction. This states the conditions under which, 
to use Weber's phrase, formal and substantive rationality would coincide. It is 
generally conceded that among these conditions is the absence of certain types of 
inequality of wealth. One of the best statements of the problem is that or Frank 
H, Knight in his essay "The Ethics of Competition," which js reprinted in the 
book of that title. The problem of the relations of formal and substantive ration- 
ality has for Weber, however, wider ramifications. 

25. Proposals for the introduction of a planned economy made in the early 
summer of 1919 by the first ReichswirUchaftsmimster of the Weimar Republic, 
the Social Democrat Rudolf Wissell and his Undersecretary Wichard von Moel- 
lendorff. After the rejection of his plans, Wissell resigned in July of that year 
and was replaced by an opponent of planning. Cf. Arthur Rosenberg, A History 
of ike German Republic, twl. I. F. D. Morrow and M. Sieveking (London 1936), 
io8ff. The text of the proposals is included in WisseU's justification* of his conduct 
of office: pToktache WbischaftS'poHtik. Unterlagen zur Beurteilung einer fiinf- 
monatlichen Wtrtschaftsfiihrung (Berlin 1919), and in part also in Deutsche 
GemeinwirUckaft, vols. 9 and 10 (Jena 19 19). (Wi) 

. 26. English ed. : Industrial Evolution, transl. (from the 3rd German edition, 
1900) byS. Morley Wickoff (New York 190 1 ). (Wi) 

■ 27. In a good deal of his discussion, Weber uses the term Betrieb in a context 
where this distinction is net important. To avoid a confusion of terms, it has in 
general been found most convenient to translate Betrieb as "enterprise" (ef. the 
definition of "enterprise" as continuous rational activity, above, ch. I:i5)> But 
wherever the distinction made here is important in the context, the term "estab- 
lishment" is used. Untemehmen has for the same reason been translated as "firm." 
(Wi) 

28. See above note. In most cases it has so far seemed best to translate 
Erwerbsbetrieb with "enterprise." 

29. See below, ch. II, sec. 20, point V. (Wi) 

30. Weber here sides with Karl Biicher against a theory of developmental 



Notes 209 

stages propounded mainly by Gustav Schmoller, who defines stages in terms of 
ruling groups, Cf. Schmoller, "Stadtische, territoriale und f -aatliche Wirtechafts- 
polink," Jahrb. f. Gesetzgebung, Verwaltung if. Volfewtrtscfeaft, VIII (1884), 
4ff. and II (1904), 668ff.; Biicher, "The Rise of the National Economy," in oil 
Industrial Evolution) op. tit., 83-149. For the polemic between Schmoller and 
Biicher, see ]b. f. G., V. & V., XVII and XVIII (1893-1894). See also below, 
Part Two, ch. XVI:i: 4 . (Wi) 

31. The corresponding German terms are: Hauswirtschaft, Dorfwirtschaft, 
grwtdheniiche and patrimonialfurstliche Haushaltstvirtschaft, Stadtwirtschaft, 
Territorkdwirtschaft, and Volkswirtschaft. 

32. What Weber apparently has in mind is the type of "trust" which con- 
trols all stages of the process of production from raw material to the finished 
product. Thus many of our steel enterprises have not only blast furnaces and 
rolling mills, but coal mines, coke ovens, railways and ships, and iron ore mines. 
The most notable example in Germany in Weber's time was the Stinnes combine. 

33. The demmrgoi were the public craftsmen ("those who work for the 
people") of ancient Greece. Whether they were really on an annual retainer, 
rather than being paid for the individual job, is Still controversial (cf. M. I, 
Finley, The World of Oddyseus [New York 1959], 5if.); Weber himself usu- 
ally cites the public artisans of Indian villages as an example (e.g., Economic 
History, 34 f., 103Q (Wi) 

34. K. Rodbertus, "Zur Geschiehte der romischen Tributsteuem seit Augus- 
tus," Jahrbiicker f, Nationalok. u. Szttistik, IV (1865); cf. also Economic History, 
108. (Wi) 

35. Carolingian Imperial regulation prescribing detailed management proce- 
dures for the royal estates (y'dlae'). (Wi) 

36. Discussed in sec 20, below. (Wi) 

37. Discussed in sec. 21, below. (Wi) 

38. On Demosthenes' shops and the Carolingian women's house (gewitiaw), 
see Economic History, 104$.; oii Roman estate shops, H. Gummerus, Der 
romische Gutsbetrieb ah whtschafi*., Qrganismus nick den Werken des Cato, 
Varro und Cofwrnella (Leipzig 1906); on the Russian serf factory, see M. I. 
Tugan-Baranovskii, Gescfticfite der russischen Vabnk, transl. B. Minzes (Berlin 
1900). (Wi) 

39. Beunden were plots of land exempt from the cultivation regulations (crop 
rotation, grazing rights, etc.) of the viHage (Mark-) association; in contrast to 
ordinary arable, they could be fenced. Herrenbeunden, or unrestricted seigneurial 
farms operated by a special officiai (J&eundehofmann), are found in early docu- 
ments. J. & W. Grimm, Dewtsches V-Zdrterbtich, I (Leipzig 1854). (Wi) 

40. The term Paria is used by Weber in a technical sense to designate a 
group occupying the same territorial area as others, but separated from them by 
ritual barriers which severely limit social intercourse between the groups. It has 
been common for such groups to have specialized occupations, particularly occu- 
pations which are despised in the larger society. 

41. What is ordinarily called a "producers' co-operative association" would be 
included in this type, but Weber conceives the type more broadly. In certain 
respects, for instance, the medieval village community could be considered an ex- 
ample. 

42. On the "freed mountains" and "mining freedom," see Economic History, 
I 4 2f. (Wi) 

43. His real name was John Winchcombe. See W. J. Ashley, An Introduc- 



2 I O SOCIOLOGICAL CATEGORIES OF ECONOMIC ACTION [ Ck. II 

tion to English Economic History and Theory, II (London 1893), Z2$t. and 
i55f.. who reprmtfcfiart of the poem; also Economic History, 132. (Wi) 

44. That is without rights of inheritance or alienation. See above chap. I, 
sec, 10. 

45. This chapter is, however, a mere fragment which Weber intended to 
develop on a scale comparable with the others. Hence most of the material to 
which this note refers was probably never written down. 

46. For a discussion of Stor, "wage work," and "price work," see Karl 
Bucher, Industrial Evolution, op. cit., chap. 4. (Wi) 

47. On coloni, see Economic History, 56, 73. (Wi) 

48. It seems curious that in this, classification Weber failed to mention the 
type of agricultural organization which has become predominant in the staple 
agricultural production of much of the United States and Canada. Of the Euro- 
pean types this comes closest to large-scale peasant proprietorship, but is much 
more definitely oriented to the market for a single staple, such as wheat. Indeed, 
in many respects this type of farm is closely comparable to some kinds of small- 
scale industrial enterprise. 

49. On this peculiar phenomenon, see Economic History, 35, (Wi) 

49a, Memorandum on the question of a legal provision to protect the home- 
steads of smallholders against legal execution ("Empfiehlt sich die Einfuhrung 
eines Heimstattenrechtes, insbesondere zum Schutz des Meinen Grundbesitzes 
gegen Zwangsvollstreekung?") in Deutscher juristentag XXIV (1897), Verhand- 
lungen, II, 15-32. (W) 

50. Weber uses the term Alltag in a technical sense, which is contrasted with 
Charisma. The antithesis will play a leading role in chap. III. In his use of the 
terms, however, an ambiguity appears of which he was probably not aware. In 
some contexts, Alltag means routine, as contrasted with things which are excep- 
tional or extraordinary and hence temporary. Thus, the charismatic movement 
led by a prophet is, in the nature of the case, temporary, and if it is to survive at 
all must find a routine basis of organization. In other contexts, Alltag means the 
profane, as contrasted with the sacred. The theoretical significance of this ambigu- 
ity has been analysed in [Parsons,] Structure of Social Action, chap. xvii. 

51. There are several different factors involved in the inability to predict 
future events with complete certainty. Perhaps the best known analysis of these 
factors is that of F. H. Knight in his Risk, UMcertawfy and Profit. 

52. On the Chinese and Hamburg kiwco-money (deposit certificates), sec 
Economic History, iSof. (Wi) 

53. In a well-known essay, "The Social Causes of the Decay of Ancient 
Civilization," (/-. of General Education, V, 1950, 75-88), Weber attributed to 
this factor an important role in the economic decline and through this the cul- 
tural changes of the Roman Empire. 

54. G. F. Knapp, The State Theory of Money, of. cit., 1 1. (Wi) 

55. For the exact definition of "currency money," see Knapp, The State 
Theory of Money, tooff. (Wi) 

56. Note money is discussed in sec. 34, below; metal money in this and the 
following section. (Wi) 

57. Most of the special terminology employed here was coined by Knapp, but 
never came to be really widely used. "Lyrric," from the Greek lytron = means of 
payment, designates specifically the agencies or institutions connected with pay- 
ments or regulating payment instruments. "Hyiodromy," literally the rate of 
exchange- (Kuts = dromoi) of currency metals (matter = hyle% Knapp defines 



Notes 2 i i 

as a state characterized by "the deliberate fixing of the pnct of a hylic metal" 
(Knapp, The State Theory of Money, 79). (Wi) 

58. It should he home in mind that this was written in 1919 or 1920, The 
situation has clearly been radically changed by the developments since that time. 

59. This is an application of Weber's general theory of the relations of inter- 
ests and ideas, which is much further developed in his writings on the Sociology 
of Religion. The most important point is that he refused to accept the common 
dilemma that a given act ij motivated either by interests or by ideas. The influ- 
ence of ideas is rather to be found in their function of defining the situations in 
which interests are pursued. Beside in Weber's own works, this point is developed 
in [Parsons'] article "The Role of Ideas in Social Action," American Sociological 
Review, October 1938. 

60. Knapp, The State Theory of Money, 48. (Wi) 

61. Mazenatisch, This term is commonly used in German but not in the 
precise sense which Weber gives it here. There seems to be no equivalent single 
term in English, so the idea has been conveyed by a phrase. 

62. For the complex history of this institution, the later Preussische Staats- 
hank, see W. O. Henderson, The State and the Industrial Revolution in Prussia, 
1740— 1870 (Liverpool 1958), i t -147. Founded in 1772 by Frederick II as a 
primarily government-owned overseas trade agency, the Seehandlung eventually 
turned into a fully government-owned commercial bank used to float state loans 
and, 1 to some extent, to finance desired industrial development. (Wi) 

63. The methodological problems touched here have been further discussed 
in various of the essays collected in the volume GAiW . The most essential point 
is that Weber held that no scientific analysis in the natural or the social field ever 
exhausts the concrete individuality of the empirical world. Scientific conceptual 
schemes and the causa! explanations attained through their use are always in 
important respects abstract. 

64. Cf. Weber's essay on "Roscher und Knies und die logischen Probleme 
der hisrorischen National 6 konomie," GAzW, znd ed., 1951, 56, 64ff. (Wi) 

6>. See Economic History, 21 3 and 256L (Wi) 

66. On cattle loans, see Economic History, 56 and 201. (Wi) 

67. The distinction here made between those types of economic interest hav- 
ing a dynamic and a static influence on economic activity respectively, is strikingly 
similar to that made by Pareto between "speculators" and "rentiers;" see TJie 
Mind and Society, especially sees. 22, $4ff. 

68. See Robert Liefmann, Ertrag itnd Einkommen attf Gmndlage einer rein, 
suhjektiven Wertlehre (Jena 1907); Liefmann, Grundsdtze der VcVuwirtschafts- 
lehre (Stuttgart 1919), vol. II, parts VIII-IX, esp. 636-710. (Wi) 



CHAPTER 



III 



THE TYPES OF LEGITIMATE 
DOMINATION 



i 

The Basis of Legitimacy 



i. Domination and Legitimacy 

Domination was defined above (ch. I:i6) as the probability that 
certain specific commands (or all commands) will be obeyed by a given 
group of persons. It thus does not include every mode of exercising 
"power" or "influence" over other persons. Domination ("authority") 1 
in this sense may be based on die roost diverse motives of compliance: 
all the way from simple habituation to the most purely rational calcula- 
tion of advantage. Hence every genuine form of domination implies 
a minimum of voluntary compliance, that is, an interest (based on 
ulterior motives or genuine acceptance) in obedience. 

Not every case of domination makes use of economic means; still less 
*does<4fr always have economic objectives. However, normally the rule 
over a considerable number of persons requires a staff (cf. ch. 1: 12), 
that is, a special group which can normally be trusted to execute the 
general policy as well as the specific commands. H»e members of the 
administrative staff may be bound to obedience to their superior (or su- 
periors) by custom, by aftectual ties, by a purely material complex of 



\ V 

i ] The Basis of Legitimacy 2 1 3 

interests, or by ideal (wertrationale) motives. The quality of these mo- 
tives largely determines the type of domination. Purely material interests 
and calculations of advantages as the basis of solidarity between the chief 
and his administrative staff result, in this as in other connexions, in a 
relatively unstable situation. Normally other elements, affectual and 
ideal, supplement such interests. In certain exceptional cases the former 
alone may be decisive. In everyday life these relationships, like others, 
are governed by custom and material calculation of advantage. But cus- 
tom, personal advantage, purely affectual or ideal motives of solidarity, 
do not form a sufficiendy reliable basis for a given domination. In addi- 
tion there is normally a further element, the belief in legitimacy. 

Experience shows that in no instance does domination voluntarily 
limit itself to the appeal to material or affectual or ideal motives as a basis 
for its continuance. In addition every such system attempts to establish 
and to cultivate the belief in its legitimacy. But according to the kind of 
legitimacy which is claimed, the type of obedience, the kind of adminis- 
trative staff developed to guarantee it, and the mode of exercising author- 
ity, 1 will all differ fundamentally. Equally fundamental is the variation in 
effect. Hence, it is useful to classify the types of domination according 
to the kind of claim to legitimacy typically made by each. In doing this, 
it is best to start from modem and therefore more familiar examples. 

1. The choice of this rather than some other basis of classification 
can only be justified by its results- The fact that certain other typical 
criteria of variation are thereby neglected for the time being and can 
only be introduced at a later stage is not a decisive difficulty. The legiti- 
macy of a system of control has far more than a merely "ideal" signifi- 
cance, if only because it has very definite relations to the legitimacy of 
property. 

2. Not every claim which is protected by custom or law should 
be spoken of as involving a relation of authority. Otherwise the worker, 
in his claim for fulfilment of the wage contract, would be exercising au- 
thority over his employer because his claim can, on occasion, be enforced 
by order of a court. Actually his formal status is that of party to a con- 
tractual relationship with his employer, in which he has certain "rights" 
to receive payments. At the same time the concept of an authority rela- 
tionship QienschajtsverhSitnis) naturally does not exclude the possibil- 
ity that it has originated in a formally free contract This is true of the 
authority of the employer over the worker as manifested in the former's 
rules and instructions regarding the work process; and also of the author- 
ity of a feudal lord over a vassal who has freely entered into the relation 
of fealty. That subjection to military discipline is formally "involuntary" 
while that to the discipline of the factory is voluntary does not alter the 
fact that the latter is also a case of subjection to authority. The position 
of a bureaucratic official is also entered into by contract and can be 



2 14 THE TYPES OF^LEGITIMATE DOMINATION ' [Ck. Ill 

freely resigned, and even the status of "subject" can often be freely 
entered into and (in certain circumstances) freely repudiated. Only in 
the limiting case of the slave is formal subjection to authority absolutely 
involuntary. 

On the other hand, we shall not speak of formal domination if a 
monopolistic position permits a person to exert economic power, that is, 
to dictate the terms of exchange to contractual partners. Taken by itself, 
this does not constitute authority any more than any other kind of in- 
fluence which is derived from some kind of superiority, as by virtue of 
erotic attractiveness, skill in sport or in discussion. Even if a big bank is 
in a position to force other banks into a cartel arrangement, this will not 
alone be sufficient to justify calling it an authority. But if there is ar> 
immediate relation of command and obedience such that the manage- 
ment of the first bank can give orders to the others with the claim that 
thev shall, and the probability that they will, be obeyed regardless of 
particular content, and if their carrying out is supervised, ifis; another 
matter. Naturally, here as everywhere the transitions are, gradual; there 
are all sorts of intermediate steps between mere indebtedness and debt 
slavery. Even the position of a "salon" can come very close to the border- 
line of authoritarian domination and yet not necessarily constitute "au- 
thority." Sharp differentiation in concrete fact is often impossible, but 
this makes clarity in the analytical distinctions all the more important. 

3. Naturally, the legitimacy of a system of domination may be treated 
sociologically only as the probability that to a relevant degree the appro- 
priate attitudes will exist, and the corresponding practical conduct ensue. 
It is by no means true that every case of submissiveness to persons in 
positions of power is primarily Cor even at all) oriented to this belief. 
Loyalty may be hypocritically simulated by individuals at by whole 
groups on purely opportunistic grounds, or Carried out in practice for 
reasons of material self-interest. Or people may submit from individual 
weakness and helplessness because there is no acceptable alternative. 
But these considerations are not decisive for the classification of types of 
domination. What is important is the fact that in a given case the partic- 
ular claim to legitimacy is to a significant degree and according to its 
type treated as "valid"; that this fact confirms the position of the persons 
claiming authority and that it helps to determine the choice of means of 
its exercise. 

Furthermore, a system of domination may — as often occurs in practice 
— be so completely protected, on the one hand by the obvious commu- 
nity of interests between the chief and his administrative staff (body- 
guards, Pretorians, "red" or "white" guards) as opposed to the subjects, on 
the other hand by the helplessness of the latter, that it can afford to drop 
even the pretense of a claim to legitimacy. But even then the mode of 
legitimation of the relation between chief and his s^aff may vary widely ' 
according to the type of basis of the relation of the authority between 
them, and, as will be shown, this variation is highly significant for the 
structure of domination, 



i ] The Basis of Legitimacy 2 1 5 

4. "Obedience" will be taken to mean that the action of the person 
obeying follows in essentials such a course that the content of the com- 
mand may be taken to have become the basis of action for its own sake. 
Furthermore, the fact that it is so taken is referable only to the formal 
obligation, without regard to the actor's own attitude to the value or lack 
of value of the content of the command as such. 

5. Subjectively, the causal sequence may vary, especially as between 
"intuition" and "sympathetic agreement." This distinction is not, how- 
ever, significant for the present classification of types of authority. 

6. The scope of determination of social relationships and cultural 
phenomena bv virtue of domination is considerably broader than appears 
at first sight. For instance, the authority exercised in the schools has much 
to do with the determination of the forms of speech and of written lan- 
guage which lire regarded as orthodox. Dialects used as the "chancellery 
language" of autocephalous political units, hence of their rulers, have often 
become orthodox forms of speech and writing and have even led to the 
formation of separate "nations" (for instance, the separation of Hol- 
land from Germany). The rule bv parents and the school, however, 
extends far beyond the determination of such cultural patterns, which 
are perhaps only apparently formal, to the formation of the young, arid 
hence of human beings generally. 

7. The fact that the chief and his administrative staff often appear 
formally as servants or agents of those they rule, naturally does nothing 
whatever to disprove the quality of dominance. There will be occasion 
later to speak of the substantive features of so-called "democracy." But a 
certain minimum of assured power to issue commands, thus of domina- 
tion, must be provided for in nearly every conceivable case. 



2. The Three Pure Types of Authority 

There are three pure types of legitimate domination. The validity 
of the claims to legitimacy may be based on: 

1. Rational grounds- — resting on a belief in the legality of enacted 
rules and the right of those elevated to authority under such rules to issue 
commands (legal authority). 

2. Traditional grounds — resting on an established belief in the sanc- 
tity of immemorial traditions and the legitimacy of those exercising 
authority under them (traditional authority); or finally, 

3. Charismatic grounds — resting on devotion to the exceptional 
sanctity, heroism or exemplary character of an individual person, and of 
the normative patterns or order revealed or ordained by him (charismatic 
authority). 

In the case of legal authority, obedience is owed to the legally estab- 
lished impersonal order. It extends to the persons exercising the authority 



2 I 6 THE TYPES OF LEGITIMATE DOMINATION [ Ck. Ill 

of office under it by virtue of the formal legality of their commands and 
only within the scope of authority of the office. In the case of traditional 
authority, ohedience is owed to the -person of the chief who occupies the 
traditionally sanctioned position of authority and who is (within its 
sphere) bound by tradition. But here the obligation of obedience is a 
matter of personal loyalty within the area of accustomed obligations. In 
the case of charismatic authority, it is the charismatically qualified leader 
as such who is obeyed by virtue of personal trust in his revelation, his 
heroism or his exemplary qualities so far as they fall within the scope of 
the individual's belief in his charisma. 

i. The usefulness of the above classification can only be judged by 
its results in promoting systematic analysis. The concept of "charisma" 
("the gift of grace") is taken from the vocabulary of early Christianity. 
For the Christian hierocracy Rudolf Sohm, in his Kirchenrecht, was the 
first to clarify the substance of the concept, even though he did not use 
the same terminology. Others (for instance, Holl in Entkustasmas und 
Bussgewahy have clarified certain important consequences of it. It is 
thus nothing new. 

2. The fact that none of these three ideal types, the elucidation of 
which will occupy the following pages, is usually to be found in his- 
torical cases in "pure" form, is naturally not a valid objection to attempt- 
ing their conceptual formulation in the sharpest possible form. In this 
respect the present case is no different from many others. Later on (sec. 
ii ff.) the transformation of pure charisma by the process of routiniza- 
n'on will be discussed and thereby the relevance of the concept to the 
understanding of empirical systems of authority considerably increased. 
But even so it may be said of every historical phenomenon of authority 
that it is not likely to be "as an open book." Analysis in terms of socio- 
logical types has, after all, as compared with purely empirical historical 
investigation, certain advantages which should not be minimized. That 
is, it can in the particular case of a concrete form of authority determine 
what conforms to or approximates such types as "charisma," "hereditary 
charisma," "the charisma of office," "patriarchy," "bureaucracy,'' the au- 
thority of status groups, and in doing so it can work with relatively un- 
ambiguous concepts. But the idea that the whole of concrete historical 
reality can be exhausted in the conceptual scheme about to be developed 
is as far from the author's thoughts as anything could be. 



« ] Legal Authority With a Bureaucratic Staff 2 1 7 

ii 

Legal Authority With a Bureaucratic 

Administrative Staff 



Note: The specifically modern type of administration has intentionally 
been taken as a point of departure in order to make it possible later to 
contrast the others with it. 



3. Legal Authority: The Pure Type 

Lagal authority rests on the acceptance of the validity of the follow- 
ing mutually inter-dependent ideas. 

1 . That any given legal norm may be established by agreement or by 
imposition, on grounds of expediency or value-rationality or both, with 
a claim to obedience at least on the part of the members of the organi- 
zation. This is, however, usually extended to include all persons within 
the sphere of power in question — which in the case of territorial bodies 
is the territorial area — who stand in certain social relationships or carry 
out forms of social action which in the order governing the organization 
have been declared to be relevant. 

2. That every body of law consists essentially in a consistent system 
of abstract rules which have normally been intentionally established. 
Furthermore, administration of law is held to consist in the application 
of these rules to particular cases; the administrative process in the rational 
pursuit of the interests which are specified in the order governing the 
.organization within the limits laid down by legal precepts and following 
principles which are capable of generalized formulation and are approved 
in the order governing the group, or at least not disapproved in it. 

3. That thus the typical person in authority, the "superior/* is him- 
self subject to an impersonal order by orienting his actions to it in his 
own dispositions and commands. (This is true not only for persons exer- 
cising legal authority who are in the usual sense "officials," but, for 
instance, for the elected president of a state.T~*~~ 

4. That the person who obeys authority does so, as it is usually 
stated, only in his capacity as a "member" of the organization and what 
he obeys is only "the law." (He may in this connection be the member 



2 I 8 THE TYPES OF LEGITIMATE DOMINATION [ Ck. HI 

of an association, of a community, of a church, or a citizen of a state.) 
5. In conformity with point 3, it is held that the members of the 
organization, insofar as they obev a person in authority, do not owe this 
obedience to him as an individual, but to the impersonal order. Hence, it 
follows that there is an obligation to obedience only within the sphere 
of the rationally delimited jurisdiction which, in terms of the order, has 
been given to him. 

The following may thus be said to be the fundamental categories of 
rational legal authority: 

(1) A continuous rule-bo'ind conduct of official business. 

(2) A specified sphere of competence (jurisdiction). This involves: 
(a) A sphere of obligations to perform functions which Has been marked 
off as part of a systematic division of labor, (b) The provision of the 
incumbent with the necessary powers, (c) That the necessary means of 
compulsion are clearly defined and their use is subject to definite condi- 
tions. A unit exercising authority which is organized in this way will be 
calbd an "administrative organ" or "agency" (Behorde). 

There are administrative organs in this sense in large-scale private 
enterprises, in parties and armies, as well as in the state and the church. 
An elected president, a cabinet of ministers, or a body of elected "Peo- 
ple's Representatives" also in this sense constitute administrative organs. 
This is not, however, the place to discuss these concepts. Not every 
administrative organ is provided with compulsory powers. But this dis- 
tinction is not important for present purposes. 

(3) The organization of offices follows the principle of hierarchy; 
that is, each lower office is under the control and supervision of a 
higher one. There is a right of appeal and of statement of grievances from 
the lower to the higher. Hierarchies differ in respect to whether and in 
what cases complaints can lead to a "correct" ruling from a higher 
authority itself, or whether the responsibility for such changes is left to the 
lower office, the conduct of which was the subject of the complaint. 

(4) The rules which regulate the conduct of an office may be techni- 
cal rules or norms. 2 In both cases, if their application is to be fully ra- 
tional, specialized training is necessary. It is thus normally true that only 
a person who has demonstrated an adequate technical training is qualified 
to be a member of the administrative staff of such an organized group, 
and hence only such persons are eligible for appointment to official 
positions. The administrative staff of a rational organization thus typically 
consists of "officials," whether the organization be devoted to political, 
hierocratic, economic — in particular, capitalistic— -or other endsi 

(5) In the rational type it is a matter of principle that the members 
of the administrative staff should be completely separated from owner- 



ii ] Legal Authority With a Bureaucratic Staff 2 1 9 

ship of the means of production or administration. Officials, employees, 
and workers attached to the administrative staff do not themselves own 
the non-human means of production and administration. These are 
rather provided for their use, in kind or in money ; and the official is 
obligated to render an accounting of their use. There exists, furthermore, 
in principle complete separation of the organization's property (respec- 
tively, capital), and the personal property (household) of the official. 
There is a corresponding separation of the place in which official func- 
tions are carried out— the "office" in the sense of premises — from the living 
quarters. 

(6) In the rational type case, there is also a complete absence of 
appropriation of his official position by the incumbent. Where "rights" to 
an office exist, as in the case of judges, and recently of an increasing 
proportion of officials and even of workers, they do not normally serve 
the purpose of appropriation by the official, but of securing the purely 
objective and independent character of the conduct of the office so that 
it is oriented only to the relevant norms. 

(7) Administrative acts, decisions, and rules are formulated and 
recorded in writing, even in cases where oral discussion is the rule or is 
even mandatory. This applies at least to preliminary discussions and 
proposals, to final decisions, and to all sorts of orders and rules. The 
combination of written documents and a continuous operation by 
officials constitutes the "office" (Bureau)' 1 which is the central focus 
of all types of modern organized action. . 

(8) Legal authority can be exercised in a wide variety of different 
forms which will be distinguished and discussed later. The following 
ideal-typical analysis will be deliberately confined for the time being to 
the administrative staff that is most unambiguously a structure of domi- 
nation: "officialdom" or "bureaucracy." 

In the above outline no mention has been made of the kind of head 
appropriate to a system of legal authority. This is a consequence of cer- 
tain considerations which can only be made entirely understandable at 
a later stage in the analysis. There are very important types of rational 
domination which, with respect to the ultimate source of authority, be- 
long to other categories. This is true of the hereditary charismatic type, 
as illustrated by hereditary monarchy, and of the pure charismatic type 
of a president chosen by a plebiscite. Other cases involve rational ele- 
ments at important points, but are made up of a combination of bureau- 
cratic and charismatic components, as is true of the cabinet form of 
government. Still others are subject to the authority of the chiefs of other 
organizations, whether their character be charismatic or bureaucratic; 
thus the formal head of a government department under a parliamentary 



2 2 O THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

regime may be a minister who occupies his position because of his au- 
thority in a party. The type of rational, legal administrative staff is cap; 
able of application in all kinds of situations and contexts. It is the most 
important mechanism for the administration of everyday affairs. For in 
that sphere, the exercise of authority consists precisely in administration. 



4. Legal Authority: The Pure Type (Continued) 

The purest type of exercise of legal authority is that which employs 
a bureaucratic administrative staff. Only the supreme chief of the organi- 
zation occupies his position of dominafnce (fierrenstellung) by virtue 
of appropriation, of election, or of having been designated for the suc- 
cession. But even feis authority consists in a sphere of legal "competence." 
The whole administrative staff under the supreme authority then con- 
sists, in the purest type, of individual officials (constituting a "mono- 
cracy" as opposed to the "collegia!" type, which will be discussed below) 
who are appointed and function according to the following criteria: 

CO They are personally free and subject to authority only with 
respect to their impersonal official obligations. 

(2) They are organized in a clearly defined hierarchy of offices, 

(3) Each office has a clearly defined sphere of competence m the 
legal sense. 

(4) The office is filled by a free contractual relationship. Thus, in 
principle, there is free selection. 

(5) Candidates are selected on the basis of technical qualifications. 
In the most rational case, this is tested by examination or guaranteed by 
diplomas certifying technical training, or both. They are appointed, not 
elected. 

^6) They are remunerated by fixed salaries in money, for the most 
part with a right to pensions. Only under certain circumstances does the- 
employing authority, especially in private organizations, have a right to 
terminate the appointment, but the official is always free to resign. The 
salary scale is graded according to rank in the hierarchy; but in addition 
to this criterion, the responsibility of the position and the requirements 
of the incumbent's social starts may be taken into act.ouiit (cf. ch. IV). 

(7) The office is treated as the sole, or at least the primary, occupa- 
tion of the incumbent. 

(8) It constitutes a career. There is a system of "promotion" accord- 
ing to seniority or. to achievement, or both. Promotion js> dependent on 
the judgment of superiors. 



» ] Legal Authority With a Bureaucratic Staff 2 2 1 

(9) The official works entirely separated from ownership of the 
means of administration and without appropriation of his position. 

(10) He is subject to strict and systematic discipline and control in 
the conduct of the office. 

This tyrSe of organization is in principle applicable with equal facility 
to a wide variety of different fields. It may be applied in profit-making 
business or in charitable organizations, or in any number of other types 
of private enterprises serving ideal or material ends. It is equally appli- 
cable to political and to hierocratic organizations. With the varying 
degrees of approximation to a pure type, its historical existence can be 
demonstrated in all these fields. 

1. For example, bureaucracy is found in private clinics, as well as in 
endowed hospitals or the hospitals maintained by religious orders. Bu- 
reaucratic organization is well illustrated by the administrative role of 
the priesthood (Kaphinokratie') in the modem [Catholic] church, which . 
has. expropriated almost all of the old church benefices, which were in 

^former days to a large extent subject to private appropriation. It is also 
illustrated by the notion of a [Papal] universal episcopate, which is 
thought of as formally constituting a universal legal, competence in reli- 
gious matters. Similarly, the doctrine of Papal infallibility is thought of 
as in fact involving a universal competence, but only one which func- 
tions "ex cathedra" in the sphere of the office, thus implying the typical 
distinction between the sphere of office and that of the private affairs of 
the incumbent. The same phenomena are found in the large-scale capi- 
talistic enterprise; and the larger it is, the greater their role. And this is 
not less true of political parties, which will be discussed separately. Fin- 
ally, the modem army is essentially a bureaucratic organization adminis- 
tered by that peculiar type of military functionary, the "officer." 

2. Bureaucratic authority is carried out in its purest form where it is 
most clearly dominated by the principle of appointment. There is no 
such thing as a hierarchical organization of elected officials. In the first 
place, ft is impossible to attain a stringency of discipline even approach- 
ing that in the appointed type, since the subordinate official can stand 
on his own election and since his prospects are not dependent on the 
superior's judgment. (On elected officials, see below, sec. 14.) 

3. Appointment by free contract, which makes free selection possible, 
is essential to modern bureaucracy. Where there is a hierarchical organi- 
zation with impersonal spheres of competence, but occupied by unfree 
officials — like slaves or ministeriaUs, who, however, function in a for- 
mally bureaucratic manner — the term "patrimonial bureaucracy" will be 
used. 

4. The role of technical qualifications in bureaucratic organizations 
is continually increasing. Even an official in a party or a trade-union 
organization is in need of specialized knowledge, though it is usually 
developed by experience rather than by formal training. In the modem 



2 2 2 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

state, the only "offices" For which no technical qualifications are re- 
quired are those of ministers and presidents. This only goes to prove that 
they are "officials" only in a formal sense, and not substantively, just like 
the managing director or president of a large business corporation. There 
is no question but that the "position" of the capitalistic entrepreneur is 
as definitely appropriated as is that of a monarch. Thus at the top of a 
bureaucratic organization, there is necessarily an element which is at 
least not purely bureaucratic. The category of bureaucracy is one ap- 
plying only to the exercise of control by means of a particular kind of 
administrative staff, 

j. The bureaucratic official normally receives a fixed salary. (By 
contrast, sources of income which are privately appropriated will be 
called "benefices" (.Pfrunden') — on this concept, see below, sec- 8.) 
Bureaucratic salaries are also normally paid in money. Though this is 
not essential to the concept of bureaucracy, it is the arrangement which 
best fits the pure type. (Payments in kind are apt to have the character 
of benefices, and the receipt of a benefice normally implies the appropri- 
ation of opportunities for earnings and of positions.) There are, how- 
ever, gradual transitions in this field with many intermediate types. 
Appropriation hy virtue of leasing or sale of offices or the pledge of in- 
come from office are phenomena foreign to the pure tvpe of bureauc- 
racy (cf. iufru, rice. 7.1:-. 111: 3). 

6. "Offices"- which do not constitute the incumbent's principal occu- 
pation, in particular "honorary" offices, belong in other categories, 
which will be discussed later (sec, 19O. The typical "bureaucratic" 
official occupies the office as his principal occupation. 

7. With respect to the separation of the official from ownership of 
the means of administration, the situation is exactly the same in the 
field of public administration and in private bureaucratic organizations, 
such as the large-scale capitalistic enterprise. 

8. Collegia] bodies will be discussed separately below (section 15). 
At the present time they are rapidly decreasing in importance in favor 
of types of organization which are in fact, and for the most part formally 
as well, subject to the authority of a single head. For instance, the col- 
legia! "governments" in Prussia have long since given way to the mono- 
cratic "district president" (RegierungfyTasident~). The decisive factor in 
this development has been the need for rapid, clear decisions, free of the 
necessity of compromise between different opinions and also free of 
shifting majorities. 

9. The modern army officer is a type of appointed official who is 
clearlv marked off by certain status distinctions. This will be discussed 
elsewhere (ch. IV). In this respect such officers differ radically from 
elected military leaders, from charismatic condottieri (sec. 10), from the 
type of officers who recruit and lead mercenary armies as a capitalistic 
enterprise, and, finally, from the incumbents of commissions which have 
been purchased (sec. 7a). There may be gradual transitions between 
these types. The patrimonial "retainer," who is separated from the means 



ii ] Legal Authority With a Bureaucratic .Staff 223 

of carrying out his function, and the proprietor of a mercenary army for 
capitalistic purposes have, along with the private capitalistic entrepre- 
neur, been pioneers in the organization of the modern type of bureauc- 
racy. This will be discussed in detail below. 



5. Monocratic Bureaucracy 

Experience tends universally to show that the purely bureaucratic 
type of administrative organization— that is, the monocratic variety of 
bureaucracy—is, from a purely technical point of view, capable of attain- 
ing the highest degree of efficiency and is in this sense formally the most 
rational known means of exercising authority over human beings. It is 
superior to any other form in precision, in stability, in the stringency 
of its discipline, and in its reliability. It thus makes possible a particularly 
high degree of'calculability of results for the heads of the organization 
and for those acting in relation to it. It is finally superior both in in- 
tensive efficiency and in the scope of its operations, and is formally 
capable of application to all Tiinds of administrative tasks. 

The development of modern forms of organization in all fields is 
nothing less than identical with the development and continual spread 
of bureaucratic administration, This is true of church and state, of armies, 
political parties, economic enterprises, interest groups, endowments, 
clubs, and many others. Its development . is, to take the most striking 
case, at the root of the modern Western state. However many forms 
there may be which do not appear to fit this pattern, such as collegial 
representative bodies, pariiamentarv committees, soviets, honorary officers, 
lay judges, and what not, and however many people may complain about 
the "red tape," it would be sheer illusion to think for a moment that 
continuous adminwtativc work can he carried out in any field except by 
means of officials working in ■ Alices. The whole pattern of everyday life 
is cut to fit th>. framework. If bureaucratic administration is, other things 
being equal, alway.- the most rational type from a technical point of 
view, the needs of mass administration make it today completely indis- 
pensable. The choice is only that between burcauu icy and dilettantism 
in the field of aJministjat'on, 

The primary source of the superiority of bureaucratic administration 
lies in the role of technical knowledge which, through the development 
of modern technology and business methods in the production of goods, 
has become completely indispensable. In this respect, it makes no dif- 
ference whether the economic system is organized on a capitalistic or a 
socialistic basis. Indeed, if in the latter case a comparable level of technical 



2 2 4 raE -TYPES OF LEGITIMATE DOMINATION [ Ch. HI 

efficiency were to be achieved, it would mean a tremendous increase in 
the importance of professional bureaucrats. 

When those subject to bureaucratic control seek to escape the in- 
fluence of the existing bureaucratic apparatus, this is normaHy possible 
only by creating an organization of their own which is equally subject 
to bureaucratization. Similarly the existing bureaucratic apparatus is 
driven to continue functioning by the most powerful interests which are 
material and objective, but also ideal in character. Without it, a 'society 
like our own — with its separation of officials, employees, and workers 
from ownership of the means of administration, and its dependence on 
discipline and on technical trainings — could no longer function. The only 
exception would be those groups, such as the peasantry, who are still in 
possession of their own means of subsistence. Even in the case of revolu- 
tion by force or of occupation by an enemy, the bureaucratic machinery 
will normally continue to function just as it has for the previous legal 
government. 

The question is always who controls the existing bureaucratic ma- 
chinery^ And such control is possible only in a very limited degree to 
persons who are not technical specialists. Generally speaking, the highest- 
ranking career official is more likely to get his way in the long run than 
his nominal superior, the cabinet minister, who is not a specialist. 

Though by no means alone, the capitalistic system has undeniably 
played a major role in the development of bureaucracy. Indeed, without 
it capitalistic production, could not continue and ahy^ rational type of 
socialism would have simply to take it over and increase its importance. , 
Its development, largely under capitalistic auspices, has created an urgent 
need for stable, strict, intensive, and calculable administration. It is this 
need which is so fateful to any kind of large-scale administration. Only 
by reversion in every field — political, religious, economic, etc. — to small- 
scale organization would it be possible to any considerable extent to 
escape its influence. On the one hand, capitalism in its modern stages 
of development requires the bureaucracy, though both have arisen from 
different historical sources. Conversely, capitalism is" the most rational 
economic basis for bureaucratic administration and .enables it to develop 
in the most rational form, especially because, from a fiscal point of view, 
it supplies the necessary money resources. 

Along with these fiscal conditions of efficient bureaucratic administra- 
tion, there are certain extremely important conditions in the fields of 
communication and transportation. The precision of its functioning re- 
quires the services of the railway, the telegraph, and the telephone, and 
becomes increasingly dependent on them- A socialistic form of organiza- 
tion would not alter this fact. It would be a question (cf. ch. II, sec. 12) 



» ] Legal Authority With a Bureaucratic Staff 225 

whether in a socialistic system it would be possible to provide conditions 
for carrying out as stringent a bureaucratic organization as has been 
possible in a capitalistic order. For socialism would, in fact, require a still 
higher degree of formal bureaucratization than capitalism. If this should 
prove not to be possible, it would demonstrate the existence of another 
of those fundamental elements of irrationality — a conflict between 
formal and substantive rationality of the sort which sociology so often 
encounters. 

Bureaucratic administration means fundamentally domination through 
knowledge. This is the feature of it which makes it specifically rational. 
This consists on the one hand in technical knowledge which, by itself, is 
sufficient to ensure it a position of extraordinary power. But in addition 
to this, bureaucratic organizations, or the holders of power who make use 
of them, have the tendency to increase their power still further by the 
knowledge growing out of experience in the service. For they acquire 
through the conduct of office a special knowledge of facts and have 
available a store of documentary material peculiar to themselves. While 
not peculiar to bureaucratic organizations, the concept of "official secrets" 
is certainly typical of them. It stands in relation to technical knowledge 
in somewhat the same position as commercial secrets do to technological 
training. It is a product of the striving for power. 

Superior to bureaucracy in the knowledge of techniques and facts is 
only the capitalist entrepreneur, within his own sphere of interest. He is 
the or.ly type who has been able to maintain at least relative immunity 
from subjection to the control of rational bureaucratic knowledge. In 
large-scale organizations, all others are inevitably subject to bureaucratic 
control just as they have fallen under the dominance of precision 
machinery in the mass production of goods. 

Ir general, bureaucratic domination has the following social conse- 
quences : 

(l) The tendency to "levelling' in the interest of the broadest pos- 
sible basis of recruitment in terms of technical competence. 

(j.) The tendency to plutocracy growing out of the interest in the 
greatest possible length of technical training. Today this often lasts uo 
to the age of thirty. 

(j) The dominan.-e of a spirit of formalistic impersonality: "Si-^e 
ira el studio" without hatred or passion, and hence without affection 
or entnusiasm. The dominant norms are concepts of straightforward duty 
without regard to personal considerations. Everyone is subject to formal 
equa!;ty of treatment; that is, everyone in the same empirical situation. 
This is the spirit in which the ideal official conducts his office. 



2 2 6 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

The development of bureaucracy greatly favors the levelling of status, 
and this can be shown historically to be the normal tendency. Con- 
versely, every process of social levelling creates a favorable situation for 
the development of bureaucracy by eliminating the office-holder who 
rules by virtue of status privileges and the appropriation of the means 
and powers of administration; in the interests of "equality," it also elimi- 
nates those who can hold office on an honorary basis or as an avocation 
by virtue of their wealth. Everywhere bureaucratization foreshadows 
mass democracy, which will be discussed in another connection. 

The "spirit" of rational bureaucracy has normally the following 
general characteristics: 

(i) Formalism, which is promoted by all the interests which are con- 
cerned with the security of their own personal situation, whatever this 
may consist in. Otherwise the door would be open to arbitrariness and 
hence formalism is the line of least resistance. 

(2) There is another tendency, "which is apparently, and in part 
genuinely, in contradiction to the above. It is the tendency of officials 
to treat their official function from what is substantively a utilitarian 
point of view in the interest of the welfare of those under their authority. 
But this utilitarian tendency is generally expressed in the enactment of 
corresponding regulatory measures which themselves have a formal 
character and tend to be treated in a formalistic spirit. (This will be 
further discussed in the Sociology of Law). This tendency to substantive 
rationality is supported by all those subject to authority who are not 
included in the group mentioned above as interested in the protection 
of advantages already secured. The problems which open up at this point 
belong in the theory of "democracy." 



Ill 

Traditional Authority 



6, The Pure Type 

Authority will be called traditional if legitimacy is claimed for it and 
believed in by virtue of the sanctity of age-old rules and powers- The 
masters are designated according to traditional rules and are obeyed be- 
cause of their traditional status (Eigenwurde) . This type of organized 



Hi } __ Traditional Authority 227 

rule is, in the simplest case, primarily based on personal loyalty which 
results from common upbringing. The person exercising authority is not 
a "superior," but a personal master, his administrative staff does not 
consist mainly of officials but of personal retainers, and the ruled are 
not "members" of an association but are either his traditional "comrades" 
(sec. 7a) or his "subjects." Personal loyalty, not the official's impersonal 
duty, determines the relations of the administrative staff to the master. 

Obedience is owed not to enacted rules but to the person who oc- 
cupies a position of authority by tradition or who has been chosen for it 
by the traditional master. The commands of such a person are legitimized 
.n one of two ways: 

a) partly in terms of traditions which themselves directly determine 
the content of the command and are believed to be valid within certain 
limits that cannot be overstepped without endangering the master's 
traditional status; 

b) partly in terms of the master's discretion in that sphere which 
tradition leaves open to him; this traditional prerogative rests primarily 
on the fact that the obligations of personal obedience tend to be essen- 
tially unlimited. 

Thus there is a double sphere: 

a) that of action which is bound to specific traditions; 

b) that of action which is free of specific rules. 

In the latter sphere, the master is free to dc good turns on the basis 
of his personal pleasure and likes, particularly in return for gifts — the 
historical sources of dues CGebiihTen'). So far as his action follows princi- 
ples at all, these are governed by considerations of ethical common sense, 
of equity or of utilitarian expediency. They are not formal principles, as 
in the case of legal authority. The exercise of power is oriented toward the 
consideration of how far master and staff can go in view of the subjects' 
traditional compliance without arousing their resistance. When resistance 
occurs, it is directed against the master or his servant personally, the ac- 
cusation being that he failed to observe the traditional limits of his power. 
Opposition is not directed against the system as- such — it is a case of 
"traditionalist revolution." 

In the pure type of traditional authority it is impossible for law or 
administrative rule to be deliberately created by legislation. Rules which 
in fact are innovations can he legitimized only by the claim that they 
have been "valid of yore," but have only now been recognized by means 
of "Wisdom" [the Weistutn of ancient Germanic law]. Legal decisions 
as "finding of the law" (_Hechtsfindung) can refer only to documents - 
of tradition, namely to precedents and earlier decisions. 



12 8 THE TYPES OF LEGITIMATE DOMINATION [ Cfe. Ill 

7. The Pure Type (Continued) 

The master rules with or without an administrative staff. On the 
latter case, see sec. 7a : I. 

The typical administrative staff is recruited from one or more of the 
following sources: 

(I) From persons who are already related to the chief by traditional 
ties of loyalty. This will be called patrimonial recruitment. Such persons 
maybe 

a) kinsmen, 

b) slaves, 

c) dependents who are officers of the household, especially 
ministeriales, 

d) clients, 

e) coloni, 

f) freedmen; 

(II) Recruitment may be extra-patrimonial, including 

a) persons in a relation of purely personal loyalty such as all sorts 
of "favorites/' 

b) persons standing in a relation of fealty to their lord (vassals), 
and, finally,. 

c) free men who voluntarily enter into a relation of personal 
loyalty as officials. 

On I.a) Under traditionalist domination it is very common For the 
most important posts to be filled with members of the ruling family or clan. 1 

b) In patrimonial administrations it is common for slaves and freed- * 
men to rise even to the highest positions. It has not been rare for Grand 
Viziers to have been at one time slaves. 

c) The typical household officials have been the following: the sen- 
echal, the marshal, the chamberlain, the carver (Truchsess), the major* 
domo, who was the head of the service personnel and possibly of the 
vassals. These are to be found everywhere in Europe. In the Orient, in 
addition, the head eunuch, who was in charge of the harem, was partic- 
ularly important, and in African kingdoms, the executioner. Further- 
more, the ruler's, personal physician, the astrologer and similar persons 
have been common. 

d) In China and in Egypt, the principal source of recruitment for 
patrimonial officials lay in the clientele of the king. 

e) Armies of coloni have been known throughout the Orient and 
were typical of the Roman nobility. (Even in modem times, in the 
Mohammedan world, armies of slaves have existed.) 

On Il.a) The regime of favorites is characteristic of every patrimo- 
nial rule and has often been the occasion for traditionalist revolutions, 
b) The vassals will be treated separately. 



Hi ] _ Traditional Authority 229 

c) Bureaucracy has first developed in patrimonial states with a body 
of officials recruited from extra-patrimonial sources; but, as will be shown 
soon, these officials were at first personal followers of their master. 

* In the pure type of traditional rule, the following features of a 
bureaucratic administrative staff are absent: 

a) a clearly defined sphere of competence subject to impersonal 
rules, 

b) a rationally established hierarchy, 

c) a regular system of appointment on the basis of free contract, and 
orderly promotion, * 

d) technical training as 2 regular requirement, 

e) (frequently) fixed salaries, in the type case paid in money. 

On a): In place of a well-defined functional jurisdiction, there is a 
conflicting series of tasks and powers which at first are assigned at the 
masters discretion. However, they tend to become permanent and are 
often traditionally stereotyped. These competing functions originate 
particularly in the competition for sources of income which are at the 
disposal of the master himself and of his representatives. It is often in 
the first instance through these interests that definite functional spheres 
are first marked off and genuine administrative organs come into being. 

At first, persons with permanent functions are household officials. 
Their (extra-patrimonial) functions outside the administration of the 
household are often in fields of activity which bear a relatively superficial 
analogy to their household function, or which originated in a discretion- 
ary act of the master and later became traditionally stereotyped. In ad- 
dition to household officials, there have existed primarily only persons 
with ad hoc commissions. 

The absence of distinct spheres of competence is evident from a 

perusal of the list of the titles of officials in any of the ancient Oriental 

states. With rare exceptions, it is impossible to associate with these titles 

- a set of rationally delimited functions which have remained stable over 

a considerable period. 

The process of delimiting permanent functions as a result of compe- 
tition among and compromise between interests seeking favors, income, 
and other forms of advantage is clearly evident in the Middle Ages. 
This phenomenon has had very important consequences. The financial 
interests of the powerful royal courts and of the powerful legal profes- 
sion in England were largely responsible for vitiating or curbing the 
influence of Roman and Canon law. In all periods the irrational division 
of official functions has been stereotyped by the existence of an estab- 
lished set of rights to fees and perquisites. 

On b) : The question of who shall decide a matter or deal with ap- 
peals — whether an agent shall be in charge of this, and which one, or 



Z 3 O THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

whether the master reserves decision for himself — is treated either tradi- 
tionally, at times by considering the provenience of certain legal norms 
and precedents taken over from the outside (.Oberhof-System);'* or 
entirely on the basis of the master's discretion in such manner that all 
agents have to yield to his personal intervention. 

Next to the traditionalist system of the [precedent-setting outside] 
"superior" court COberhof) we find the principle of Germanic law, de- 
riving from the ruler's political prerogative, that in his presence the 
jurisdiction of any court is suspended. The j«s evocandi and its modem 
derivative, chamber justice (.Kabinettsjustiz*), stem from the same source 
and the ruler's discretion. Particularly in the Middle Ages the Oberhof 
was very often the agency whose writ declared and interpreted the law, 
and accordingly the source from which the law of a given locality was 
imported. 

On c): The household" officials and favorites are often recruited in 
a purely patrimonial fashion: they are slaves or dependents Qminis- 
teriales) of the master. If recruitment has been extra-patrimonial, they 
have tended to be benefice-holders whom he can freely remove. A funda- 
mental change in this situation is first brought about by the rise of free 
vassals and the filling of offices by a contract of fealty. However, since 
fiefs are by no means determined by functional considerations, this does 
not alter the situation with respect to a) and b) [the lack of definite 
spheres of competence and clearly determined hierarchical relationships]. 
Except under certain circumstances when the administrative staff is organ- 
ized on a prebendal basis, "promotion" is completely up to the master's 
discretion (see sec. 8). 

On d)r Rational technical training as a basic qualification for office 
is scarcely to be found among household officials and favorites. However, 
a fundamental change in administrative practice occurs wherever there 
is even a beginning of technical training for appointees, regardless of 
its content. 

For some offices a certain amount of empirical training has been nec- 
essary from very early times. This is particularly true of the art of read- 
. ing and writing which was originally truly a rare "art." This has often, 
most strikingly in China, had a decisive influence on the whole develop- 
ment of culture through the mode of life of the literati. It eliminated 
the recruiting of officials from intra-patrimonial sources and thus limited 
the ruler's power by confronting him with a status group (cf . sec. 7a : in). 

On e): Household officials and favorites are usually supported and 
equipped in the master's household. Generally, their dissociation from 
the lord's own table means the creation of benefices, at first usually 
benefices in kind. It is easy for these to become traditionally stereotyped 
in amount and kind. In addition, or instead of them, the officials who 



Hi ] Traditional Authority 2 3 1 

live outside the lord's household and the lord himself count on various 
fees, which are often collected without any regular rate or scale, being 
agreed upon from case to case with those seeking favors. (On the concept 
of benefices see sec. 8.) 



ya. Gerontocracy y Patriarchalism and Patrimonialism 

I. Gerontocracy and 'primary patriarchalism are the most elementary' 
types of traditional domination where the master has no personal ad- 
ministrative staff. 

The term gerontocracy is applied to a situation where so far as rule 
over the group is organized at all it is in the hands of elders — which 
originally /Was understood literally as the eldest in actual years, who are 
the most^familiar with the sacred traditions. This is common in groups 
which are not primarily of an economic or kinship character. "Patriar- 
chalism" is the situation where, within 2 group (household) which is 
usually organized on both an economic and a kinship basis, a particular 
individual governs who is designated by a definite rule of inheritance. 
Gerontocracy and patriarchalism are frequently found side bv side. The 
decisive characteristic of both is the belief of the members that domina- 
tion, even though it is an inherent traditional right of„the master, must 
definitely be exercized as a joint right in the interest of all members and 
is thus not freely appropriated by the incumbent. In order that this shall 
be maintained, it is crucial that in both cases there is a complete absence 
of a personal (patrimonial) staff. Hence the master is still largely de- 
pendent upon the willingness of the members to comply with his orders 
since he has no machinery to enforce them. Therefore, the members 
(Genossen) are not yet really subjects (JJntertanen), 

Their membership exists by tradition and not by enactment. Obedi- 
ence is owed to the master, not to any enacted regulation. However, it 
is owed to the master only by virtue of his traditional status. He is thus 
on his part stricdy bound by tradition. 

The different types of gerontocracy will be discussed later. Elemen- 
tary patriarchalism is related to it in that the patriarch's authority car- 
ries strict obligations to obedience only within his own household. 
Apart From this, ;is in the case of the Arabian Sheik, it has onlv an ex- 
emplary effect, in the manner cf charismatic authority, or must resort to 
advice and similar means of exerting influence. ■* 

II. Patrimonialism and, in the extreme case, sultanism tend to arise 
whenever traditional domination develops an administration and a mili- 
tary force which are purely personal instruments of the master. Onlv 
then are the group members treated as subjects. Previously the master's 



2 3 2 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

authority appeared as a pre-en.-aent group right, now it turns into his 
persona] right, which he appropriates in the same way as he would any 
ordinary object of possession. In principle, he can exploit his right like 
any economic asset — sell it, pledge it as security, or divide it by inherit- 
ance. The primary external support of patrimonial power is provided by 
slaves (who are often branded), coloni and conscripted subjects, but also 
by mercenary bodyguards and armies (patrimonial troops); the latter 
practice is designed to maximize the solidarity of interest between master 
and staff. By controlling these instruments the ruler can broaden the 
range of his arbitrary power and put himself in a position to grant grace 
and favors at the expense of the traditional limitations of patriarchal and 
gerontocratic structures. Where domination is primarily traditional, even 
though it'is exercised by virtue of the ruler's personal autonomy, it will 
be crlled -patrimonial authority; where it indeed operates primarily on the 
basis of discretion, it will be called sultanism. The transition is definitely 
continuous. Both forms of domination are distinguished from elementary 
patriarchalism by the presense of a personal staff. 

Sometimes it appears that sultanism is completely unrestrained by 
tradition, but this is never in fact the case. The non- traditional element 
is not, however, rationalized in impersonal terms, but consists only in an 
extreme development of the ruler's discretion. It is this which distin- 
guishes it from every form of rational authority. 

III. Estate-type domination Qstandische Herrschafty is that form of 
patrimonial authority under which the administrative staff appropriates 
particular powers and the corresponding economic assets. As in all similar 
cases (cf. ch. II, sec. 19), appropriation may take the following forms: 

a) Appropriation may be carried out by an organized group or by a 
category of persons distinguished by particular characteristics, or 

b) it may be carried out by individuals, for life, on a hereditary basis, 
or as free property. 

Domination of the estate-type thus involves: 

a) always a limitation of the lord's discretion in selecting his adminis- 
trative staff because positions or seigneurial powers have been appropri- 

; ated by 

<0 an organized group, 

j3) a status group (see ch. IV), or 

b) often — and this will be considered as typical— appropriation by 
the individual staff members of 

<0 the positions, including in general the economic advantages 

associated with them, 
/?) the material means of administration, 
y) the governing powers. 



Hi ] Traditional Authority z 3 3 

Those holding appropriated positions may have originated historically 
1 ) from members of an administrative staff which was not previously an 
independent status group, or 2) before the appropriation, they may not 
have belonged to the staff. 

Where governing powers are appropriated, the costs of administration 
are met indiscriminately from the incumbent's own and his appropriated 
means. Holders of military powers and seigneurial members of the "feu- 
dal" army (stdndisches Heer) equip themselves and possibly their own 
patrimonial or feudal contingents. It is also possible that the provision 
of administrative means and of the administrative staff itself is appropri- 
ated as the object of a profit-making enterprise, on the basis of fixed 
contributions from the ruler's magazines or treasury. This was true in 
particular of the mercenary armies in the sixteenth and seventeenth cen- 
tury in Europe — examples of "capitalist armies." 

Where appropriation is complete, all the powers of government are 
divided between the ruler and the administrative staff members, each 
on the basis of his personal rights (Eigenrec/it); or autonomous powers 
are created and regulated by special decrees of the ruler or special com- 
promises with the holders of appropriated rights. 

On 1): An example are the holders of court offices which have be- 
come appropriated as fiefs. An example for 2) are seigneurs who ap- 
propriated powers by virtue of their privileged position or by usurpation, 
using the former as a legalization of the latter. 

Appropriation by an individual may rest on 

1. leasing, 

2. pledging as security, 

3. sale, 

4. privileges, which may be personal, hereditary or freely appro- 
priated, unconditional or subject to the performance of certain functions; 
such a privilege may be 

a) granted in return for services or for the sake of "buying" 
compliance, or 

b) it may constitute merely 'the formal recognition of actual 
usurpation of powers; 

5. appropriation by an organized group or a status group, usually a 
consequence of a compromise between the ruler and his administrative 
staff or between him and an unorganized status group; this may 

a) leave the ruler completely or relatively free in his selection 
of individuals, or 

/?) it may lay down rigid rules for the selection of incumbents; 

6. fiefs, a case which we must deal with separately. 



234 ™ E TYPES OP LEGITIMATE DOMINATION . [ Ck. Ill 

t. In the cases of gerontocracy and pure patriarchal ism, so far as 
there are clear ideas on the subject at aH, the means of administration 
are generally appropriated by the group as a whole or by the participat- 
ing households. The administrative functions arc* performed on behalf 
of the group as a whole. Appropriation" by the master personally is a 
phenomenon of patrimonial ism. It may vary enormously in degree to the 
extreme cases of a claim to full proprietorship of the land (Bodenregal) 
and to the status of master over subjects treated as negotiable slaves. 
Estate-type appropriation generally means the appropriation of at least 
part of the means of administration by the members of the ndministrative 
staff. In the case of pure patrimonial ism, there is complete separation 
of the functionary from the means of carrying out his function. But ex- 
actly the opposite is true of the estarStype of patrimonialism. The per- 
son exercising governing powers has personal control of the means of 
administration — if not all, at least of an important part of them. In full 
possession of these means were the feudal knight, who provided his own 
equipment, the count, who by virtue of holding his fief took the court 
fees and other perquisites for himself and met his feudal obligations 
from his own means (including the appropriated ones), and the Indian 
jagirdar, who provided and equipped a miiitarv unit from the proceeds 
of his tax benefice. On the other hand, a colonel who recruited a mer- 
cenary regiment on his own accg&nt, but received certain payments 
from the royal exchequer and covered his deficit cither by curtailing the 
service or from booty or requisitions, was only partly in possession of 
the means of administration and was subject jo certain regulations. By 
contrast, the Pharaoh, who organized armies of slaves or coloni, put his 
clients in command of them, and clothed, fed and equipped them from 
his own storehouses, was acting #s a patrimonial lord in full personal 
control of the means of administration. It is not always the formal mode * 
of organization which is decisive. The Mamelukes were formally pur- 
chased slaves. In fact, however, they monopolized the powers of govern- 
ment as completely as any group" of minisieriales has ever monopolized 
the service hefs. 

There are examples of service land appropriated by a closed group 
without any individual appropriation. Where this occurs, land may be 
freelv granted to individuals by the lord as long as they are members of 
the group (ease m:a:a) or the grant mav be subject to regulations 
specifying qualifications (case m:a:/!t). Thus, military or possibly 
ritual qualifications have been required of the. candidates, but once they 
arc given, close blood relations have had priority. The situation is simi- 
lar in the case of manorial or guild artisans or of peasants whose services 
have been attached for military or administrative purposes. 

2. Appropriation by lease, especially tax farming, by pledging as 
security, or by sale, have been found in the Occident, but also in the 
Orient and in India. In Antiquity, it was not un.ommon for priest- 
hoods to be sold at auction; : In the case of leasing, the aim has been 
partly a practical financial one to meet stringencies caused especially by 
the costs of war. It has partly also been a matter of the technique of 



Hi ] Traditional Authority 235 

financing, to insure a stable money income available for budgetary uses. 
Pledging as security and sale have generally arisen from the first aim. 
In the Papal States the purpose was also the creation of rents for neph- 
ews (Nepotearewten), Appropriation by pledging played a significant 
role in France as late as the -eighteenth century in filling judicial posts 
in the yarUments. The appropriation of officers' commissions by reg- 
ulated purchase continued in the British army well into the nineteenth 
century. Privileges, as a sanction of usurpation, as a reward, or as an 
incentive for political services, were common in the Middle Ages in Eu- 
rope as well as elsewhere. 



8. Patrimonial Maintenance: Benefices and Fiefs 

The patrimonial retainer may receive his support in any of the fol- 
lowing ways: 

a) by living from the lord's table, 
, b) by allowances (usually in kind) from the lord's magazines or 
treasury, 

c) by rights of land use in return for services ("service-land"), 

d) by the appropriation of property income, fees or taxes, 
- e) by fiefs. 

We shall speak of benefices insofar as the forms , of maintenance 
b) through d) are always newly granted in a traditional fashion which 
determines amount or locality, and insofar as they can be appropriated 
by"the individual, although not hereditarily. When an administrative 
staff is, in principle, supported in this form, we shall speak of prehendal- 
ism. In such a situation there may be a system of promotion on a basis of 
seniority or of particular objectively determined achievements, and it may 
also happen that a certain social status and hence a sense of status honor 
Qitandesehre) are required as a criterion of eligibility. (On the concept 
of the status group : Stand, see ch. IV.) 

Appropriated seigneurial powers will be called a fief if they are 
granted primarily to particular qualified individuals by a contract and 
if the reciprocal rights and duties involved are primarily oriented to 
conventional standards of status honor, particularly in a military sense. 
If an administrative staff is primarily supported by fiefs, we will speak 
of [Western] feudalism CLehensfeudaltsmus'). 

The transition between fiefs and military benefices is so gradual that 
at times they are almost indistinguishable. (This will be further dis- 
cussed below in ch. IV.) 

In cases d) and e), sometimes also in c), the: irjdivirjual who has ap- 
propriated governing powers pays the cost of his administration, possibly 



2 3 6 THE TYPES OF LEGITIMATE DOMINATION [ Ch, Ill 

of military equipment, in the manner indicated above, from the proceeds 
of his benefice or fief. His own authority may then become patrimonial 
(hence, hereditary, alienable, and capable of division by inheritance.) 

i. The earliest form of support for royal retainers, household offi- 
cials, priests and other types of patrimonial (for example, manorial) 
retainers has been their presence at the lord's table or their support by 
discretionary allowances from his stores. The "men's house," which is 
the oldest form of professional military organizations — to be dealt with 
later — , very often adheres to the consumptive household communism of 
a ruling stratum. Separation from the table of the lord (or of the temple 
or cathedral) and the substitution of allowances or service-land has by 
no means always been regarded with approval. It has, however, usually 
resulted from the establishment of independent families. Allowances in 
kind granted to such temple priests and officials constituted the original 
form of support of officials throughout the Near East and also existed 
in China, India, and often in the Occident. The use of land in retum 
for military service is found throughout the Orient since early Antiquity, 
and also* in medieval Germany, as a means of providing for ministeriales, 
manorial officials and other functionaries. The income sources of the 
Turkish if ahis, the Japanese samurai, and various similar types of Orien- 
tal retainers and knights are, in the present terminology, "benefices" 
and not "fiefs," as will be pointed out later. In some cases they have been 
derived from the rents of certain lands; in others, from the tax income 
of certain districts. In the latter case, they have generally been combined 
with appropriation of governmental powers in the same district. The 
concept of the fief can be further developed only in relation to that of 
the state. Its object may be a manor — a form of patrimonial domination 
— or it may be any of various kinds of claims to property income and 
tees. 

2. The appropriation of property income and rights to fees and the 
proceeds of taxes in the form of benefices and fiefs of all sorts is wide- 
spread. In India, particularly, it became an independent and highly 
developed practice. The usual arrangement was the granting of rights 
to these sources of income in retum for the provision of military con- 
tingents and the payment of administrative costs. 



9. Estate-Type Domination and Its Division of Powers 

In the pure type, patrimonial domination, especially of the estate- 
type, regards all governing powers and the corresponding economic rights 
as privately appropriated economic advantages. This does not mean that 
these powers are qualitatively undifferentiated. Some important ones are 
appropriated in a form subject to special regulations. In particular, the 
appropriation of judicial and military powers tends to he treated as a 
legal basis for a privileged status position of those appropriating them, as 



Hi ] Traditional Authority 2 3 7 



compared to the appropriation of purely economic advantages having to 
do with the income from domains, from taxes, or perquisites. Within 
the latter category, again, there tends to be a differentiation of those 
which are primarily patrimonial from those which are primarily extra- 
patrimonial or fiscal in the mode of appropriation. For our terminology 
the decisive fact is that, regardless of content, governing powers and the 
related emoluments are treated as private rights. 

In his Der deutsche Stoat des Mittelalters, von Below is quite right 
in emphasizing that the appropriation of judicial authority was singled 
out and became a source of privileged status, and that it is impossible to 
prove that the medieval political organization had either a purely patri- 
monial or a purely feudal character. Nevertheless, so far as judicial 
authority and other rights of a purely political origin are treated as 
private rights, it is for present purposes terminologically correct to speak 
of patrimonial domination. The concept itself, as is well known, has 
been most consistently developed by Haller in his Restauratum der 
Staatswissenschaften. Historically there has never been a purely patri- 
monial state. 8 

IV. We shall speak of the estate-type division of powers Qstimdisohe 
Gewaltenteilung) when organized groups of persons privileged by ap- 
propriated seigneurial powers conclude compromises with their ruler. As • 
the occasion warrants, the subject of such compromises may be political 
or administrative regulations, concrete administrative decisions or super- 
visory measures. At times the members of such groups may participate 
directly on their own authority and with their own staffs. 

1. Under certain circumstances, groups, such as peasants, which 
do not enjoy a privileged social position, may be included. This does 
not, however, alter the concept. For the decisive point is the fact that 
the members of the privileged group have independent rights. If socially 
privileged groups were absent, the case would obviously belong under 
another type. 

2. The type case has been fully developed only in the Occident. We 
must deal separately and in detail with its characteristics and with the 
reasons for its development. 

3. As a rule, such a status group did not have an administrative 
staff of its own, especially not one with independent governing powers. 



ga. Traditional Domination and the Economy 

The primary effect of traditional domination on economic activities 
is usually in a very general way to strengthen traditional attitudes. This 
is most conspicuous under gerontooatic and purely patriarchal domina- 
tion, which cannot use an administrative machinery against the members 



2 3§ THE TYPES OF LEGITIMATE DOMINATION [ Ck. HI 

of the group and hence is strongly dependent for its own legitimacy 
upon the safeguarding of tradition in every respect. 

I. Beyond this, the typical mode of financing a traditional structure 
of domination affects the economy (cf. ch. II, sec. 38). In this respect, 
patrimonialism may use a wide variety of approaches. The following, 
however, are particularly important: 

A. An oikos maintained by the ruler where needs are met on a 
liturgical basis wholly or primarily in kind (in the form of contributions 
and compulsory services). In this case, economic relationships tend to 
be strictly tradition-bound. The development of markets is obstructed, 
the use of money is primarily consumptive, and the development of 
capitalism is impossible. 

B. Provisioning the services of socially privileged groups has very 
similar effects. Though not necessarily to the same extent, the develop- 
ment of markets is also limited in this case by the fact that the property 
and the productive capacity of the individual economic units are largely 
pre-empted for the ruler's needs. 

C. Furthermore, patrimonialism can resort to monopolistic want satis- 
faction, which in part may rely on profit-making enterprises, fee-taking 
or taxation. In this case, the development of markets is, according to the 
type of monopolies involved, more or less seriously limited by irrational 
factors. The important openings for profit are in the hands of the ruler 
and of his administrative staff. Capitalism is thereby either directly ob- 
structed, if the ruler maintains his own administration, or is diverted 
into political capitalism, if there is tax farming, leasing or sale of offices, 
and capitalist provision for armies and administration (see ch. II, sec. 31). 

Even where it is carried out in money terms, the financing of pa- 
trimonialism and even more of sultanism tends to have irrational con- 
sequences for the following reasons: 

i ) The obligations placed on sources of direct taxation tend both in 
amount and in kind to remain bound to tradition. At the same time 
there is complete freedom — and hence arbitrariness — in the determina- 
tion of a) fees and b) of newly imposed obligations, and c) in the 
organization of monopolies. This element of arbitrariness is at leas; 
claimed as a right. It is historically most effective in case a), because the 
lord and his staff must be asked for the "favor" of action, far less effec- 
tive in case b), and of varying effectiveness in case c). 

2) Two bases of the rationalization of economic activity are entirely 
lacking; namely, a basis for the calculability of obligations and of the 
extent of freedom which will be allowed to private enterprise. 

D. In individual cases, however, patrimonial fiscal policy may have a 



in ] Traditional Authority 2 3 9 

rationalizing effect by systematically cultivating its sources of taxation 
and by organizing monopolies rationally. This, however, is "accidental" 
and dependent on specific historical circumstances, some of which existed 
in the Occident. 

If there is estate-type division of powers, fiscal policy tends toJ>e- a 
result of compromise. This makes the burdens relatively predictable and 
eliminates or at least sharply limits the ruler's powers to impose new 
burdens and, above all, to create monopolies. Whether the resulting 
fiscal policy tends to promote or to limit rational economic activity de- 
pends largely on the type of ruling group; primarily, it depends on 
whether it is a feudal or a patrician stratum. The dominance of the 
feudal stratum tends, because the structure of feudalized powers of gov- 
ernment is normally patrimonial, to set rigid limits to the freedom 06 
acquisitive activity and the development of markets. It may even involve 
deliberate attempts to suppress them to protect the power of the feudal 
stratum, The predominance of a patrician [urban] stratum may have the 
opposite effect. 

< i; What has been said above must suffice for the present. It will be 
necessary to return to these questions repeatedly in different connec- 
tions. . 

%. Examples for IA): the oikos of ancient Egypt and in India; IB): 
large parti or the Hellenistic world, thedate Roman Empire, China, In- 
dia, to some extent Russia and the Islamic states; IC): Ptolemaic Egypt, 
to some extent the Byzantine Empire, and in a different way the regime 
of the Stuarts in England; ID): the Occidental patrimonial states in 
the period of "enlightened despotism," especially Colbert's policies. 

II. It is not only the financial policy of most, patrimonial ngimes 
which tends to restrict the development of rational economic activity, but 
above all the general character of their administrative practices. This a 
true in the following respects: 

a) Traditionalism places serious obstacles in the way of formally 
rational regulations, which can be depended upon to remain stable and 
hence are calculable in their economic implications and exploitability. 

b) A staff of officials with formal technical training is typically absent 

(The fact that it developed in the patrimonial states of the Occident 
is, as will be shown, -accounted for by unique conditions. This stratum 
developed for the most part out of sources wholly different from the 
general structure of patrimonialara.) 

c) There is a wide scope for actual arbitrariness and the expression of 
purely personal whims on the part of the ruler and the members of his 
administrative staff.' The opening for bribery and corruption, which is 



240 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

simply a matter of the disorganization of an unregulated system of fees, 
would be the least serious effect of this if it remained a constant quantity, 
because then it would become calculable in practice. But it tends to be 
a matter which is setded from case to case with every individual official 
and thus highly variable. If offices are leased, the incumbent is put in a 
position where it is to his immediate interest to get back the capital he 
has invested by any available means of extortion, however irrational. 

d) Patriarchal ism and patrimonialism have an inherent tendency to 
regulate economic activity in terms of utilitarian, welfare or absolute 
values. This tendency stems from the character of the claim to legitimacy 
and the interest in the contentment of the subjects. It breaks down the 
type of format rationality which is oriented to a technical legal order. 
This type of influence is decisive in the case of hierocratic patrimonialism. 
In the case of pure sultanism, on' the other hand, it is fiscal arbitrariness 
which is likely to be most important. 

For all these reasons, under the dominance of a patrimonial regime 
only certain types of capitalism are able to develop: 

a) capitalist trading, 

b) capitalist tax farming, lease and sale of offices, 

c) capitalist provision of supplies for the state and the financing of 
wars, 

d) under certain circumstances, capitalist plantations and other colo- 
nial enterprises. 

All these forms are indigenous to patrimonial regimes and often reach 
a very high level of development. This is not, however, true of the type 
of profit-making enterprise with heavy investments in fixed capital and a 
rational organization of free labor which is oriented to the market pur- 
chases of private consumers. This type of capitalism is altogether too 
sensitive to all sorts of irrationalities in the administration of law, ad- 
ministration and taxation, for these upset the basis of adculahility. 

The situation is fundamentally different only in cases where a patri- 
monial ruler, in the interest of his own power and financial provision, 
develops a rational system of administration with technically specialized 
officials. For this to happen, it is necessary 1) that technical training 
should be available; 2) there must be a sufficiently powerful incentive 
to embark on such a policy — usually the sharp competition between a 
plurality of patrimonial powers within the same cultural area; 3) a very 
special factor is necessary, namely, the participation of urban communes 
as a financial support in the competition of the patrimonial units. 

1, The major forerunners of the modem, specifically Western form 
of capitalism are to be found in the organized urban communes of Eu- 



Hi ] Traditional Authority 241 

rope with their particular type of relatively rational administration. Its 
primary development took place From the sixteenth to the eighteenth 
centuries within the framework of the class structure and political or- 
ganization Qstandischen yolitischen Verhdnde) of Holland and England, 
which were distinguished by the unusual power of the bourgeois strata 
and the preponderance of their economic interests. The fiscal and utili- 
tarian imitations, which were introduced into the purely patrimonial 01 
largely feudal Qeudal-stdndisch^) states of the Continent, have in com- 
mon with the Stuart system of monopolistic industry the fact that they 
do not stand in the main line of continuity with the later autonomous 
capitalistic development. This is true in spite of the fact that particular 
measures of agricultural and industrial policy—so far and because they 
were oriented to English, Dutch, and later to French, models — played 
a very important part in creating some of the essential conditions for this 
later development. All this will be discussed further on. 

2. In certain fields the patrimonial states of the Middle Ages devel- 
oped a type of formally rational administrative staff which consisted 
especially of persons with legal training both in the civil and the canon 
law, and which differed fundamentally from the corresponding admin- 
istrative staffs in political bodies of any other time or place. It will be 
necessary later to inquire more fully into the sources of this develop- 
ment and into its significance. For the present it is not possible to go 
beyond the very general observations introduced above. 



IV 

Charismatic Authority 

1 o. Charismatic Authority and Charismatic Community 

The term "charisma" will be applied to a certain quality of an in- 
dividual personality by virtue of which he is considered extraordinary 
and treated as endowed with supernatural, superhuman, or at least spe- 
cifically exceptional powers or qualities. These are such, as are not ac- 
cessible to the ordinary person, but are regarded as of divine origin or 
as exemplary, and on the basis of them the individual concerned is 
treated as a "leader." In primitive circumstances this peculiar kind of 
quality is thought of as resting on magical powers, whether of prophets, 
persons with a reputation for therapeutic or legal wisdom, leaders in the 
hunt, or heroes in war. How the quality in question would be ultimately 



242 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

judged from any ethical, aesthetic, or other such point of view is naturally 
entirely indifferent for purposes of definition. What is alone important is 
how the individual is actually regarded by those subject to charismatic 
authority, by his "followers" or "disciples." 

For present purposes it will be necessary to treat a variety of differ- 
ent types as being endowed with charisma in this sense. It includes the 
state of a "berserk" whose spells of maniac passion have, apparently 
wrongly, sometimes been attributed to the use of drugs. In medieval 
Byzantium a group of these men endowed with the charisma of fighting 
frenzy was maintained as a kind of weapon. It includes the "shaman," 
the magician who in the pure type has to be subject to epileptoid seizures 
as a means of falling into trances. Another type is represented by 
Joseph Smith, the founder of Mormonism, who may have been a very 
sophisticated swindler (although this cannot be definitely established). 
Finally it includes the type of litterateur, such as Kurt Eisner,* who is 
overwhelmed by his own demagogic success. Value-free sociological anal- 
ysis will treat all these on the same level as it does the charisma of 
men who are the "greatest" heroes, prophets, and saviors according to 
conventional judgements. 

I. It is recognition on the part of those subject to authority which is 
decisive for the validity of charisma. This recognition is freely given and 
guaranteed by what is held to be a proof, originally always a miracle, and 
consists in devotion to the corresponding revelation, hero worship, or ab- 
solute trust in the leader. But where charisma is genuine, it is not this 
which is the basis of the claim to legitimacy. This basis lies rather in the 
conception that it is the duty of those subject to charismatic authority to 
recognize its genuineness and to act accordingly. Psychologically this rec- 
ognition is a matter of complete personal devotion to the possessor of the 
quality, arising out of enthusiasm, or of despair and hope. 

No prophet has ever regarded his quality as dependent on the attitudes 
of the masses toward him. No elective king or military leader has ever 
treated those who have resisted him or tried to ignore him otherwise 
than as delinquent in duty. Failure to take part in a military expedition 
under such leader, even though the recruitment is formally voluntary, 
has universally met with disdain, 

II. If proof and success elude the leader for long, if he appears de- 
serted by his god or his magical or heroic powers, above all, if his leader- 
ship fails to benefit his followers, it is likely that his charismatic authority 
will disappear. This is the genuine meaning of the divine right of kings 
( Gottesgnaden turn). 

Even the old Germanic kings were sometimes rejected with scorn. 
Similar phenomena are very common among so-called primitive peoples. 



iv } Charismatic Authority 2 4 3 

In China the charismatic quality of the monarch, which was transmit- 
ted unchanged by heredity, was upheld so rigidly that any misfortune 
whatever, not only defeats in war, but drought, floods, or astronomical 
phenomena which were considered unlucky, forced him to do public 
penance and might even force his abdication. If such things occurred, 
it was a sign that he did not possess the requisite charismatic virtue and 
was thus not a legitimate "Son of Heaven." 

III. An organized group subject to charismatic authority will be 
called a charismatic community (Cjemeinde~). It is based* on an emo- 
tional form of communal relationship (yergemeinschafiung). The ad- 
ministrative staff of a charismatic leader does not consist of "officials"; 
least of all are its members technically trained. It is not chosen on the 
basis of social privilege nor from the point of view of domestic or personal 
dependency. It is rather chosen in terms of the charismatic qualities of 
its members. The prophet has his disciples; the warlord his bodyguard; 
the leader, generally, his agents (Vertrauensmanner'). There is no such 
thing as appointment or dismissal, no career, no promotion. There is only 
a call at the instance of the leader on the basis of the charismatic 
qualification of those he summons. There is no hierarchy; the leader 
merely intervenes in general or in individual cases when he considers 
the members of his staff lacking in charismatic qualification for a given 
task. There is no such thing as a bailiwick or definite sphere of com- 
petence, and no appropriation of official powers on the basis of social 
privileges. There may, however, be territorial or functional limits to 
charismatic powers and to the individual's mission. There is no such 
thing as a salary or a benefice. 

Disciples or followers tend to live primarily in a communistic re- 
lationship with their leader on means which have been provided by 
voluntary gift. There are no established administrative organs. In their 
place are agents who have been provided with charismatic authority by 
their chief or who possess charisma of their own. There is no system 
of formal rules, of abstract legal principles, and hence no process of 
rational judicial decision oriented to them. But equally there is no legal 
wisdom oriented to judicial precedent. Formally concrete judgments are 
newly created from case to case and are originally regarded as divine 
judgments and revelations. From a substantive point of view, every 
charismatic authority would have to subscribe to the proposition, "It is 
written . . . but I say unto you . . ." The genuine prophet, like the 
genuine military leader and every true leader in this sense, preaches, 
creates, or demands new obligations— most typically, by virtue of revela- 
tion, oracle, inspiration, or of his own will, which are recognized by 



244 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

the members of the religious, military, or party group because they 
come from such a source. Recognition is a duty. When such an authority 
comes into conflict with the competing authority of another who also 
claims charismatic sanction, the only recourse is to some kind of a con- 
test, by magical means or an actual physical battle of the leaders. In 
principle, only one side can be right in such a conflict; the other must be 
guilty of a wrong which has to be expiated. 

Since it is "extra-ordinary," charismatic authority is sharply opposed 
to rational^ and particularly bureaucratic, authority, and to traditional 
authority, whether in its patriarchal, patrimonial, or estate variants, all of 
which are everyday forms of domination; while the charismatic type is 
the direct antithesis of this. Bureaucratic authority is specifically rational 
in the sense of being bound to intellectually analysable rules; while 
charismatic authority is specifically irrational in the sense of being foreign 
to all rules. Traditional authority is bound to the precedents handed 
down from the past and to this extent is also oriented to rules. Within the 
sphere of its claims, charismatic authority repudiates the past, and is in 
this sense a specifically revolutionary force- It recognizes no appropriation 
of positions of power by virtue of the possession of property, either on 
the part of a chief or of socially privileged groups. The only basis of 
legitimacy for it is personal charisma so long as it is proved; that is, as 
long as it receives recognition and as long as the followers and disciples 
prove their usefulness charismatically. 

The above is scarcely in need of further discussion. What has been 
said applies to purely plebiscitary rulers (Napoleon's "rule of genius" 
elevated people of humble origin to thrones and high military com-' 
mands) just as much as it applies to religious prophets or war heroes. 

IV. Pure charisfna is specifically foreign to economic considerations. 
Wherever it appears, it constitutes a "call" in the most emphatic sense 
of the word, a "mission" or a "spiritual duty." In the pure type, it disdains 
and repudiates economic exploitation of the gifts of grace as a source of 
income, though, to be sure, this often remains more an ideal than a fact. 
It is not that charisma always demands a renunciation of property or even 
of acquisition, as under certain circumstances prophets and their disciples 
do. The heroic warrior and his followers actively seek booty; the elective 
ruler or the charismatic party leader requires the material means of power. 
The former in addition requires a brilliant display of his authority to 
bolster his prestige. What is despised, so long as the genuinely charismatic 
type is adhered to, is traditional or rational everyday economizing, the 
attainment of a regular income by continuous economic activity devoted 
to this end. Support by gifts, either on a grand scale involving donation, 



iv ] Charismatic Authority 2 4 5 

endowment, bribery and honoraria, or by begging, constitute the volun- 
tary type of support. On the other hand, "booty" and extortion, whether 
by force or by other means, is the typical form of charismatic provision 
for needs. From the point of view of rational economic activity, charis- 
matic want satisfaction is a typical anti-economic force. It repudiates any 
sort of involvement in the everyday routine world. It can only tolerate, 
with an attitude of complete emotional indifference, irregular, unsys- 
tematic acquisitive acts. In that it relieves the recipient of economic 
concerns, dependence on property income can be the economic basis of 
a charismatic mode of life for some groups; but that is unusual for the 
normal charismatic "revolutionary." 

The fact that incumbency of church office has been forbidden to 
the Jesuits is a rationalized application of this principle of discipleship. 
The fact that all the "virtuosi" of asceticism, the mendicant orders, and 
fighters for a faith belong in this category, is quite clear. Almost all 
prophets have been supported by voluntary gifts. The well-known sav- 
ing of St. Paul, "If a man does not work, neither shall he eat," was 
idirected against the parasitic swarm of charismatic missionaries. It obvi- 
ously has nothing to do with a positive valuation of economic activity 
for its own sake, but only lays it down as a duty of each individual 
somehow to provide for his own support. This because he realized that 
the purely charisma lie parable of the lilies of the field was not capable 
of literal application, but at best "taking no thought for the morrow" 
could be hoped for. On the other hand, in a case of a primarily artistic 
type of charismatic discipleship it is conceivable that insulation from 
economic struggle should mean limitation of those really eligible to the 
"economically independent"; that is, to persons living on income from 
property. This has been true of the circle of Stefan George, at least in its 
primary intentions. 

V. In traditionalist periods, charisma is the great revolutionary force. 
The likewise revolutionary force of "reason" works from without: by alter- 
ing the situations of life and hence its problems, finally in this way 
changing men's attitudes toward them; or it intellectualizes the individ- 
ual. Charisma, on the other hand, may effect a subjective or internal 
reorientation born out of suffering, conflicts, or enthusiasm. It may then 
result in a radical alteration of the central attitudes and directions of ac- 
tion with a completely new orientation of all attitudes toward the differ- 
ent problems of the "world." 7 In prerationalistic periods, tradition and 
charisma between them have almost exhausted the whole of the orienta- 
tion of action. 



246 THE TYPES OF UEGITIMATE DOMINATION { Ck. HI 

V 

The Routinization of Charisma 



1 1 . The Rise of the Charismatic Community and the 
Problem of Succession 

In its pure form charismatic authority has a character specifically 
foreign to everyday routine structures, The social relationships directly 
involved are strictly personal, based on the validity and practice of 
charismatic personal qualities. If this is not to remain a purely transitory 
phenomenon, but to take on the character of a permanent relationship, a 
"community" of disciples or followers or a party organization or any sort 
of political or hierocratic organization, it is necessary for the character of 
charismatic authority to become radically changed. Indeed, in its pure 
form charismatic authority may be said to exist only in statu nascendi. 
It cannot remain stable, but becomes either traditionalized or rationalized, 
or a combination of both . 

The following are the principal motives underlying this transforma- 
tion^ (a) The ideal and also the material interests of the followers in the 
continuation and the continual reactivatiori of the community, (b) the 
still stronger ideal and also stronger material interests of the members of 
the administrative star!, the disciples, the party workers, or others in 
continuing their relationship. Not only this, but they have an interest 
in continuing it in such a way that both from an ideal and a material 
point of view, their own position is put on a stable everyday basis. This 
means, above all, making it possible to participate in norma] family re- 
lationships or at least to enjoy a secure social position in place of the kind 
of discipleship which is cut off from ordinary worldly connections, nota- 
bly in the family and in economic relationships. 

These interests generally become conspicuously evident with the dis- 
appearance of the personal charismatic leader and with the problem of 
succession- The way in which this problem is met — if it is met at all and 
the charismatic community continues to exist or now begins to emerge 
— is of crucial importance for the character of the subsequent social re- 
lationships. The following are the principal possible types of solution: — 

(a) The search for a new charismatic leader on the basis of criteria 
of the qualities which will fit him for the position of authority. 



v ] The Routinizatton of Charisma 247 

This is to be found in a relatively pure type in the process of choice 
of a new Dalai Lama. It consists in the search for a child with charac- 
teristics which are interpreted to mean that he is a reincarnation of the 
Buddha. This is very similar to the choice of the new Bull of Apis. 

In this case the legitimacy of the new charismatic leader is bound to 
certain distinguishing characteristics; thus, to rules with respect to which 
a tradition arises. The result is a process of traditionalization in favor of 
which the purely personal character of leadership is reduced. 

(b) Revelation manifested in oracles, lots, divine judgments, or other 
techniques of selection. In this case the legitimacy of the new leader is 
dependent on the legitimacy of the technique of his selection. This in- 
volves a form of legalization. 

It is said that at times the Shofefim [Judges] of Israel had this charac- 
ter. Saul is said to have been chosen by the old war oracle. 

(c) Designation on the part of the original charismatic leader of his 
own successor and his recognition on the part of the followers. 

This is a very common form. Originally, the Roman magistracies 
were filled entirely in this way. The system survived most clearlv into 
later times in the appointment of the dictator and in the institution of 
the mterrex? 

In this case legitimacy is acquired through the act of designation. 

(d) Designation of a successor by the charismatically qualified ad- 
ministrative staff and his recognition by the community. In its typical form 
this process should quite definitely not be interpreted as "election" or 
"nomination" or anything of the sort. It is not a matter of free selection, 
but of one which is strictly bound to objective duty. It is not to be 
determined merely by majority vote, but is a question of arriving at the 
correct designation, the designation of die right person who is truly 
endowed with charisma. It is quite possible that the minority and not 
the majority should be right in such a case. Unanimity is often required. 
It is obligatory to acknowledge a mistake and persistence in error is a 
serious offense. Making a wrong choice is a genuine wrong requiring 
expiation. Originally it was a magical offence. 

Nevertheless, in such a case it is easy for legitimacy to take on the 
character of an acquired right which is justified by standards of the 
correctness of the process by which the position was acquired, for the 
most part, by its having been acquired in accordance with certain formali- 
ties such as coronation. 



in 



This was the original meaning of the coronation of bishops and kings 
the Western world by the clergy or the high nobility with the "con- 



248 THE TYPES OF LEGITIMATE DOMINATION { Ch. Ill 

sent" of the community. There are numerous analogous phenomena all 
over the world. The fact that this is the origin of the modern conception 
of "election" raises problems which will have to be gone into later. 8 

(e) The conception that charisma is a quality transmitted by heredity; 
thus that it is participated in by the kinsmen of its bearer, particularly by 
his closest relatives. This is the case of hereditary charisma. The order 
of hereditary succession in such a case need not be the same as that which 
is in force for appropriated rights, but may differ from it. It is also some- 
times necessary to select the proper heir within the kinship group by 
some of the methods just spoken of. 

Thus in certain African states brothers have had to fight for the suc- 
cession. In China, succession had to take place in such a way that the 
relation of the living group to the ancestral spirits was not disturbed. 
The rule either of seniority or of designation by the followers has been 
very common in the Orient. Hence, in the House of Osman, it used to 
be obligatory to kill off all other possible aspirants. 

Only in Medieval Europe and in Japan, elsewhere sporadically, has 
the principle of primogeniture, as governing the inheritance of authority, 
become clearly established. This has gready facilitated the consolidation 
of political groups in that it has eliminated struggle between a plurality 
of candidates from the same charismatic family. 

In the case of hereditary charisma, recognition is no longer paid to 
the charismatic qualities of the individual, but to the legitimacy of the 
position he has acquired by hereditary succession. This may lead in the 
direction either of traditionalization or of legalization. The concept of, 
divine right is fundamentally altered and now comes to mean authority 
by virtue of a personal right which is not dependent on the recognition 
of those subject to authority. Personal charisma may be totally absent. 

Hereditary monarchy is a conspicuous illustration.' In Asia there 
have beer, very numerous hereditary priesthoods', also, frequently, the 
hereditary charisma of kinship groups has been treated as a criterion of 
social rank.and of eligibility for fiefs and benefices. 

(f) The concept that charisma may be transmitted by ritual means 
from one bearer to another or may be created in a new person. The 
concept was originally magical. It involves a dissociation of charisma 
from a particular individual, making it an objective, transferrable entity. 
In particular, it may become the charisma of office. In this case the belief 
in legitimacy is no longer directed to the individual, but to the acquired 
qualities and to the effectiveness of the ritual acts. 

The most important example is the transmission of priestly charisma 
by anointing, consecration, or the laying on of hands; and of royal au- 



v ] The Routinization of Charisma 2 4 9 

thority, by anointing and by coronation. The character indelebilis thus 
acquired means that the charismatic qualities and powers of the office 
are emancipated from the personal qualities of the priest. For precisely 
this reason, this has, from the Donatist and the Montanist heresies down 
to the Puritan revolution, been the subject of continual conflicts. The 
"hireling" of the Quakers is the preacher endowed with the charisma of 
office. 



i z. Types of Appropriation by the Charismatic Staff 

Concomitant with the routinization of charisma with a view to insur- 
ing adequate succession, go the interests in its routinization ort the part 
of the administrative staff. It is only in the initial stages and so long as 
the charismatic leader acts in a way which is completely outside everyday 
social organization, that it is possible for his followers to live com- 
munistically in a community of faith and enthusiasm, on gifts, booty, or 
sporadic acquisition. Only the members of the small group of enthusiastic 
disciples and followers are prepared to devote their lives purely idealis- 
tically to their call. The great majority of disciples and followers will in 
the long run "make their living" out of their "calling" in a material sense 
as well. Indeed, this must be the case if the movement is not to dis- 
integrate. 

Hence, the routinization of charisma also takes the form of the ap- 
propriation of powers and of economic advantages by the followers or 
disciples, and of regulating recruitment. This process of traditionalization 
or of legalization, according to whether rational legislation is involved or 
not, may take any one of a number of typical forms. 

1. The" original basis of recruitment is personal charisma. However, 
with routinization, the followers or disciples may set up norms for re- 
cruitment, in particular involving training or tests of eligibility. Charisma 
can only be "awakened" and "tested"; it cannot be "learned" or "taught." 
.All types of magical asceticism, as practiced by magicians and heroes, and 
all novitiates, belong in this category. These are means of closing the 
administrative staff. (On the charismatic type of education, see ch. IV 
below [unfinished].) ,, 

Only the proved novice is allowed to exercise authority. A genuine 
charismatic leader is in a position to oppose this type of prerequisite for 
membership; his successor is not free to do so, at least if he is chosen by 
the administrative staff. 

This type is illustrated by the magical and warrior asceticism of 
the "men's house" with initiation ceremonies and age groups. An indi- 



2 JO THE TYPES OF LEGITIMATE DOMINATION [ O-- 111 

vidual who has not successfully gone through the initiation, remains a 
"woman"; that is, he is excluded from the charismatic group. 

2. It is easy for charismatic norms to be transformed into those de- 
fining a traditional social status (on a hereditary charismatic basis). If 
the leader is chosen on a hereditary basis, the same is likely to happen 
in the selection and deployment of the staff and even the followers. 
The term "clan state" (Gescklechterstaat) will be applied when a 
political body is organized strictly and completely in terms of this prin- 
ciple of hereditary charisma. In such a case, all appropriation of govern- 
ing powers, of fiefs, benefices, and all sorts of economic advantages fol- 
low the same pattern. The result is that all powers and advantages of 
all sorts become traditionalized. The heads of families, who arc tradi- 
tional geron toe rats or patriarchs without personal charismatic-legitimacy, 
regulate the exercise of these powers which cannot be taken away from 
their family. It is not the type of position he occupies which determines 
the rank of a man or of his family, but rather the hereditary charismatic 
rank of his family determines the position he will occupy. 

Japan, before the development of bureaucracy, was organized in this 
way. The same was undoubtedly true of China as well where, before 
the rationalization which took place in the territorial states, authority 
was in the hands of the "old families." Other types of examples are furn- 
ished by the caste system in India, and by Russia before the mestni- 
ckestvo was introduced. Indeed, all hereditary social classes with estab- 
lished privileges belong in the same category. 

3. The administrative staff may seek and achieve the creation and 
appropriation of individual positions and the corresponding economic 
advantages for its members. In that case, according to whether the 
tendency is to traditionalization or legalization, there will develop (a) 
benefices, (h) offices, or (c) fiefs. In the first case a prebendal organiza- 
tion will result; in the second, patrimonialism or bureaucracy; in the 
third, feudalism. These revenue sources become appropriated and replace 
provision from gifts or booty without settled relation to the everyday 
economic structure. 

Case (a), benefices, may consist in rights to the proceeds of begging, 
to payments in kind, or to the proceeds of money taxes, or finally, to the 
proceeds of fees. The latter may result from the former through the 
regulation of the original provision by free gifts or by "booty" in terms 
of a rational organization or finance. 

Regularized begging is found in Buddhism; benefices in kind, in the 
Chinese and Japanese "rice rents"; support by money taxation has been 



v ] The Routinization of Charisma 2 5 1 

the rule in -all the rationalized conquest states. The last case is common 
everywhere, especially on the part of priests and judges and, in India, 
even the military authorities. 

Case (b), the transformation of the charismatic mission into an 
office, may have more of a patrimonial or more of a bureaucratic char- 
acter. The former is much the more common; the latter is found prin- 
cipally in Antiquity and in the modem Western world. Elsewhere it is 
exceptional. 

In case (c), only land may be appropriated as a fief, whereas the 
position as such retains its originally charismatic character, or powers 
and authority may be fully appropriated as fiefs. It is difficult to dis- 
tinguish the two cases. However, orientation to the charismatic character 
of the position was slow to disappear, also in the Middle Ages. 



i ia. Status Honor and the Legitimation of Authority 

For charisma to be transformed into an everyday phenomenon, it is 
necessary that its anti-economic character should be altered. It must be 
adapted to some form of fiscal organization to provide for the needs of 
the group and hence to the economic conditions necessary for raising 
taxes and contributions. When a charismatic movement develop in the 
direction of prebendal provision, the "laity" becomes differentiated from 
the "clergy" — derived from *A%>os, meaning a "share" — , that is, the 
participating members of the charismatic administrative staff which has 
now become routinized. These are the priests of the developing "church." 
Correspondingly, in a developing political body — the "sfate" in the ra- 
tional case — vassals, benefice-holders, officials or appointed party officials 
(instead of voluntary party workers and functionaries) are differentiated 
from the "tax payers." 

This process is very conspicuous in Buddhism -and in the Hindu 
sects-— see the Sociology of Religion below. The same is true in all con- 
quest states which have become rationalized to form permanent struc- 
tures; also of parties and other originally charismatic structures. 

It follows that, in the course of routinization, the charismatically 
ruled organization is largely transformed into one of the everyday au- 
thorities, the patrimonial form, especially in its estate-type or bureaucratic 
variant. Its original peculiarities are apt to be retained in the charismatic 
status honor acquired by heredity or office-holding. This applies to all 
who participate in the appropriation, the chief himself and the members 



2 5 2 THE TYPES OF LEGITIMATE DOMINATION [ Cfe. Ill 

of his staff. It is thus a matter of the type of prestige enjoyed by ruling 
groups. A hereditary monarch by "divine right" is not a simple patrimo- 
nial chief, patriarch, or sheik; a vassal is not a mere household retainer 
or official. Further details must be deferred to the analysis of status 
groups. 

As a rule, routinization is not free of conflict. In the early stages 
personal claims on the charisma of the chief are not easily forgotten and 
the conflict between the charisma of the office or of hereditary status with 
personal charisma is a typical process in many historical situations. 

i. The power of absolution— that is, the power to absolve from mor- 
tal sins — was held originally only by personal charismatic martyrs or 
ascetics, but became transformed into a power of the office of bishop 
or priest. This process was much slower in the Orient than in the Occi- 
dent because in the latter is was influenced by the Roman conception of 
office. Revolutions under a charismatic leader, directed against heredi- 
tary charismatic powers or the powers of office, are to be found in all 
types of organizations, from states to trade unions. (This last is particu- 
larly conspicuous at the present time [1918/20],) The more highly de- 
veloped the interdependence of different economic units in a monetary 
economy, the greater the pressure of the everyday needs of the followers 
of the charismatic movement becomes. The effect of this is to strengthen 
the tendency to routinization, which is everywhere operative, and as a 
rule has rapidly won out. Charisma is a phenomenon typical of pro- 
phetic movements or of expansive political movements in their early 
stages. But as soon as domination is well established, and above all as 
soon as control over large masses of people exists, it gives way to the 

, ti forces of everyday routine. , 

2. One of the decisive motives underlying all cases of the routiniza- 
tion of charisma is naturally the striving for security. This means legiti- 
mization, on the one hand, of positions of authority and social prestige, 
on the other hand, of the economic advantages enjoyed by the followers 

: and sympathizers of the leader. Another important motive, however, lies 
in the objective necessity of adapting the order and the staff organiza- 
tion to the normal, everyday needs and conditions of carrying on admin- 
istration. In this connection, in particular, there are always points at 
which traditions of administrative practice and of judicial decision can 
take hold as these are needed by the normal administrative staff and 
those subject to its authority, It h further necessary that there should be 
some definite order introduced into the organization of the administrative 
staff itself. Finally, as will be discussed in detail below, it is necessary 
for the administrative staff and .ill its administrative practices to be 
adapted to everyday economic conditions. It is not possible for the costs 
of permanent, routine administration to he met by "hooty," contributions, 
gifts, and hospitality, as is typical of the pure type of military and pro- 
phetic charisma. 



v ] The Routtnization of Charisma - 5 3 

3. The process of routinization is thus not by any means confined to 
the problem of succession and does not stop when this has been solved. 
On the contrary, the most fun da mental problem is that of making a 

„' transition from a charismatic administrative staff, and the corresponding 
.principles of administration, to one which is adapted to everyday condi- 
'tions. The problem of succession, however, is crucial because through it 
occurs the routinization of the charismatic focus of the structure. In it, 
the character of the leader himself and of h:s claim ^o legitimacy is al- 
tered. This process involves peculiar and characteristic conceptions "which 
are understandable only in this context and do not apply to the problem 
of transition to traditional or legal patterns of order and types or admin- 
istrative organization. The most important of the modes of meeting the 
problem of succession are the charismatic designation of a successor and 
hereditary charisma. 

4. As has already been noted, the most important historical example 
of designation by the charismatic leader of his own successor is Rome. 
For the rex, this arrangement is attested by tradition; while for the ap- 
pointment of the dictator and of the co-emperor and successor in the 
Principate, it has existed in historical times. The way in which all the 
higher magistrates were invested with the itrvperiunt shows clearly that 
they also were designated as successors by the military commander, sub- 
ject to recognition by the citizen army. The fact that candidates were 
examined by the magistrate in office and that originally they could be 
excluded on what were obviously arbitrary grounds shows clearly what 
was the nature of the development. 

5. The most important examples of designation of a successor by the 
charismatic followers of the leader are to be found in the election of 
bishops, and particularly of the Pope, by the original system of designa- 
tion by the clergy and recognition by the lay community. The investiga- 
tions of U. Stutz have made it probable that the -election of the German 
king was modelled on that of the bishops. 1 " He was designated by a 
group of qualified princes and recognized by the "people," that is, those 
bearing arms. Similar arrangements are very common. 

/ 6. The classical case of the development of hereditary charisma is 
'that of caste in India. All occupational qualifications, and in particular 
all the qualifications for positions of authority and power, have there 
come to be regarded as strictly bound to the inheritance of charisma. 
Eligibility for fiefs, involving governing powers, was limited to mem- 
bers of the royal kinship group, the fiefs being granted by the eldest of 
the group. All types of religious office, including the extraordinarily 
important and influential position of guru, the directeur de I'dme, were 
treated as bound to hereditary charismatic qualities. The same is true of 
all sorts of relations to traditional customers and of all positions in the 
village organization, such as priest, barber, laundryman, watchman, etc. 
The foundation of a sect always meant the development of a hereditary 
hierarchy, as was true also of Taoism in China. Also in the Japanese 



a J 4 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

"feudal" state, before the introduction of a patrimonial officialdom on the 
Chinese model, which then led to prebends and a new feudalization, 
social organization was based purely on hereditary charisma. 

This- kind of hereditary charismatic right to positions of authority 
has been developed in similar ways all over the world. Qualification by 
virtue of individual achievement has been replaced by qualification by 
birth. This is everywhere the basis of the development of hereditary 
aristocracies, in the Roman nobility, in the concept of the stiffs regit*, 
which Tacitus describes among the Germans, in the rules of eligibility 
to tournaments and monasteries in the late Middle Ages, and even in 
the genealogical research conducted on behalf of the parvenu aristocracy 
of the United States. Indeed, this is to be found everywhere where ' 
hereditary status groups have become established. 

Relationship to the economy: The process of routinization of charisma 
is in very important respects identical with adaptation to the conditions 
of the economy, since this is the principal continually operating force in 
everyday life. Economic conditions in this connection play a leading role 
and do not constitute merely a dependent variable. To a very large ex- 
tent the transition to hereditary charisma or the charisma of office serves 
as a means of legitimizing existing or recently acquired powers of con- 
trol over economic goods. Along with the ideology of loyalty, which is 
certainly by no means unimportant, allegiance to hereditary monarchy in 
particular is very strongly influenced by the consideration that all in- 
herited and legitimately acquired property would be endangered if 
people stopped believing in the sanctity of hereditary succession to the 
throne. It is hence by no means fortuitous that hereditary monarchy is 
more adequate to the propertied strata than to the proletariat. 

Beyond this, it is not possible to say anything in general terms, which 
would at the same time be substantial and valuable, on the relations of 
the various possible modes of adaptation to the economic order. This 
must be reserved to the more detailed treatment. The development of 
a prebendal structure, of feudalism, and the appropriation of all sorts of 
advantages on a hereditary charismatic basis may in all cases have the 
same stereotyping effect on the economic order if they develop from 
charismatic starting points as if they developed from early patrimonial 
or bureaucratic stages. In economic respects, too, the revolutionary impact 
of charisma is usually tremendous; at first, it is often destructive, because 
it means new modes of orientation. But routinization leads to the exact 
reverse. 

The economics of charismatic revolutions will have to be discussed 
separately; it is a different matter altogether. 



vi ] Feudalism 2 5 5 

vi 

Feudalism 



1 zh. Occidental Feudalism and Its Conflict with 
Patrimonialism 

The case noted above, under sec. 12:3c [the fief], requires separate 
discussion. This is because a structure of domination may develop out of 
it which is different both from patrimonialism and from genuine or 
hereditary charisma and which has had a very great historical signifi- 
cance, namely, feudalism. We will distinguish two types: the one based 
on fiefs O^ehensfe-iulalismus) and the other based on benefices (pre- 
bendal feudalism). All other forms in which the use of land is granted 
in exchange for military service really have a patrimonial character and 
hence will not be treated here separately. For the different kinds of 
benefices will be discussed later in detail. 

A. A fief involves the following elements: 

(1) The appropriation of powers and rights of exercising authority. 
Appropriation as a fief may apply only to powers relevant within a 
master's household or it may be extended to include those of a political 
association. The latter type may he restricted to economic rights — that is, 
fiscal rights — or it may also include political powers proper. Fiefs are 
granted in return for specific services. Normally they are primarily of a 
military character, but they may also include administrative functions. 
The grant of the fief takes a very specific form. It is carried out 

(2) on a purely personal basis for the lifetime of the lord and of the 
.recipient of the fief, his vassal. , 

(3) The relationship is established by a contract, thus it is supposed 
that the vassal is a free man. 

(4) If feudalism is based on fiefs, the recipient adheres to the style 
of life of a knightly status group. 

(5) The contract of fealty is not an ordinary business contract, but 
establishes a solidary, fraternal relationship which involves reciprocal 
obligations of loyalty, to be sure, on a legaUy unequal basis. These obli- 
gations are upheld by 

(a) knighdy status honor, and (b) are clearly delimited. 

The transition pointed out above at the end of section 1 2 [i.e., from 



256 THE TYPES OF LEGITIMATE DOMINATION [ CM. Ill 

mere appropriation of land to full appropriation of powers] takes place 
^wben fiefs are appropriated hereditarily, subject only to the condition 
that each new vassal have the necessary qualifications and will pledge 
fealty to his lord, and the existing vassals will do so to a new lord; £) 
when the feudal administrative staff compels the lord to fill every 
vacancy (Leihezwang), since all fiefs arc considered part of the mainte- 
nance fund for the members of the knightly status group. 

The first step took place relatively early in the Middle Ages; the 
second, later on. The struggle of kings and princes' with their vassals 
were above all directed, though not usually explicitly, toward the 
elimination of this principle, since it prevented the rise of a patrimonial 
regime. 

B. If an administration is based completely on the granting of fiefs 
— and Lekensfeudalisnrus has never been hisioric3"y realised in the pure 
type any more than has pure patrimonialism — , this involves the follow- 
ing features : 

CO The authority of the lord is reduced to the likelihood that the 
vassals will remain faithful to their oaths of fealty. 

(2) The political association is completely replaced by a system of 
relations of purely personal loyalty between the lord and his vassals and 
between these in turn and their own sub- vassals C subinfeudation) and 
so on. Only a lord's own vassals are bound to fealty to him; whereas they 
in turn can claim the fealty of their own vassals, and so on. 

(3)' Only in the case of a "felony" does the lord have a right to 
deprive his vassal of his fief, and the same in turn applies to the vassal* 
in his relation to his own vassal. When such a case, however, arises, in 
enforcing his rights against a vassal who has broken the oath of fealty, 
the lord is dependent on the help of his other vassals or on the passivity 
of the sub-vassals of the guilty party. Either source of support can only 
be counted on when the relevant group recognizes that a felony has 
actually been committed. However, even then the overlord cannot count 
on the non-interference of sub vassals unless he has at least been able to 
secure recognition on their part of the principle that a struggle against 
an overlord is an exceptional state. Overlords have always attempted to 
establish this principle but not always with success. 

(4) There is a hierarchy of social rank corresponding to the hier- 
archy of fiefs through the process of sub-in feudation— the order of the 
Heerschilde in the Mirror of Saxon Law (Sachsenspiegei) . This is not, 
however, a judicious and administrative hierarchy. For whether an order 
or a decision can be challenged and to what authority appeal can be made 
is in principle a matter for the respective court of appeals (Oberhof*) 



vt ] ' Feudalism 2 5 7 

and does "hot depend on the hierarchy of feudal relationships. (It is 
theoretically possible for the Oberhof authority to be granted to a status- 
equal of the local judicial lord, but in practice this was not the case.) 

(5) The elements in the population who do not hold fiefs involving 
patrimonial or political authority are "subjects" (Hintersasseny, that is, 
they are patrimonial dependents. They are dependent on the holders of 
fiefs to the extent that their traditional status determines or permits it, 
or-so far as the coercive power in the hands of the possessors of military 
fiefs compels it, since they are to a large extent defenseless. Just as the 
supreme lord is under obligation to grant land in fief, those who do not 
hold fiefs are always under the authority of a lord; in both cases the rale 
is: nulle terre sans seigneur. The sole survival of the old immediate 
political powers of the ruler is the principle, which is almost always 
recognized, that political authority, particularly judicial authority, is 
turned over to the ruler whenever he is personally present. 

(6) Powers over the household (inluding domains, slaves and serfs), 
the fiscal rights of the political group to the receipt of taxes and contri- 
butions, and specifically political powers of jurisdiction and compulsion 
to military service— thus powers over free men — all become objects of 
feudal grants in the same way. However, as a rule the strictly political 
powers are subject to special regulation. 

In ancient China the granting of economic income in fiefs and of 
territorial authority were distinguished in name as well as in fact. The 
distinctions in name are not found in the European Middle Ages, but 
there were clear distinctions in the holder's status and in numerous 
other particular points. 

It is not usual for political powers to be fully appropriated in the 
same way as property rights in fiefs. Numerous transitional forms and 
irregularities remain. One conspicuous difference is the existence of a 
status distinction between those enjoying only economic or fiscal rights 
and those with strictly political powers, notably judicial and military 
authority. Only the latter arc -political vassals. 

It goes without saying that whenever Lehensfeudalistnus is highly 
developed, the overlord's authority is precarious. This is because it is 
very dependent on the voluntary obedience and hence the purely per- 
sonal loyalty of the members of the administrative staff, who, by virtue of 
the feudal structure, are themselves in possession of the means of ad- 
ministration. Hence, the latent struggle for authority becomes chronic 
between the lord and his vassal, and the ideal extent of feudal authority 
has never been effectively carried out in practice or remained effective on 
a permanent basis. 



258 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

Rather, the feudal lord may attempt to improve his position in one 
of the following ways: 

(a) He may not rely on the purely personal loyalty of his vassals, 
but may attempt to secure his position by limiting or forbidding sub- 
infeudation. 

This was common in Western Feudalism, but often was initiated by 
the administrative staff in the interest of their own power. The same 
was true of the alliance of princes in China in 630 B.C. 

He may attempt to establish the principle that the fealty of a sub- 
vassal to his immediate lord is void in case of war against the higher lord. 

Or, if possible, the attempt is made to obligate the sub-vassal to direct 
fealty to him, the liege lord. 

(b) The feudal chief may seek to implement his control of the ad- 
ministration of political powers in a variety of ways. He may grant all 
the subjects a right of appeal to him or his courts. He may station super- 
vising agents at the courts of his political vassals. He may attempt to 
enforce a right to collect taxes from the subjects of all his vassals. He 
may appoint certain officials of the. political vassals. Finally, he may at- 
tempt to enforce the principle that all political authority is forfeited to 
him in his personal presence or beyond that to any agent he designates 
and that he, as the supreme lord, is entitled to try any case in his own 
court at will. 

(c) It is possible for a supreme lord to attain and maintain his power 
against vassals, as well as against other types of holders of appropriated 
authority, only if he creates or re-creates an administrative staff under his 
personal control and organizes it in an appropriate manner. There are 
three main possibilities. 

(1) It may be a patrimonial staff. (This was to a large extent what 
happened in the European Middle Ages and in Japan in the Bakufu of 
the Shogun, who exercised a very effective control over the feudal 
Daimyos.') 

(2) It may be an extra-patrimonial staff recruited from a status group 
with literary education. 

The principal examples are clerical officials, whether Christian or 
Brahman; kayasths (Buddhist, Lamaist, or Mohammedan) ; w * or fu- 
manists, such as the Confucian scholars in China, On the peculiarities of 
such groups and their immense importance for cultural development, 
seech, IV [unfinished]. 

(3) Or it may be a group of technically trained officials, particularly 
legal and military specialists. 



vi ] Feudalism 2-5 9 

This was proposed in China in the eleventh century hy Wang An 
Shi, but by that time it was directed against the classical scholars and 
not the feudal magnates. In the Occident, such a bureaucracy was re- 
cruited for civil administration from university-trained men. In the 
Church the primary training was in the Canon Law, in the State, the 
Roman Law. In England, it was the Common Law, which had, how- 
ever, been rationalized under the influence of Roman modes of thought. 
In this development lie some origins of the modern Western state. The 
development of Western military organization took a somewhat different 
course The feudal organization was first replaced by capitalistic military 
entrepreneurs, the condottieri. These structures were in turn appropri- 
ated by the territorial princes with the development of a rational ad- 
ministration of royal finance from the seventeenth century on. In Eng- 
land and France, it happened somewhat earlier. 

This struggle of the feudal chief with his feudal administrative staff 
in the Western World, though not in Japan, largely coincided with his 
struggle against the power of corporately organized privileged groups 
(Stande-Korporationen^). In modern times it everywhere issued in the 
"ruler's victory, and that meant in bureaucratic administration. This hap- 
pened first in the Western World, then in Japan; in India, and perhaps 
also in China, it happened in the wake of foreign rule. Along with 
purely historical power constellations, economic conditions have played 
a very important part in this process in the Western World, Above all, 
it was influenced by the rise of the bourgeoisie in the towns, which had 
an organization peculiar to Europe, It was in addition aided by the com- 
petition for power by means of rational — that is, bureaucratic — adminis- 
tration among the different states. This led, from fiscal motives, to a 
crucially important alliance with capitalistic interests, as will be shown 
later. 



i2c. Prebendal Feudalism and Other Variants 

Not every kind of "feudalism" involves the fief in the Occidental 
sense. In addition, there is above all: 

A. prebendal feudalism, which has a fiscal basis. 

This was typical of the Islamic Near East and of India under the 
Moguls. On the other "hand, ancient Chinese feudalism before the time 
of Shi Huang Ti had at least in part a structure of fiefs, though 
benefices were also involved. Japanese feudalism also involved fiefs, 
but, they were subject in the case of the Dmmyps to a rather stringent 
control on the part of the supreme lord (Bflkufw), and the fiefs of the 
Samurai and the Buke were really benefice* of mimsteTiaUs (although 



2 6 o THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

they often came to be appropriated) which were registered according to 
their yield in terms of rice rent Qwkudaka), 

Prebendal feudalism exists when (i) benefices which are valued 
and granted according to the income they yield are appropriated and 
where (2) appropriation is, in principle, though not always effectively, 
carried out only on a personal basis in accordance with services, thus 
involving the possibility of promotion. (This was, at least from the legal 
point of view, true of the benefices held by the Turkish sipafo.) 

Finally and above all, (3) it does not involve primarily a free rela- 
tion of personal fealty arising from a contract of personal loyalty with 
the lord as the basis of a particular fief. It is rather 2 matter primarily 
of fiscal considerations in the context of a system of financing which is 
otherwise patrimonial, often sulranistic. This is for the most part made 
evident by the fact that the prebends are assessed according to their tax 
value. 

It is very common for the Lehensfeudalismus to originate in a system of 
want satisfaction of the political group on the basis of a purely natural 
economy and in terms of personal obligations (personal services and 
military services). The principal motive is to replace the insufficiently 
trained popular levy, whose members can no longer equip themselves 
and are needed in the economy, with a well-trained and equipped 
army of knights who are bound to their chief by personal honor- Pre- 
bendal feudalism, on the other hand, usually originates in the reversion 
from monetary financing to financing in kind. The following are the 
principal reasons leading to such a policy: — 

(a) The transfer of the risk involved in fluctuating income to an 
entrepreneur; that is, a sort of tax farming. 

a) Rights to such income may be transferred in return for under- 
takin|*to supply certain particular army contingents, such as cavalry, 
sometimes war chariots, armored troops, supply trains, or artillery, for a 
patrimonial army, (This was common in the Chinese Middle Ages. 
Quotas for the army in each of the different categories were established 
for a particular territorial area.) 

Either in addition to this or alone, prebendal feudalism may be estab- 
lished as a means of j8) meeting the costs of civil administration and of 
7) securing tax payments for the royal treasury. (This was common in 
India.) 

*) In return for these various services, in the first instance to enable 
those who undertook them to meet their obligations, an appropriation of 
governmental power in varying degrees and respects was permitted. Such 
appropriation has usually been for a limited period and subject to re- 



vt 



i ] Feudalism 2 6 1 



purchase. But when means to do this have been lacking, it has often in 
fact been definitive. Those who hold such definitively appropriated 
powers then become, at the very least, landlords, as opposed to mere land- 
owners, and often come into the possession of extensive political powers. 

This process has been typical above all of India. It is the source of 
the powers over land of the ZamindaTS, the Jagirdars, and the Tuluk- 
dars. It is also found in a large part of the Near East, as C. H. Becker 
has clearly shown — he was the first to understand the difference from 
the European fief. 11 The primary basis lies in the leasing of taxes. As 
a secondary consequence, it developed into a "manorial" system. The 
Rumanian Boyars — the descendants of the most heterogeneous society 
the world has ever seen, of Jews, Germans, Greeks, and various others 
— were also tax farmers who on this basis appropriated governing 
authority. 

(b) Inability to pay the contingents of a patrimonial army may lead 
to an usurpation of the sources of taxation on their part, which is subse- 
quendy legalized. The result is that appropriation of the land and of the 
subjects is carried out by the officers and members of the army. (This 
was true of the famous Khans of the empire of the Caliphs. It was the 
source or the model for all forms of Oriental appropriation, including the 
Mameluke army, which was formally composed of slaves,) * <#'. 

It is by no means inevitable that this should lead to systematic regis- 
tration as a basis for the granting of benefices. But this is a readily avail- 
able course and has often actually been followed out. (We shall not yet 
discuss how far the "fiefs" of the Turkish sipahi were genuine fiefs or 
whether they were closer to benefices. From a legal point of view, pro- 
motion according to achievement was possible.) 

It is clear that the two types of feudalism are connected by gradual 
imperceptible transitions and that it is seldom possible to classify cases 
with complete definiteness under one category 6r the other. Furthermore, 
prebendal feudalism is closely related to a purely prebendal organization, 
and there are also gradual transitions in this direction. 

According to an imprecise terminology, in addition to the fief resting 
on a free contract with the lord and the feudal benefice, there is: 

B. so-called "polis" feudalism, resting on a real or fictitious "synoik- 
ism" of landlords. These enjoy equal rights in the conduct of a purely ' 
military mode of life with high status honor. The economic aspect of 
the kleros is the plot of land which is appropriated by qualified persons 
on a personal basis and passed on by individual hereditary succession. It 
is cultivated by the services of unfree persons — assigned as the property 
of the status group— and forms the basis of provision of military 
equipmenr. 



262 THE TYPES OF LEGITIMATE DOMINATION [ Ck. Ill 

This type is found only in Greece, in fully developed form, only in 
Sparta, and originated out of the "men's house." It has been called 
"feudalism" because of the set of conventions regulating status honor 
and of the element of chivalry in the mode of life of a group of land- 
lords. This is hardly legitimate usage. In Rome the term fundus cor- 
responds to the Greek kleros. There is, however, no information avail- 
able about the organization of the curia (co-riria equals the Greek 
andreion, the "men's house). We do not know how far it was similar 
to the Greek.) 

The term "feudal" is often used in a very broad sense to designate 
all military strata, institutions and conventions which involve any sort 
of status privileges. This usage will be avoided here as entirely too vague". 

C. The second doubtful type is called feudalism for the opposite 
reason. The fief is present but, on the other hand, is not acquired by a 
free contract (fraternization either with a lord or with equals), but is 
bestowed by the order of a patrimonial chief. On the other hand, it may 
not be administered in the spirit of a knightly mode of life. Finally, both 
criteria may be absent. Thus there may be service fiefs held by dependent 
knights; or, conversely, fiefs may be freely acquired but their holders are 
not subject to a code of chivalry. Finally, fiefs may be granted to clients, 
coloni, or slaves who are employed as fighting forces. All these cases will 
be treated here as benefices. 

The case of dependent knights is illustrated by Occidental and 
Oriental -ministeriales, in Japan by the Samurai. Freely recruited soldiers 
without a chivalrous code are known to the Orient; this was probably 
the origin of the Ptolemaic military organization. When the hereditary 1 
appropriation of service land has led further to the appropriation of the 
military function as such, the end result is a typical liturgical organiza- 
tion of the state. The third type, the use of unfree military forces, is 
typical of the so-called warrior caste of ancient Egypt, of the Mame- 
lukes of medieval Egypt, and of various other unfree Oriental and 
Chinese warriors. These have not always been granted rights in land, 
but such an arrangement is common. 

In -uch cases, it is imprecise to speak of "feudalism," since it involves . 
military status groups, which, at least from a formal point of view, occupy 
a negatively privileged position. They will be discussed in Chapter IV. 



1 3 . Combinations of the Different Types of Authority 

The above discussion makes it quite evident that "ruling organiza- 
tions" which belong only to one or another of these pure types are very 
exceptional. Furthermore, in -relation to legal and traditional authority 



vi ] __ Veudalism 263 

especially, certain important types, such as the collegial form and some 
aspects of the feudal, have either not been discussed at *11 or have been 
barely suggested. In general, it should be kept clearly in mind that the 
basis of every authority, and correspondingly of every kind of willingness 
to obey, is a belief, a belief by virtue of which persons exercising author- 
ity are lent prestige. The composition of this belief is seldom altogether 
simple. In the case of "legal authority," it is never purely legal. The 
belief in legality comes to be established and habitual, and this means 
it is partly traditional. Violation of the tradition may be fatal to it. Fur- 
thermore, it has a charismatic element, at least in the negative sense that 
persistent and striking lack of success may be sufficient to ruin any gov- 
ernment, to undermine its prestige, and to prepare the way for charis- 
matic revolution. For monarchies, hence, it is dangerous to lose wars 
since that makes it appear that their charisma is no longer genuine. For 
republics, on the other hand, striking victories may be dangerous in that 
they put the victorious general in a favorable position for making char- 
■ ismatic claims. 

Groups approximating the purely traditional type have certainly 
existed. But they have never been stable indefinitely and, as is also true 
of bureaucratic authority, have seldom been without a head who had a 
personally charismatic status by heredity or office. Under certain circum- 
stances, the charismatic chief can be different from the traditional one. 
Everyday economic needs have' been met under the leadership of tradi- 
tional authorities; whereas certain exceptional ones, like hunting and the 
quest of "booty" in war, have had charismatic leadership. The idea of 
the possibility of "legislation" is also relatively ancient, though for the 
most part it has been legitimized by oracles. Above all, however, when- 
ever the recruitment of an administrative staff is drawn from extra- 
patrimonial sources, the result is a type of official which can be differ- 
entiated from those of legal bureaucracies only in terms of the ultimate 
basis of their authority and not in terms of formal status. 

Similarly, entirely pure charismatic authority, including the heredi- 
tary charismatic type, etc., is rare. It is not impossible, as in the case of 
Napoleon, for the strictest type of bureaucracy to issue directly from a 
charismatic movement; or, if not that, all sorts of prebendal and feudal 
types of organization. Hence, the kind of terminology and classification 
set forth above has in no sense the aim — indeed, it could not have it — to 
be exhaustive or to «onhne the whole of historical reality in a rigid 
scheme. Its usefulness is derived from the fact that in a given case it is 
possible to distinguish what aspects of a given organized group can 
legitimately be identified as falling under or approximating one or 



264 THE TYPES OF LEGITIMATE DOMINATION [ Ch. HI 

another of these categories. For certain purposes this is unquestionably 
an important advantage. 

For all types of authority the fact of the existence and continual func- 
tioning of an administrative staff is vital. For the habit of obedience 
cannot be rfta in rained without organized activity directed to the applica- 
tion and enforcement of the order. It is, indeed, the existence of such 
activity which is usually meant by the term "organization. "" For this to 
exist in rum, it is essential that there should be an adequate degree of 
the solidarity of interests, both on the ideal and material levels, of the 
members of the administrative staff with their chief. It is fundamental 
in understanding the relation of the chief to these members that, so far as 
this solidarity exists, the chief is stronger than any individual member 
but is weaker than the members taken together. It is, however, by all 
means necessary for the members of an administrative staff to enter into 
a deliberate agreement in order to obstruct or even consciously oppose 
their chief so successfully that the leadership of the chief becomes im- 
potent. Similarly, any individual who sets out to destroy a rulership 
must, if he is going to take over the position of power, build up an ad- 
ministrative staff of his own, unless he is in a position to count on the 
connivance and co-operation of the existing staff against their previous 
leader. 

Solidarity of interest with a chief is maximized at the poiht where 
both the legitimacy of the status of the members and the provision for 
their economic needs is dependent on the chief retaining his position. 
For any given individual, the possibility of escaping this solidarity varies 
greatly according to the structure. It is most difficult where there is com- 
plete separation from the means of administration, thus in purely tradi- 
tional patriarchal structures, undei pure partimonialism and in bureau- 
cratic organizations resting on formal rules. It is easiest where fiefs or 
benefices have been appropriated by socially privileged groups. 

It is most important, finally, to realize that historical reality involves 
a continuous, though for the most part latent, conflict beween chiefs and 
their administrative staffs for appropriation and expropriation in relation 
to one another. For almost all of cultural development, it has been crucial 
in what way this struggle has worked out and what has been the charac- 
ter of the stratum of officials dependent upon the chief which has helped 
him win out in his struggle against the feudal classes or other groups en- 
joying appropriated powers. In different cases it has been ritually trained 
literati, the clergy, purely secular clients, household officials, legally 
trained persons, technically specialized financial officials, or private 
honoratiores, (about whom more will be said later). 

One of the reasons why the character of these struggles and of their 



vi ] Feudalism 265 

outcome has been so important, not only to the history of administration 
t as such, but to that of culture generally, is tnat the type of education 
has been determined by them and with it the modes of status group 
formation. 

1. Both the extent and the way in which the members of an ad- 
ministrative staff are bound to their chief will vary greatly according to 
whether they receive salaries, opportunities for profit, allowances, or 
fiefs. It is, however, a factor common to all of these that anything which 
endangers the legitimacy of the chief who has granted and who guar- 
antees them, tends at the same time to endanger the legitimacy of these 
forms of income and the positions of power and prestige which go with 
membership in rhe administrative staff. This is one of the reasons why 
legitimacy, which is often so much neglected in analysing such phen- 
omena, plays a crucially important role. 

2. The history of the dissolution of the old system of domination 
legitimate in Germany up until 1918 is instructive in this connection. 
The War, on the one hand, went far to break down the authority of 
tradition; and the German defeat involved a tremendous loss of prestige 
for the government. These factors combined with systematic habituation 
to illegal behavior, undermined the amenability to discipline both in 
the army and in industry and thus prepared the way for the overthrow 
of the older authority. At the same time, the way in which the old ad- 
ministrative staff continued to function and the way in which its order 
was simpiv taken over by the new supreme authorities, is a striking 
example of the extent to which, under rationalized bureaucratic condi- 
tions, the individual member of such a staff is inescapably bound to his 
technical function. As it has been noted above, this fact is by no means 
adequately explained by the private economic interests of the members 
— their concern for their jobs, salaries, and pensions — although it goes 
without saying that these considerations were not unimportant to the great 
majority of officials. In addition to this, however, the disinterested ideo- 
logical factor has been crucial. For the breakdown of administrative or- 
ganization would, under such conditions, have meant a breakdown of 

the provision of the whole population, including, of course, the official? % 
themselves, with even the most elementary necessities of life. Hence an 
■ appeal was made to the sense of duty of officials, and this was success- 
ful. Indeed the objective necessity of this attitude has been recognized 
even by the previous holders of power and their sympathizers. 

3. In the course of the past revolution in Germany, a new adminis- 
trative staff came into being in the Soviets of workers and soldiers. In 
the first place it was necessary to develop a technique of organizing these 
new staffs. Furthermore, their development was closely dependent on 
the War, notably the possession of weapons by the revolutionary ele- 
ment. Without this factor the revolution would not have been possible 
at all. (This^and its historical analogies will be discussed below.) It was 
only by the rise of charismatic leaders against the legal authorities and 



266 THE TYPES OF LEGITIMATE DOMINATION [ Ck. HI 

by the development around them of groups of charismatic followers, that 
it waS possible to take power away from the old authorities. It was 
furthermore only through the maintenance of the old bureaucratic or- 
ganization that power once achieved could be retained. Previous to this 
situation every revolution which has been attempted under modem con- 
ditions has failed completely because of the indispensability of trained 
officials and of the lack of its own organized staff. The conditions under 
which previous revolutions have succeeded have been altogether differ- 
ent. (See below, the chapter on the theory of revolutions. [Unwritten].) 

4. The overthrow of authority on the initiative of the administrative 
staff has occurred in the past under a wide variety of conditions. Some 
form of association of the members of the staff has always been a 
necessary prerequisite. According to the circumstances, it might have - 
more the character of a limited conspiracy or more that of a general 
solidarity. This is peculiarly difficult under the conditions to which the 
modem official is subject; but as the Russian case has shown, it is not 
altogether impossible. As a general rule, however, such association does 
not go further than the kind which is open to workers through the ordi- 
nary procedure of the strike. 

5. The patrimonial character of a body of officials is above all mani- 
fested in the fact that admission involves a relation of personal depend- 
ency. In the Carolingian system, one became a fuer regis, under the 
Angevins, a familiaris. Survivals of this have persisted for a very long 
time. 



VII 

The Transformation of Charisma in a 
Democratic Direction 



14. Democratic Legitimacy, Plebiscitary Leadership and 
Elected Officialdom 1 * 

The basically authoritarian principle of charismatic legitimation may 
be subject to an anti-authoritarian interpretation, for the validity of 
charismatic authority rests entirely on recognition by the ruled, on 
"proof before their eyes. To be sure, this recognition of a charismatically 
qualified, and hence legitimate, person is treated as a duty. But when 
the charismatic organization undergoes progressive rationalization, it is 
readily possible that, instead of recognition being treated as a conse- 



vti ] The Transformation of Charisma 267 

quence of legitimacy, it is treated as the basis of legitimacy: democratic 
legitimacy. Then designation of a successor by an administrative staff 
becomes "preselection" by the predecessor himself "nomination," whereas 
recognition by the group becomes an "election." The personally legiti- 
mated charismatic leader becomes leader by the grace of those who follow 
him since the latter are formally free to elect and even to depose him — 
just as the loss of charisma and its efficacy had involved the loss of genu- 
ine legitimacy. Now he is the freely elected leader. 

Correspondingly, the recognition of charismatic decrees and judicial 
decisions on the part of the community shifts to the belief that the group 
has a right to enact, recognize, or appeal laws, according to its own 
free will, both in general and for an individual case. Under genuinely 
charismatic authority, on the other hand, conflicts over the correct law 
may actually be decided by a group vote, but this takes place under the 
pressure of feeling that there can be only one correct decision, and it is 
a matter of duty to arrive at this. However, in the new interpretation the 
treatment of law approaches the case of' legal authority. The most im- 
portant transitional type is the legitimation of authority by plebiscite: 
plebiscitary leadership. The most common examples are the modern 
party leaders. But it is always present in cases where the chief feels him- 
self to be acting on behalf of the masses and is indeed recognized by 
them. Both the Napoleons are classical examples, in spite of the fact that 
legitimation by plebiscite took place only after they seized power by 
force. The second Napoleon also resorted to the plebiscite after a severe 
loss of prestige. Regardless of how its real value as an expression of the 
popular will may be regarded, the plebiscite has been the specific means 
of deriving the legitimacy of authority from the confidence of the ruled, 
even though the voluntary nature of such confidence is only formal or 
fictitious. 

Once the elective principle has been applied to the chief by a re- 
interpretation of charisma, it may be extended to the administrative staff. 
Elective officials whose legitimacy is derived from the confidence of the 
ruled and who are therefore subject to recall, are typical of certain de- 
mocracies, for instance, the United States. They are not "bureaucratic" 
types. Because they have an independent source of legitimacy, they are 
not strongly integrated into a hierarchical order. To a large extent their 
"promotion" and assignment is not influenced by their superiors. (There 
are analogies in other cases' where several charismatic, structures, which 
are qualitatively heterogeneous, exist side by side, as in the relations of 
the Dalai Lama and the Tashi Lama.) Such an administrative structure 
is greatly inferior as a precision instrument compared to the bureaucratic 
type with its appointed officials. 



2 6 8 THE TYPES OF LEGITIMATE DOMINATION [ Ch. HI 

i. Plebiscitary democracy — the most important type of Fiihrer- 
Denyjikratie — is a variant of charismatic authority, which hides behind a 
legitimacy that is formally derived from the will of the governed. The 
leader (demagogue) rules by virtue of the devotion and trust which his 
political followers have in him personally. In the first instance his power 
extends only over those recruited to his following, but if they can hand 
over the government to him he controls the whole polity. The type is 
best illustrated by the dictators who emerged in the revolutions of the 
ancient world and of modern times: the Hellenic aisymnetai, tyrants 
and demagogues; in Rome Gracchus and his successors; in the Italian 
City states the capitani del p&polo and mayors; and certain types of 
political leaders in the German cities such as emerged in the democratic 
dictatorship of Zurich. In modern states the best examples are the die- - 
tatorship of Cromwell, and the leaders of the French Revolution and of 
the First and Second Empire. Wherever attempts have been made to 
legitimize this kind of exercise of power, legitimacy has been sought in 
recognition by the sovereign people through a plebiscite. The leader's 
personal administrative staff is recruited in a charismatic form usually 
from able people of humble origin. In Cromwell's case, religious quali- 
fications were taken into account. In that of Robespierre along with per- 
sonal dependability also certain "ethical" qualities. Napoleon was con- 
cerned only with personal ability and adaptability to the needs of his 
imperial "rule of genius." 

At the height of revolutionary dictatorship the position of a member 
of the administrative staff tends to be that of a person entrusted ad hoc 
with a specific task, subject to reca!?. This was true of the role of the 
agents of the "Committee of Public Safety." When a certain kind of 
municipal "dictators" have been swept into power by the reform move- 
ments in American cities the tendency has been to grant them freedom , 
to appoint their own staff. Thus both traditional legitimacy and formal 
legality tend to be equally ignored by the revolutionary dictator. The 
tendency of patriarchal authorities, in the administration of justice and 
in their other functions, has been to act in accordance with substantive 
ideas of justice, with utilitarian considerations and in terns of reaso.is of 
state. These tendencies are paralleled by the revolutionary tribunals and 
by the substantive postulates ;.f justice of the radical democracy of 
Antiquity and of modern socialism (of which more will be said in the 
Soc. of Law, ch. VIII: viQ. The process of routinization of revolution- 
ary charisma then brings with it changes similar to those brought about 
by the corresponding process in other respects. Thus the development 
of a professional army in England goes back to the voluntary arm.}' of 
the faithful in the days of Cromwell. Similarly, the French system of 
administration by prefects is derived from the charismatic administration 
of the revolutionary democratic dictatorship. 

2. The introduction of eSecrcd officials always involves a radical 
alteration in the position of the charismatic leader. He becomes the 
"servant" of those under bis authority. There is no place for such a type 
in a technically rational bureaucratic organization. Since he is not ap- 



vii j - The Transformation of Charisma t, 6 9 

pointed and pi-jmcmd by his superiors and his position is derived from 
the votes of the idled, he is likely to he little interested in the prompt 
and strict observance of discipline whkh would be likely to win the 
favor of superiors. The tendency is rather for electoral positions to be- 
come autocephalous spheres of authority. It is in general not possible to 
attain a high level of technical administrative efficiency widi an elected 
staff of officials. (This is illustrated by a comparison of the elected offi- 
cials in the individual states in the United States with the appointed 
officials of the Federal Government. It is similarly shown by comparing 
the elected municipal officials with the administration of the reform 
mayors with their own appointed staffs.) It is necessary to distinguish 
the type of plebiscitary democracy from that which attempts to dispense 
with leadership altogether. The latter type is characterized by the at- 
tempt to minimize the domination of man over man. 

Il is characteristic of the Ftihrerdemokratie that there should in gen- 
eral be a highly emotional type of devotion to and trust in the leader. 
This accounts for a tendency to favor the type of individual who is most 
spectacular, who promises the most, or who employs the most effective 
propaganda measures in the competition for leadership. This is a natural 
basis for the Utopian component which is found in all revolutions. It also 
dictates the limitations on the level of rationality which, in the modern 
world, this type of administration can attain. Even in America it has not 
always come up to expectations. 

Relationship to the economy; 1. The anti-authoritarian direction of 
the transformation of charisma normally leads into the path of rationality. 
If a ruler is dependent on recognition by plebiscite he will usually at- 
tempt to support his regime by an organization of officials which func- 
tions promptlv and efficiently. He will attempt to consolidate the loyalty 
of those he governs either by winning glory and honor in war or by pro- 
moting their material welfare, or under certain circumstances, by attempt- 
ing to combine both. Success in these will be regarded as proof of the 
charisma His first aim will be the destruction of traditional, feudal, 
patrimonial, and other types of authoritarian powers and privileges. His 
second aim will have to be to create economic interests which are bound 
up with his regime as the source of their legitimacy. So far as, in pursu- 
ing these policies, he makes use of the formalization and legalization of 
law he may contribute greatly to the formal rationalization of economic 
activity. 

2. On the other hand, plebiscitary regimes can easily act so as to 
weaken the formal rationality of economic activity so far as their interests 
in legitimacy, being dependent on the faith and devotion of the masses, 
forces them to impose substantive ideas of justice in the economic sphere. 
This will result in an administration of justice emancipated from formal 
procedures, as it happens under revolutionary tribunals, war-time ration- 



2 7° THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

ing and in other cases of limited and controlled production and consump- 
tion. This tendency, which is by no means confined to the modern social- 
ist type, will be dominant insofar as the leader is a "social dictator." The 
causes and consequences of this type cannot yet be discussed. 

3. The presence of elective officials is a source of disturbance to for- 
mally rational economic life. This is true in the first place because such 
officials are primarily elected according to party affiliations and not tech- 
nical competence. Secondly, the risks of recall or failure of re-election 
make it impossible to pursue a strictly objective course of decision and 
administration, without regard to such consequences. There is, however, 
one case where the unfavorable effects for the rationality of economic 
activity are not evident. This is true where there is a possibility of apply- 
ing the economic and technical achievements of an old culture to new 
areas. In this case, the means of production are not yet appropriated and 
there is a sufficiently wide margin so that the almost inevitable corrup- 
tion of officials can be taken account of as one of the cost factors, and 
large-scale profits still be attained [as in the United States]. 

On 1. The classical example of a favorable effect on economic ra- 
tionality is to be found in the two Napoleonic regimes. Napoleon I 
introduced the Code Napol4on r compulsory division of estates by inheri- 
tance and everywhere destroyed the traditional authorities. It is true that 
his regime created what almost amounted to fiefs for his deserving fol- 
lowers, and that the soldiers got almost everything, the citizen nothing. 
But this was compensated for by la gloire and, on the whole, the small 
bourgeois were tolerably well off. Under Napoleon HI there was con- 
tinued adherence to the motto of the era of Louis Philippe: "enrichissez- 
vous"; grand-scale building; the Credit Mobiller, with its well-known 
scandal. 

On 2. The tendencies of "social dictatorship" are classically illustrated 
by the Greek democracy of the Periclean age and its aftermath. In Rome 
the jurors who tried a case were bound by the instructions of the fraetor, 
and decisions followed the formal law. But in the Greek heliaia-court 
decisions were made in terms of "substantive" justice — in effect, on the 
basis of sentimentality, flattery, demagogic invectives and jokes. This can 
be clearly seen in the court orations of the Athenian rhetors. Analogous 
phenomena are found in Rome only in the case of political trials, such 
as Cicero participated in. The consequence was that the development of 
formal law and formal jurisprudence in the Roman sense became im- 
possible. For the heliaia was a "people's court" directly comparable to 
the revolutionary tribunals of the French Revolution and of the Soviet 
phase of the revolution in Germany. The jurisdiction of these lay tri- 
bunals was by no means confined to politically relevant cases. On the 
other hand, no revolutionary movement in England has ever interfered 
with the administration of justice except in cases of major political sig- 






vii } The Transformation of Charisma 2 7 1 

nificance. However, it is true that there was a considerable arbitrary 
element in the decisions of the justices of the peace, but only insofar as 
they concerned pure "police" cases not involving interests of the prop- 
ertied. 

On 3. The United States of America is the classical example. As late 
as the early 1 poo's the author inquired of American workers of English 
origin why they allowed themselves to be governed by party henchmen 
who were so of ten open to corruption. The answer was, in^the first place, 
that in such a big country even though millions of dollars were stolen or 
embezzled there was still plenty left for everybody, and secondly that 
these professional politicians were a group which even workers could 
treat with contempt whereas technical officials of the German type would 
as a group "lord it over" the workers. 

A specialized discussion of relations of economic activity will have 
to be left for the more detailed treatment below [Part Two]. 



Vlll 

* 

Collegiality and the Division of Powers 

1 5 . Types of Collegiality and of the Division of Powers 

On either a traditional or a rational basis authority may be limited 
and controlled by certain specific means. 

The present concern is not with the limitations of authority as such, 
whether it is determined by tradition or by law. This has already been 
discussed (sees. 3rf\), Just now it is rather a question of specific social 
relationships and groups which have the function of limiting authority. 

1. Patrimonial and feudal regimes generally have their authority 
limited by the privileges of status groups. This type of limitation is most 
highly developed when there is an estate-type division of powers. This 
situation has already been discussed (sec. o,:IV). 

2. A bureaucratic organization may be limited and indeed must be 
by agencies which act on their own authority alongside the bureaucratic 
hierarchy. This limitation is inherent in the fully developed legality type 
so that administrative action can be restricted to what is in conformity 
with rules. Such limiting agencies have the following principal functions: 

(a) supervision of adherence to the rules, if need be, through an 
inquiry; 

(b) a monopoly of creation of the rules which govern the action of 



2. 7 2 THE TYPES OF LEGITIMATE DOMINATION | Ch. Ill 

officials completely, or at least of those which define the limits of their 
independent authority; 

(c) above all a monopoly of the granting of the means which are 
necessary for the administrative function. These modes of limitation will 
be discussed separately below (sec. 16). 

3. It is possible for any type of authority to be deprived of its mono- 
cratic character by the principle of collegiality. This may, however, occur 
in a variety of ways with widely varying significance. The following are 
the principal types: 

(a) It may be that alongside the monocratic holders of governing 
powers there are other monocratic authorities which, by tradition or 
legislation, are in a position to delay or to veto acts of the iEjst authority. 
■This is the cqse of "veto collegiality" (Kassationskollegialitdi). 

The most important examples in Antiquity are the f Roman] tribune 
and, in its origins, the [Spartan] ephor, in the Middle Ages the cafitano 
del popolo, and, in the period after November 9, 1918 until the regular 
administration was again emancipated from this control, the [German 
revolutionary] "Councils of Workers and Soldiers" whose delegates (Ver- 
trauensntiinner') were entitled to "countersign" official acts. 

(b) The second type is precisely the opposite of this, namely the 
arrangement that the acts of an authority which is not monocratic must 
be carried out only after previous consultation and a vote. That is, their 
acts are subject to the rule that a plurality of individuals must co-operate 
for the act to be valid: the case of "functional collegiality." This coopera- 
tion may follow (a) the principle of unanimity or (£) of decision by 
majority. 

(c) In effect closely related to case (a) is that in which, in order to 
weaken monocratic power, a plurality of monocratic officials exists, each 
of whom has equal authority, without specification of function. If a con- 
flict arises over the same function, there must be a resort either to 
mechanical means such as lots, rotation, or oracles, or some controlling 
agency (2a) must intervene. In effect the tendency is for each member 
of the collegial body to have a power of veto over the others. (The most 
important example is the collegiality of the Roman magistrates, such as 
the consuls and the praetors.) 

(d) A type which is closely related to case (b) is that in which, 
although there is an actually monocratic primus inter pares, his acts are 
normally subject to consultation with formally equal members, and dis- 
agreement in important matters may lead to breaking up of the collegia] 
body by resignation, thus endangering the position of the monocratic 
chief. This may be called "functional collegiality with a preeminent 
head." 



viii ] Collegiality and the Division of Powers 273 

The most important example is that of the position of the British 
Prime Minister in relation to his cabinet. This organization has, as is 
well known, changed greatly in the course of its history. The above 
formulation, however, is substantially correct for most cases in the period 
of cabinet government. 

Advisory collegia I bodies do not necessarily involve a weakening of 
the power of an autocratic chief but may well lead to a tempering of the 
exercises of authority in the direction of rationalisation. It is, however, 
also possible that in effect they should gain the upper hand over the 
chief. This is particularly true if they are representative of well-estab- 
lished status groups. The following are the more important types: 

(e) The case noted above under <^d) is closely related to that in 
which a body whose functions are formally only advisory is attached to 
a mcnocratic chief. Even though he is not formally bound to follow their 
advice but only to listen to it, the failure of his policies if this occurs may 
be attributed to neglect of this advice. 

The most important case is that of the Roman Senate as a body ad- 
visory to the magistrates. From this there developed an actual dominance 
over the magistrates, chiefly through the Senate's control of finance. The 
Senate was probably actually only an advisory body in the early days, 
but through the actual control of finance and still more through the fact 
that senators and the formally elected magistrates belonged to the same 
status group, a situation developed in which the magistrates were in fact 
bound by the resolutions of the Senate, The formula "Si eh -placeret," 
in which the traditional lack of formal obligation was expressed, came 
to mean something analogous to "if you please" accompanied by some- 
thing like a command. 

CO A somewhat different type is found in the case where a collegia] 
body is made up of individuals with specified functions. In such a case 
the preparation and presentation of a subject is assigned to the individual 
technical expert who is competent in that field or possibly to several 
experts, each in a different aspect of the field. Decisions, however, arc 
taken by a vote of the body as a whole. 

Most councils of state and similar bodies in the past have more or 
less closely approximated to this type. This was true of the English Privy 
Council in the period before the development of cabinet government. 
Though at times their power has been very great, they have never suc- 
ceeded in expropriating monarchs. On the contrary, under certain cir- 
cumstances the monarch has attempted to secure support m his council 
of state in order to free himself from the control of cabinets, which were 
made up of party leaders. This attempt wks made in England, but with- 
out success. This type is also an approximately correct description of the 
ministries or cabinets made up of specialized officials which hereditary 



2 7 4 THJE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

monarchs or elective presidents of the American type have appointed 
for their own support. 

(g) A collegia] body, the members of which have specified func- 
tions, may be a purely advisory body. In this case — as in (e) — it is open 
to the chief to accept or reject their recommendations, according to his 
own free decision. 

The only difference is the extreme specialization of functions. This 
case was approached by the Prussian organization under Frederick Wil- 
liam I [ 1713-40] and is always favorable to consolidating the power of the 
chief. 

(h) The direct antithesis of rationally specialized collegiality is a 
traditional collegial body consisting of "elders." Their collegial function 
is primarily to guarantee that the law which is applied is really authenti- 
cally traditional. Sometimes such bodies have a veto power a$ a means of 
upholding the genuine tradition against untraditional legislation. (Ex- 
amples: gerousia [council of elders] in many cases in Antiquity; for veto 
power, the Areopagus in Athens and the patres in Rome, the latter, how- 
ever, belong primarily in type (1) below.) 

(i) One way of weakening domination is by applying the collegial 
principle to the highest authority whether its supremacy be formal or 
substantive. Several variations of this type are found, resembling the 
types d) through g). The powers of individual members of such bodies 
may be assumed in rotation or may be distributed on a permanent basis. 
Such bodies are collegial so long as there is a formal requirement that 
legitimate acts require the participation of all the members. 

One of the most important examples is the Swiss Federal Council, 
the members of which do not have clearly defined specialized functions, 
while to some extent the principle of rotation is involved. Another ex- 
ample is found in the revolutionary councils of "People's Commissars" 
in Russia, Hungary, and for a short time in Germany. In the past such 
bodies as the "Council of Eleven" in Venice and the colleges of "An- 
cients" [in other Italian city states] belong in this category, 

A great many cases of collegiality in patrimonial or feudal organiza- 
tions belong in one or another of the following categories: 

1) The estate-type division of powers ("estate collegiality")- 

z) The collegial organization of patrimonial officials which the chief 
has organized in order to counterbalance the power of organized privi- 
leged groups. This is often the position of the councils of state discussed 
above under (f). 

3) Advisory bodies or sometimes bodies with executive authority over 
which the chief presides or the meetings of which he attends or from 



viii ] „ Collegiality and the Division of Ponders 2 7 5 

which at least he receives reports. Such bodies are generally made up 
either of technical experts or of persons of high social prestige or both. 
In view of the increasingly specialized considerations involved in the func- 
tions of government he may hope, through the advice of such bodies, to 
attain a level of information sufficiently above pure dilettantism so that 
an intelligent personal decision is possible (case g) above). 

In cases of the third type the chief is naturally interested in having 
heterogeneous and even opposed elements represented, whether this het- 
erogeneity is one of technical opinions or of interest. This is because, on 
the one hand, he is concerned with the widest possible range of informa- 
tion, and on the other with being in a position to play the opposing 
interests off against each other. 

In the second type, on the contrary, the chief is often, though not 
always, concerned with uniformity of opinions and attitudes. This is a 
main source of the "solidary" ministries and cabinets in so-called Con- 
stitutional states or others with an effective separation of powers. In the 
first case the collegial body which represents the appropriated interests 
will naturally lay stress on uniformity of opinion and solidarity. It is 
not, however, always possible to attain this, sjnce every kind of appropria- 
tion through social privilege creates conflicting interests. 

The first of these types is illustrated by the assemblies of estates 
and the assemblies of vassals which preceded them frequently not only 
in Europe but elsewhere — for instance in China. The second type is 
well illustrated by the administrative, mostly collegial organs which were 
formed in the early stages of the modern monarchies and which were 
primarily composed of legal and financial experts. The third type is 
illustrated by the councils of state of the same monarchies and is also 
found in other parts of the world. As late as the eighteenth century it 
was not unknown for an archbishop to have a seat in the English cab- 
inet. Typically, these bodies have been composed of dignitaries such as 
Rate von Hans aus, T * and typically have had a mixture of honoratiores 
- and specialized officials. 

(k) Where there is a conflict of interests of status groups it may 
work out to the advantage of a chief through negotiation and struggle 
with the various groups. For organizations which are composed of dele- 
gated representatives of conflicting interests, whether their basis be in 
ideal causes, in power, or in economic advantage, may at least in external 
form be collegial bodies. What goes on within the body is then sup- 
posedly a process of adjustment of these conflicts of interest by compro- 
mise. (This is the case of "compromise-oriented collegiality," in contrast 
to office and parliamentary collegiality.) 

This type is present in a crude form wherever there is an estate-type 



276 THE TYPES OF LEGITIMATE DOMINATION [ Ck. 211 

division of powers in such a way that decisions can only be arrived at by 
a compromise between the privileged groups. A more highly rationalized 
form is built up when the delegated members of the collegial bodies are 
selected in terms of their permanent status or class position, or in terms 
of the specific interests they represent. In such a body, unless its charac- 
ter is radically changed, action cannot result from a "vote" in the ordi- 
nary sense but is the outcome of a compromise which is either negotiated 
among the interests themselves or is imposed by the chief after the case 
for each of the groups involved has been considered. 

The peculiar structure of the Stiindestaat will be discussed more in 
detail below (ch. XIII). The above formulation applies to such situa- - 
tions as arose through the separation of the bodies representing different 
social groups. Thus in England the House of Lords was separated from 
the House of Commons, v»hi!e the Church did not participate in Parli- 
ament at all but had its separate "Convocations." In France, the division 
came to be that of the nobility, the clergy, and the tiers itat, while in 
Germany there were various more complex divisions. These divisions 
made it necessary to arrive at decisions by a process of compromise, first 
within one estate and then between estates. The decisions were then 
generally submitted to the king as recommendations which he was not 
necessarily bound to follow. Today the theory of representation by occu- 
pational groups is very much in vogue. The advocates of this proposal 
for the most part fail to see that even under these conditions compro- 
mises rather than majority decisions would be the only feasible means 
(see sec. 22 below), .Insofar as free workers' councils were the bodies 
concerned, the tendency would be for questions to be settled in terms of 
the relative economic power of different groups, and not by majority > 

VOL-1*. 

(1) A related case is "voting collegiality," where collegial bodies 
which decide things by vote have been formed out of previously auto- 
cephalous and autonomous groups and a (variously gradated) right to a 
voice in decision-making has been appropriated by the leaders or the dele- 
gates of the component groups (' merger collegiality"). 

Examples are found in the representation of the phylae, the phiatries, 
and the clans in the governing bodies of ancient city-states, in the medi- 
eval clans in the time of the convAes, in tiie ntercadanza of the guilds, in 
the delegates of the craft:- (J:x.hTate) to the executive council of a 
federation of trade unionr., h: the federal council or senate in federal 
states, and finally in the dismbuiion of appointments to cabinet posts in 
coalition ministries. This hit. rase is particularly clear in the case of 
Switzerland, where posts ar? distributed in proportion to the number of 
votes for each party. 

(m) A rather special r.*se is the "voting collegiality" of elected 
parliamentary bodies which h h^ce in need of separate treatment. Its 



viii ] Collegiality and the Division of Powers 2 7 7 

composiriomests on one of two bases. It is either based on leadership, 
in which case the particular members constitute the following of leaders, 
or it is composed of collegial party groups without subordination to a 
specific leader Quhrerloser Parlamentarismus). To understand this it is 
necessary to discuss the structure of parties (see sec. 18 below). 

Except in the. case of the monocratic type of "veto collegiality," col- 
legiality almost inevitably involves obstacles to precise, clear, and above 
all, rapid decision. In certain irrational forms it also places obstacles in 
the way of technical experts, but in introducing specialized officials 
monarchs have often found this consequence not altogether unwelcome. 
With the progressive increase in the necessity for rapid decision and 
action, however, the importance of this type of collegiality has declined. 

Generally speaking, where collegial bodies have had executive au- 
thority the tendency has been for the position of the leading member to 
become substantively and even formally pre-eminent. This is true of the 
positions of the Bishop and the Pope in the church and of the Prime 
Minister in cabinets. Any interest in reviving the principle of collegiality 
in 4 actual executive functions is usually derived from the interest in 
weakening the power of persons in authority. This, in turn, is derived 
from mistrust and jealousy of monocratic leadership, not so much on 
the part of those subject to authority, who are more likely to demand a 
"leader," as on the part of the members of the administrative staff. This is 
not only or even primarily true of negatively privileged groups but is, 
on the contrary, typical of those enjoying positive privileges. Collegiality 
is in no sense specifically "democratic." Where privileged groups have had 
to protect their privileges against those who were excluded from them 
they have always attempted to prevent the rise of monocratic power. In- 
deed, they have had to do so because such 3 power could base itself on 
the support of the underprivileged. Thus, while on the one hand they 
have tended to enforce strict equality within the privileged group they 
have tended to set up and maintain collegial bodies to supervise or even 
to take over power. 

Examples are Sparta, Venice, the Roman Senate before the time of 
the Gracchi and in Sulla's days, England reueatedly in the eighteenth 
century, Berne and other Swiss cantons, the medieval patrician towns 
with their collegial consuls, and the mercaoanza which comprised the 
merchant guilds, but not those of the craft workers. The latter very 
easily became the prey of nobili and signori. 

Collegiality favors greater thoroughness in the weighing of admin- 
istrative decisions. Apart from the considerations already discussed, where 
this is more important than precision and rapidity, collegiality tends to 
be resorted to even to-day. Furthermore, it divides personal responsibility, 



2 78 THE TYPES OF LEGITIMATE DOMINATION [ Ck. Ill 

indeed in the larger bodies this disappears almost entirely, whereas in 
monocratic organizations it is perfectly clear without question where 
responsibility lies. Large-scale tasks which require quick and consistent 
solutions tend in general, for good technical reasons, to fall into the hands 
of monocratic "dictators," in whom all responsibility is concentrated. 

f 

It is impossible for either the internal or the foreign policy of great 
states to be strongly and consistently carried out on 3 collegial basis. The 
dictatorship of the proletariat for the purpose of carrying out the national- 
ization of industry requires an individual "dictator" with the confidence 06 
the masses. The "masses" as such are not necessarily adverse to this but 
the people holding power in Parliaments, parties, or, what makes very 
little difference, in "Soviets," cannot put up with such a dictator. This 
type has emerged only in Russia through the help of military force and 
supported by the interests of the peasants in the solidary maintenance 
of their newly acquired control of the land. 

Finally, a few remarks may be made which partly summarize and 
partly supplement what has already been said. From a historical point 
of view, collegia lity has had_ two principal kinds of significance: ; 

a) It has involved a plurality of incumbents of the same office, or a 
number of persons in offices whose spheres of authority were direcdy 
competing, each with a mutual power of veto. This is primarily a matter 
of a technical separation of powers in order to minimize authority. The 
most conspicuous instance of this type of collegiality is that of the Roman 
magistrates. Their most important significance lay in the fact that every 
official act was subject to intercession by a magistrate with equal authority, 
thus greatly limiting the power of any one magistrate. But the magistracy 
remained an individual office merely multiplied in several copies. 

b) The second main type has been that involving collegial decision., 
In such cases an administrative act is only legitimate when it has been 
produced by the cooperation of a plurality of people according to the 
principle of unanimity or of majority. This is the type of collegiality 
which is dominant in modern times, though it was also known in An- 
tiquity. It may involve collegiality 1) of governmental leadership, 2) of 
administrative agencies, 3) of advisory bodies. 

1) Collegiality in the supreme authority may be derived from the 
following considerations: — 

(a) Its basis may lie in the fact that the governing authority (Herr- 
schaftsverband') has arisen from the Vergemeinschaftung or Vergesell- 
schaftung of previously autocephalous groups and that each of these de- 
mands its share of power. This was true of the "synoikism" of the ancient 
city states with their councils organized on the basis of clans, phratries, 
and phylae. It was true of the medieval towns with a council representing 
the important noble families, and of the medieval guild federations, in the 
Mercadanza with the council of the "Ancients" or guild deputies. It is also 
found in the bodies representing the component states in modern federal 



viii ] Collegiality and the Division of Powers 2 7 9 

states and in the collegial structure of the ministries which have been 
built up by party coalitions (see again the increasing importance of pro- 
portional division in Switzerland). Collegiality in this case is a particular 
case of the representation of status or territorial groups. 

(b) It may, secondly, be based on the absence of a leader. This may 
in turn result from mutual jealousy among those competing for leader- 
ship or from the attempt of the subjects to minimize the authority of 
any individual. It has appeared in most revolutions from a combination 
of these factors, in such forms as a council of officers or even soldiers of 
revolutionary troops or the Committee of Public Safety or the Councils 
of People's Commissars. In times of peace it has been mostly this last 
motive, antipathy to the individual "strong man," which has underlain 
the establishment of collegial bodies. Examples are Switzerland and the 
new constitution of Baden in 1919. (In the last case it was the socialists 
who most strongly manifested this antipathy; for fear of an "elected 
monarch" they sacrificed the strict administrative unificatiorjrMMeh was 
an absolutely essential condition of successful nationalization . vJ^fcie most 
decisive influence in this was the attitude of party officials in trade un- 
ions, local communities, and party headquarters, all of whom were sus- 
picious of the powers of leadership.) 

(c) The third basis may lie in the independent social position of the 
status groups primarily available for positions of power and monopolizing 
these positions. In this case collegiality is the product of an aristocratic 
regime. Every socially privileged class fears the type of leader who seeks 
support in the emotional devotion of the masses just as much as the type 
of democracy without leaders fears the rise of "demagogues." The sen- 
atorial regime in Rome, various attempts to rule through closed councils, 
and the Venetian and similar constitutions all belong in this category. 

(d) The fourth basis may he in the attempt of monarchs to counter- 
act increasing expropriation at the hands of a technically trained bu- 
reaucracy. In the modern Western state, modern administrative organi- 
zation was first introduced at the top with the establishment of collegial 
bodies. This was similar to what happened to the patrimonial states of 
the Orient, in China, Persia, the empire of the Caliphs, and in the 
Ottoman Empire, all of which served as models for Europe. A monarch 
is not only afraid of the power of particular individuals but hopes above 
all to be in a position, in the votes and counter-votes of a collegial body, 
to hold the balance himself. Furthermore, since he tends to become more 
and more of a dilettante he can also hope in this way to have a better 
comprehension of the details of administration than if he abdicated in 
favor of individual officials. (Generally speaking the functions of the 
highest bodies have been a mixture of advisory and executive elements. 
It is only in the field of finance, where arbitrariness has particularly 
irrational consequences, that, as in the case of the [1495-97] reform of 
Emperor Maximilian, the power of the monarch was immediately clipped 
by the professional officialdom. In this case there were powerful factors 
forcing the monarch to give way.) 



2 8 O THE TYPES OF LEGITIMATE IX>MINAT10N [ Ck. Ill 

(e) Another basis lies in the need to reconcile the points of view of 
different technical specialists and divergent interests, whether material or 
persona], by collegial discussion, that is, to make compromise possible. 
This has been particularly true in the organization of municipal affairs, 
which have on the one hand involved highly technical problems which 
could be appraised in local terms, and on the other hand have tended 
to rest heavily on the compromise of material interests. This has been 
true at least so long as the masses have put up with control by the strata 
privileged through property and education. T'he collegiality of ministries 
rests, from a technical point of view, on a similar basis. In Russia and to 
a less extent in Imperial Germany, however, it has nof been possible to 
attain effective solidarity between the different parts of the government. 
Theresult has been bitter conflict between the different agencies. 

The basis in cases (a), (c), and (d) is purely historical. Bureaucratic 
authority -in the modem world has, wherever it has developed in large- 
scale associations such as states or metropolitan cities, led to ?. weakening 
of the role of collegiality in effective control Col]egi;ili*.y unavoidably 
obstructs the promptness of decision, the coridsrency of policy, the cie^r 
responsibility of the individual, and ruthlessness '0 c.utsidfts in combina- 
tion with the maintenance of discipline within the group Hence for thess 
and certain other economic and technical reasons in aii large states 
' which are involved in world politics, where collegiality has beer, re- 
tained at all, it has been weakened in favor of the prominent position of 
the political leader, such as the Prime Minister. Incidental^ a similar 
process has taken place in almost all of the large patrimonial organiza- 
tions, particularly those which have been strictJy Sultanistic. There has 
again and again been the need for a leading personality such as the 
Grand Vizier in addition to the monarch, unless a regime of favorites 
has provided a substitute. One person must carry the responsibility, but 
from a legal point of view the monarch himself could not do this. 

2) Collegiality as employed in agencies acting under the direction 
of higher authorities has been primarily intended to promote objectivity 
and integrity and to this end to limit the power of individuals. As in 
respect to the highest authority it has almost everywhere, for the same . 
reasons, given way to the technical supeiiority of monocrotic organiza- 
tions, This process is illustrated by the fate of the Regierungen [provincial 
"governments"] in Prussia, 

3) In purely advisory bodies, collegiality has existed at all times and 
vrill probably always continue to exist. It has played a very important 
part historically. This has been particularly true in cases where the power 
structure was such that "advice" submitted to a magistrate or a monarch 
was for practical purposes binding. In the present discussion it is not 
hecessary to carry the analysis further. 

The type of collegiality under discussion here is always collegiality 
in the exercise of authority. It is thus a matter of bodies which either 
are administrative or which directly influence administrative agencies 
(through advice). The behavior of assemblies representing status groups 



viii ] __ Collegiality and the Division of Powers z 8 i 

and of parliamentary bodies will be taken up later. [See below, sec. x of 
this chapter.] 

From a historical point of view it is in terms of collegiality that the 
concept of an "administrative agency" first came to be fully developed. 
This is because collegiality has always been linked with a separation of 
the sphere of office of the members from their private affairs, of public 
and private staff, and finally of the means of administration from per* 
sonal property. It is thus by no means fortuitous that the history of 
modern administration in the Western World begins v ith the develop- 
ment of collegia! bodies composed of technical specialists. Collegia! ad- 
ministration has also been the beginning of every permanent organization 
of patrimonial, feudal, or other types of traditional political structures 
though in a different way. Only collegial bodies of officials, which were 
capable of standing together, could gradually expropriate the Occidental 
monarch, who had become a "dilettante." If officials had been merely 
individual appointees, the obligation of personal obedience would have 
'made it far more difficult to maintain consistent opposition to irrational 
decisions of the monarch. When it became evident that a transition to 
the rule of technical bureaucracy was inevitable, the monarch regularly 
attempted to extend the system of advisory collegial bodies in the form of 
councils of state, in order to remain the master in spite of his lack of 
technical competence by playing off the internal dissensions of these 
bodies against each other. It was only after rational technical bureaucracy 
had come to be finally and irrevocably supreme that a need has been 
felt, particularly in relation to parliaments, for solidarity of the highest 
collegial bodies under monocratic direction through a prime minister. 
These bodies were intended to cover the ruler, who in turn protected 
them. With the latest development the general tendency of monocracy, 
and hence bureaucracy, in the organization of administration has become 
definitely victorious. 

i. The significance of collegiality in the early stages of the develop- 
ment of modern administration is particularly evident in the struggle 
which the financial bodies crested by Emperor Maximilian to meet the 
emergencies of the Turkish invasions carried on against his tendency to 
go over the heads of his officials and to issue orders and pledge securities 
for loans in accordance with every momentary whim. It was in the 
sphere of finance that the expropriation of the monarch began, for it 
was here in the first place that he lacked technical competence. This 
development occurred first in the Italian city states with their commer- 
cially organized system of accounting, then in the Burgundian and 
French Kingdoms, in the German territorial states, and independently 
of these in the Norman state of Sicily and in England. In the Near East 



282 THE TYPES OF LEGITIMATE DOMINATION- [ Ch. Ill 

the Divans played a similar role, as did the Yamen in China and the 
Bakufu in japan. In these cases, however, no rationally trained group of 
technically competent officials was available, and it was necessary to re- 
sort to the empirical knowledge of "experienced" officials. This accounts 
for the fact that 3 rationally bureaucratic system did not result. In Rome 
a somewhat similar role was played by the Senate. 

2. The role of collegiality in promoting the separation of the private 
household from the sphere of office is somewhat similar to that played by 
the large-scale voluntary trading companies in the separation of the 
household and the profit-making enterprise on the one hand, of personal 
property and capital on the other. 



16. The functionally Specific Division of Powers 

4." It is further possible for authoritative powers to be limited by a 
functionally specific separation of powers. This means entrusting different 
individuals with specifically differentiated "functions" and the corre- 
sponding powers. In the strictly legal type — as in the constitutional sep- 
aration of powers — these functions are rationally determined. It follows 
that in questions which involve two or more authorities it is only by 
means of a compromise between them that legitimate measures can be 
. taken. 

1. Functionally specific separation of powers differs from that based 
on status groups in that powers are divided in terms of their functionally 
objective character, This involves some kind of "constitution," which 
need not, however be formally enacted or written. The setup is such 
either that different types of measures have to be undertaken by differ- 
ent authorities or that the same type involves the cooperation by infor- 
mal compromise of a plurality of agencies. It is not merely spheres of 
competence which are separated in this case but also the ultimate 
powers. 

2. The functionally specific separation of powers is not wholly a 
modern phenomenon. The division of an independent political authority 
and an equally independent hierccratic authority instead of either 
caesaropapism or theocracy belongs in this category. Similarly, there is a 
certain sense in which the specified spheres of competence of the dif- 
ferent Roman magistracies may be thought of as a kind of "separation of 
powers." The same is true of the specialized charismata of Lamaist Bud- 
dhism. In China the Confucian Hanlin Academy and the "censors" had 
a position which, in relation to the Emperor, was largely independent. 
In most patrimonial states, but also in the Roman principate it has been 
usual for the administration of justice and the civil aspect of finance to 
be separated from the military es 1 iblishment, at least in the lower 



viii ] Collegiality and the Division of Powers 283 

reaches. But in these cases the concept of separation of powers loses all 
precision. It is hest to restrict its application to the supreme authority 
itself. If this restriction is accepted then the rational, formally enacted 
constitutional form of the separation of powers is entirely a modem 
phenomenon. In a constitutional but non-parliamentary state a budget 
can be put through only by a process of compromise between the legal 
authorities, such as the crown, and one or more legislative chambers. 

Historically, the separation of powers in Europe developed out of 
the old system of estates. Its theoretical basis for England was first 
worked out by Montesquieu and then by Burke. Further hack the divi- 
sion of powers began in the process of appropriation of governing pow- 
ers and of the means of administration by privileged groups. Another 
important factor lay in the increasing financial needs of the monarchs, 
both the recurring needs arising from the social and economic develop- 
ment and the exceptional ones of war time. They could not be met 
without the consent of privileged groups, even though the latter were 
often the first to insist that they be met.,In this situation it was necessary 
for the estates to reach a compromise, which was the historical origin of 
compromises over the budget and over legislation. The latter phenomena 
do not, however, belong in the context of the separation of powers as 
between estates but to the constitutional type. 

3. The constitutional separation of powers is a specifically unstable 
structure. What determines the actual power structure is the answer to 
the question what would happen if a constitutionally necessary com- 
promise, such as that over the budget, were not arrived at. An English 
king who attempted to rule without a budget today would risk his 
crown, whereas in pre-revolutionary Germany a Prussian king would 
not, for under the German system the position of the dynasty was 
dominant 



i 7. The Relations of the Political Separation of Powers 
to the Economy 

1. Collegiality of legal bodies with rationally defined functions may 
be favorable to objectivity and the absence of personal influences in their 
administrative actions. Even if such collegiality has a negative influence 
because it functions imprecisely, the general effect may favor the ra- 
tionality of economic activity. On the other hand, the big capitalistic 
interests of the present day, like those of the past, are apt, in political life 
— in parties and in all other connections that are important to them — to 
prefer monocracy. For monocracy is, from their point of view, more 
"discreet " The monocratic chief is more open to personal influence and is 
more easily swayed, thus making it more readily possible to influence the 



284 THE TYPES OF LEGITIMATE DOMINATION [ Ch. HI 

administration of justice and other governmental activity m favor of such 
powerful interests. This is also in accord with German experience. 

Conversely, the type of collegialify involving mutual veto powers or 
that in which collegial bodies have arisen out of the irrational appropria- 
tion of power of a traditional administrative staff may have irrational 
consequences. The type of collegiahty of financial bodies, which origi- 
nated specialized officialdom, has on the whole certainly been favorable 
to the formal rationalization of economic activity. 

In the United States the mcnocratic "party boss," rather than the offi- 
cial party organs which are often collegial, was preferred by the big 
contributors. This accounts for his indispensability, For the same reason, 
in Germany large sections of so-called "heavy industry" have favored 
bureaucratic domination rather than parliamentary government with its 
collegial system. 

2. Like every form of appropriation, the separation of powers creates 
established spheres of authority which, though they may not yet be ra- 
tional, still introduce an element of calculability into the functioning of 
the administrative apparatus. Hence, the separation of powers is gen- 
erally favorable to the formal rationalization of economic activity. Move- 
ments which, like the Soviet type, the French Convention, and the Com- 
mittee of Public Safety, aim to abolish the separation of powers, are 
definitely concerned with a more or less "just" economic distribution. 
Accordingly, they work against formal rationalization. 

(All details must wait for the extended analyses.) 



IX 

Parties 



1 S. Definition and Characteristics"' 

The term "party" will be employed to designate associations, member- 
ship in which rests on formally free recruitment. The end to which its 
activity is devoted is to secure power within an organization for its 
leaders in order to attain ideal or material advantages for its active mem- 
bers. These advantages may consist in the realization of certain objective 
policies or the attainment of personal advantages or both. Parties may 
have an ephemeral character or may be organized with a view to perms- 



ix } Parties 285 

nent activity. They may appear in all types of organizations and may 
themselves be organized in any one of a large variety of forms. They 
may consist of the following of a charismatic leader, of traditional re- 
tainers, or of purpose- or value-rational adherents. They may be oriented 
primarily to personal interests or to objective policies. Officially or merely 
in fact, they may be solely concerned with the attainment of power for 
their leaders and with securing positions in the administrative staff for 
their own members. (Then they are "patronage parties".) They may, 
on the other hand, predominantly and consciously act in the interests of 
a status group or a class or of certain objective policies or «? abstract 
principles. (In the latter case they are called "ideological parties") The 
attainment of positions in the administrative staff for their members is, 
however, at the least a secondary aim and objective programs are often 
merely a means of persuading outsiders to participate. 

By definition a party can exist only vrithin an organization, in order 
to influence its policy or gain control of it. Federations of party groups 
which cut across several corporate bodies are, however, not uncommon. 

t A party may employ any one of the conceivable means of gaining 
power. In cases where the government is determined by a formally free 
ballot and legislation is enacted by vote they are primarily organizations 
for the attraction of votes. Where voting takes a Hourse in accord with 
legitimate expectations they are legal parties. The existence of legal 
parties, because of the fact that their basis is fundamentally one of vol- 
untary adherence, always means that the business of politics is the pur- 
suit of interests. (It should, however, be noted that in this context, 
"interests" is by no means necessarily an economic category. In the first 
instance, it is a matter of political interests which rest either on^an 
ideological basis or on an interest in power as such.) 

In this case the political enterprise is in the hands of: 

a) party leaders and their staffs, whereas 

b) active party members have for the most part merely trie func- 
tion of acclaiming their leaders. Under certain circumstances, however, 
they may exercise some forms of control, participate in discussion, voice 
complaints, or even initiate resolutions within the party; 

c) the inactive masses of electors or voters (MitUhtfer') are merely 
objects whose votes are sought at election time. Their attitudes are im- 
portant only for the agitation of the competing parties; 

d) contributors to party funds usually remain behind the scenes. 
Apart from formally organized legal parties in a polity, there are the 

following principal types: 

a) Charismatic parties arising from disagreement over ' the chads- 



/ 
/ 



286 THE TYPES OF LEGITIMATE DOMINATION [Ch. Ill 

matic quality of the leader or over the question of who, in charismatic 
terms, is to be recognized as the correct leader. They create a schism. 

h) Traditionalistic parties arising from controversy over the way in 
which the chief exercises his traditional authority in the sphere of his 
arbitrary will and grace. They arise in the form of movements to obstruct 
innovations or in open revolt against them. 

c) Parties organized about questions of faith (GlauhensyaTteien). 
These are usually, though not necessarily, identical with a). They arise 
out of a disagreement over the content of doctrines or declarations of 
faith. They talce the form of heresies, which are to be found even in 
rational parties such as the socialist 

d) Appropriation parties [or spoils-oriented parties] arising from con- 
flict with the chief and his administrative staff over the filling of positions 
in the administrative staff. This type is very often, though by no means 
necessarily, identical with b). 

Structurally, parties may conform to the same types as any other 
organizations. They may thus be charismatically oriented by devotion 
to the leader, with the plebiscite as an expression of confidence. They 
may be traditional with adherence based on the social prestige of the 
chief or of an eminent neighbor, or they may be rational with adherence 
to a leader and staff set up by a "constitutional process" of election. 
These differences may apply both to the basis of obedience of the mem- 
bers, and of the administrative staff. Further elaboration must he re- 
served to the Sociology of the State. [The $taat$soziotogie was never 
written.] 

It is of crucial importance for the economic aspect of the distribution 
of power and for the determination of party policy by what method the 
party activities are financed. Among the possibilities are small contribu- 
tions from the masses of members and sympathizers; large contributions 
from disinterested sympathizers with its cause; direct or indirect sell-out 
to interested parties; or taxation either of elements under obligation 
to the party, including its members, or of its defeated opponents. These 
details, too, belong in the Staatssoziologie. 

i. As has been pointed out, parties can exist by definition only 
within an organization, whether political or other, and only when there 
is a struggle for its control. Within a party there may be and very often 
are sub-parties; for example, as ephemeral structures they are typical in 
the nomination campaigns of presidential candidates of the American 
parties. On a permanent basis an example is the "Young Liberals" in 
Germany. Parties which extend to a number of different polities are 
illustrated by the Guelphs and Ghibellines in Italy in the thirteenth 
tentury and by the modem socialists. 



1 



tx } Parties 287 

2. The criterion of formally voluntary solicitation and adherence in 
terms of the rules of the group within which the party exists is treated 
here as the crucial point. It involves a distinction of major sociological 
significance from all associations which are prescribed and controlled by 
the polity. Even where the order of the polity takes notice of the 
existence of parties, as in the United States and in the German system 
of proportional representation, the voluntarist component remains. It 
remains even if an attempt is made to regulate their constitution. .But 
when a party becomes a closed group which is incorporated by law into 
the administrative staff, as was true of the Guelphs in the Florentine 
statutes of the thirteenth century, it ceases to be a party and becomes a 
part of the polity. 

3. Under genuinely charismatic domination, parties are necessarily 
schismatic sects. Their conflict is essentially over questions of faith and, 
as such, is basically irreconcilable. The situation in a strictly patriarchal 
body may be somewhat similar. Both these types of parties, at least in 
the pure form, are radically different from parties in the modern sense. 
In the usual kind of hereditary monarchy and estate-type organization, 
it is common for groups of retainers, composed of pretenders to fiefs and 
offices, to rally around a pretender to the throne. Personal followings are 
also common in organizations of honoratiores such as the aristocratic city 
states. They are, however, also prominent in some democracies. The 
modern type of party does not arise except in the legal state with a 
representative constitution. It will he further analyzed in the Sociology 
of the State. 

4. The classic example of parties in the modern state organized 
primarily around patronage are the two great American parties of the 
last generation. Parties primarily oriented to issues and ideology have 
been the older type of Conservatism and Liberalism, bourgeois Democ- 
racy, later the Social Democrats and the [Catholic] Center Party, In all, 
except the last, there has been a very prominent element of class in- 
terest. After the Center attained the principal points of its original 
program, it became very largely a pure patronage party. In all these 
types, even those which are most purely an expression of class interests, 
the (ideal and material) interests of the party leaders and the staff in 
power, office, and remuneration always play an important part. There is 
a tendency for the interests of the electorate to be taken into account 
only so far as their neglect would endanger electoral prospects. This 
fact is one of the sources of public opposition to political parties as such. 

5. The different forms which the internal organization of parties 
take will be dealt with separately in the proper place. One fact, how- 
ever, is common to all these forms, namely, that there is a central group 
of individuals who assume the active direction of party affairs, including 
the formulation of programs and the selection of candidates. There is, 
secondly, a group of "members" whose role is notably more passive, 
and finally, the great mass of citizens whose role is only that of .objects 
of solicitation by the various parties. They merely choose between the 



288 



THE TYPES OF LEGITIMATE DOMINATION 



Ck. Ill 



various candidates and programs offered by the different parties. Given 
the voluntary character of party affiliation this structure is unavoidable. 
It is this which is meant by the statement that party activity is a matter 
of "play of interests." (As has already been. stated, it is political interests 
and not economic interests which are involved.) The role of interests in 
this sense is the second principal point of attack for the opposition to 
parties as such. In this respect, there is a formal similarity between the 
party system and the system of capitalistic enterprise which rests on the 
recruitment of formally free labor, 

6. The role in party finance of large-scale contributors is by no means 
confined to the "bourgeois" parties. Thus Paul Singer was a contributor 
to the Social Democratic party Cand, by the way, humanitarian causes) 
of grand style (and purest motives so far as is known). His whole posi- 
tion as chairman of the party rested on this fact. Furthermore, the 
parties of the Russian revolution in the Kerensky stage were partly 
financed by very large Moscow business interests. Other German parties 
on the "right" have been financed by heavy industry, while the Center 
party occasionally had large contributions from Catholic millionaires. 

For reasons which are readily understandable, the subject of party 
finances, though one of the most important aspects of the party 
system, is the most difficult to secure information about. It seems prob- 
able that in certain special cases a "machine" has actually been 
"bought." Apart from the role of individual large contributors, there are 
two basic alternatives: On the one hand, as in the English system, 
the electoral candidate may carry the burden of campaign expenses, 
with the result that the candidates are selected on a plutocratic basis. 
On the other hand, the costs may be borne by the "machine," in which 
case the candidates become dependent on the party organization. Parties 
as permanent organizations have always varied between these two funda- 
mental types, in the thirteenth century in Italy just as much as today. 
These facts should not be covered up by fine phrases. Of course, there 
are limits to the power of party finance. It can only exercise an influence 
insofar as a "market" exists, but as in the case of capitalistic enterprise, 
the power of the seller as compared with the consumer has been tre- 
mendously increased by the suggestive appeal of advertising. This is 
particularly true of "radical" parties regardless of whether they are on 
the right or the left. 



x } Direct Democracy & Representative Administration 289 

X 

Direct Democracy and Representative 

Administration " 



1 9 . The Conditions of Direct Democracy and of 
Administration by Notables 

Though a certain minimum of imperative powers in the execution of 
measures is unavoidable, certain organizations may attempt to reduce it 
as far as possible. This means that persons in authority are held obligated 
to act solely in accordance with the will of the members and in their 
service by virtue of the authority given by them. In small groups where 
all the members can be assembled at a single place, where they know 
each other and can be treated socially as equals this can be attained in a 
high degree. It has, however, been attempted'in large groups, notably the 
corporate cities and city states of the past and certain regional groups. 

The following are the principal technical means of attaining this, end : . 

(a) Short terms of office, if possible only running between two general / 

meetings of the members; (b) Liability to recall at any time; (c) The 
principle of rotation or of selection by lot in filling offices so that every 
member takes a turn at some time. This makes it possible to avoid the 
position of power of technically trained persons or of those with long 
experience and command of official secrets; (d) A stricdy defined man- 
date for the conduct of office laid down by the assembly of members. 
The sphere of competence is thus concretely defined and not of a general 
character; (e) A strict obligation to render an accounting to the general 
assembly; (f)~TKe obligation to submit every unusual question which 
has not been foreseen to the assembly of~members or to a committee 
representing them; (g) The distribution of powers between a large num- 
ber of offices each with its own particular function; 00 The treatment of 
office as an avocation and not a full time occupation. 

If the administrative staff is chosen by ballot, the process of election 
takes place in the assembly of members. Administration is primarily oral, 
with written records only so far as it is necessary to have a clear record 
of certain rights. All important measures are submitted to the assembly. 

This and similar types of administration, as long as the assembly of 
members is effective, will be caDed "direct" or "immediate democracy." 



290 THE TVPES OF LEGITIMATE DOMINATION [ Ch. Ill 

1. The North American "township" and the smaller Swiss Cantons 
such as Glarus, Schwyz, and Appenzell are all, on account of their size 
alone, on the borderline of applicability of immediate democracy. The 
Athenian democracy actually overstepped this boundary to an important 
extent, and the farlamentum of the early medieval Italian cities still 
more radically. Voluntary associations, guilds, scientific, academic, and 
athletic associations of all sorts often have this form. It is, however, also 
applicable to the internal organization of aristocratic groups of masters 
who are unwilling to allow any individual to hold authority over them. 

2. In addition to the small scale of the group in numbers or terri- 
torial extent, or still better in both, as essential conditions of immediate 
democracy, is the absence of qualitative functions which can only be 
adequately handled by professional specialists. Where such a group of 
professional specialists is present, no matter how strongly the attempt is' 
made to keep them in a dependent position, the seeds of bureaucratiza- 
tion are present. Above all, such persons can neither be appointed nor 
dismissed according to the procedures appropriate to immediate democ- 
racy. 

3. Closely related to the rational forms of immediate democracy is 
the primitive gerontocratic or patriarchal group. This is because those 
holding authority are expected to administer it in the "service" of the 
members. However, there are two principal differences: governing 
powers are normally appropriated and action is strictly bound to tradi- 
tion. Immediate democracy is either a form of organization of rational 
groups or may become a rational form. The transitional types will be 
discussed presently- 



20. Administration by Notables 

Notables Qionoratiores) are persons (1) whose economic position 
permits them to hold continuous policy-making and administrative posi- 
tions in an organization -without (more than nominal) remuneration; 
(2) who enjoy social prestige of whatever derivation in such a manner 
that they are likely to hold office by virtue of the member's confidence, 
which at first is freely given and then traditionally accorded. 

Most of all, the notable's position presupposes that the individual is 
able to live for politics without living from politics. He must hence be 
able to count on a certain level of provision from private sources, This 
condition is most likely to be met by receivers of property income of all 
sorts, such as landowners, slaveowners, and owners of cattle, real estate, 
or securities. Along with these, people with a regular occupation are in 
a favorable position if their occupation is such as to leave them free for 
political activity as an avocation. This is particularly true of persons 
whose occupational activity is seasonal, notably agriculture, of lawyers, 



} 



x] Direct Democracy & Representative Administration 29 1 

who have an office staff to depend on, and certain others of the free pro- 
fessions. It is also to a large extent true of patrician merchants whose 
business is not continuously exacting. The most unfavorably situated 
are independent industrial entrepreneurs and industrial workers. Every 
type of immediate democracy has a tendency to shift to a form of govern- 
ment by notables. From an ideal point of view this is because they are 
held to be especially well-qualified by experience and objectivity. From a 
material point of view this form of government is especially cheap, in- 
deed, sometimes completely costless. Such a person is partly himself in 
possession of the means of administration or provides them out of his 
own private resources, while in part they are put at his disposal by the 
organization. 

1. The classification of notables as a status group will be under- 
taken later {ch. IV]. The primary basis in all primitive societies is 
wealth, which is often sufficient to make a man a "chief." In addition to 
this, according to different circumstances, hereditary charisma or eco- 
nomic availability may be more prominent. 

' 2. In the American township the tendency has been to favor actual 
rotation on grounds of natural rights. As opposed to this the immediate 
democracy of the Swiss Cantons has been characterized by recurrence of 
the same names and, still more, families among the office holders. The 
fact that some peisons were economically more available than others 
became also important in the Germanic communes (Dinggemeinden), 
and in the initially, at least in some cases, strictly democratic North- 
German towns this was one of the sources for the rise of the meliores, 
and hence of the patriciate, who monopolized the city councils. 

3. Administration by notables is found in all kinds of organizations. 
It is, for instance, typical of political parties which are not highly 
bureaucratized. It always means an extensive rather than intensive type 
of administration. When there are very urgent economic or administra- 
tive needs for precise action, though it is free to the group as such, it is 
hence often very expensive for individual members. 

vBoth immediate democracy and government by notables are tech- 
nically inadequate, on the one hand in organizations beyond a certain 
limit of size, constituting more than a few thousand full-fledged members, 
or on the other hand, where functions are involved which require tech- 
nical training or continuity of policy. If, in such a case, permanent 
technical officials are appointed alongside of shifting heads, actual power 
will normally tend to fall into the hands of the former, who do the real 
work, while the latter remain essentially dilettantes. 

A typical example is to be found in the situation of the annually elected 
head (ReJctor) of the German university, who administers academic affairs 
only as a sideline, vts-d-vis the syndics, or under certain circumstances even 



% 9 2 THE TYPES OF LEGITIMATE DOMINATION [ Ck. Ill 

the permanent officials in the university administration (KanzleO- Only an 
autonomous university president with a long term of office like the Ameri- 
can type would, apart from very exceptional cases, be in a position to create 
a genuinely independent self-government of a university which went be- 
yond phrase-making and expressions of self-importance. In Germany, how- 
ever, both the vanity of academic faculties and the interests of the state 
bureaucracy in their own power stand in the way of any such develop- 
ment. Varying according to particular circumstances, similar situations are 
tobe found everywhere. 

' Immediate democracy and government by notables exist in their 
genuine forms, free from Herrschaft, only so long as parties which con- 
tend with each other and attempt to appropriate office do not develop on 
a permanent basis. If they do, the leader of the contending and vic- 
torious party and his staff constitute a structure of domination, regardless 
of how they attain power and whether they formally retain the previous 
mode of administration. 

(Indeed, this is a relatively common form of destroying the old ways.) 



XI 

Representation 



2 1 . The Principal Forms and Characteristics 

The primary fact underlying representation is that the action of cer- 
tain members of an organization, the "representatives, ' is considered 
binding on the others or accepted by them as legitimate and obligatory 
(cf. ch. I, sec. i r). Within the structures of domination, representation 
takes a variety of typical fo>:ms, 

i. Appropriated representation. In this case the chiil or a member of 
the administrative staff holds sopropriated rights of representation. In 
this form it is very ancient and is found in all kinds of patriarchs! and 
charismatic groups. The power of representation has a traditionally limited 
scope. 

This category covers the sheiks of dans and ci >ers o£ tribes, the 
headmen of castes in India, hereditary priests of secL . the patel of *he 
Indian village, the Obermarke?, hereditary monarchs. and a!! sorts of 
similar patriarchal or patrimonial heads of organiza.k^s. Authority to 
conclude contractual agreement- and to agree on b'i riding rales govern- 



xi } Representation 293 

ing their relation- with the elders of neighboring tribes exists in what 
are otherwise exceedingly primitive conditions, as in Australia. 

2. Closely related to appropriated representation is estate-type repre- 
sentaiion. Th's d- ..-■.;; not constitute representation so far as it is a matter 
primarily of lepies^nting and enforcing appropriated rights or privileges. 
It may, however, have a representative character and be recognized as 
such, so far as t.ne effect of the decisions of such bodies as estates extends 
beyond the personal holders of privileges to the unprivileged groups. 
This may not \k confined to the immediate retainers but may include 
c tilers who are not in the socially privileged. group. These others are 
regubily bound i;y the action involved, whether this is merely taken for 
granted or a representative authority is explicidy claimed. 

This is true olf ail feudal courts and assemblies of privileged estates, 
and included the Estates of the late Middle Ages in Germany and of 
more recent >imes In Antiquity and in non-European areas this institu- 
tion occurs oniy sporadically and has not been a universal stage of de- 
velopment. 

'3. The radical antithesis of this is "instructed" representation. In 
this case elected representatives or representatives chosen by rotation or 
lot or in any other r.ianner exercise powers of representation which are 
strictly limited by ~n imperative mandate znd a right of recall. This type 
of "represent! tivt" is, in effect, an agent of those he represents. 

The imperative mandate has had foe a very long time a place in the 
most various organ Nations. For instance, the elected representatives of the 
communes in Hance were almost always bound by the cahiers de do- 
Uances. At the present time this type of representation is particularly 
prominent in the Soviet type of republican organization where it serves 
a:; a substitute £0: immediate democracy, since the latter is impossible in 
a mass organization. Instructed mandates are certainly to be found in all 
sorts of oroanL Ui.}ns outside the Western World, both in the Middle 
Ages and in modern times ; but nowhere else have they been of great 
, historical significance. 

4. Free re prt. mutation. The representative, who is generally elected 
(and possibly subject to rotation), is not bound by instruction but is in a 
position to mike his own decisions. He is obligated only to express his 
own genuine conviction, and not to promote the interests of those who 
have elected him. 

Free representation in this sense is not uncommonly an unavoidable 
confequence of the incompleteness or absence of instructions, but in 
other cases it is the deliberate object of choice. In so far as this is true, 
the representative, by virtue of his election, exercises authority over the 



2 9 4 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

electors and is not merely their agent. The most prominent example of 
this type is modern parliamentary representation. It shares with legal 
authority the general tendency to impersonality, the obligation to con- 
form to abstract norms, political or ethical. 

This feature is most pronounced in the case of the parliaments, the 
representative bodies of the modern political organizations. Their func- 
tion is not understandable apart from the voluntaristic intervention of the 
parties. It is the parties which present candidates and programs to the 
politically passive citizens. They also, by the process of compromise and 
balloting within the parliament, create the norms which govern the ad- 
ministrative process. They subject the administration to control, support 
it by their confidence, or overthrow it by withdrawal of confidence when- 
ever, by virtue of commanding a majority of votes, they are in a position 
to do this. 

The party leader and the administrative staff which is appointed by 
him, consisting of ministers, secretaries of state, and sometimes under- 
secretaries, constitute the political administration of the state, that is, 
their position is dependent upon the electoral success of their party, 
and an electoral defeat forces their resignation. Where party govern- 
ment is fully developed they are imposed on the formal head of the state, 
the monarch, by the party composition of the parliament. The monarch 
is expropriated from the actual governing power and his role is limited 
to two things. 

i.) By negotiation with the parties, he selects the effective head and 
Formally legitimizes his position by appointment. 

2.) He acts as an agency for legalizing the measures of the party 
chief who at the time is in power. 

The "cabinet" of ministers, a committee of the majority party, may 
be organized in a monocratic or a more collegjal form. The latter is un- 
avoidable in coalition cabinets, whereas the former is more precise in its 
functioning. The cabinet protects itself from the attacks of its followers 
who seek office and its opponents by the usual means, by monopolizing 
official secrets and maintaining solidarity against all outsiders. Unless 
there is an effective separation of powers, this system involves the com- 
plete appropriation of all powers by the party organization in control at 
the time; not only the top positions but often many of the lower offices 
become benefices of the party followers. This may be called parliamen- 
tary cabinet government. 

The facts are in many respects best presented in the brilliantly 
polemical attack on the system by W. Hasbach [Die parlamentarische 
Kabinettsregierung, 1919] which has erroneously been called a "political 
description." The author in his own essay, Parlament und Regierung im 



od ] Representation 295 

neugeotdneten Deutschland, has been careful to emphasize that it is a 
polemical work which has arisen out of the particular situation of the 
time. 

Where the appropriation of power by the party government is not 
complete but the monarch or a corresponding elected president enjoys 
independent power especially in appointments to office, including mili- 
tary officers, there is a constitutional government. This is likely to be 
found where there is a formal separation of powers. A special case is an 
elective presidency combined with a representative parliament. 

The executive authorities or the chief executive of a parliamentary 
organization may also be chosen by parliament itself: this is purely repre- 
sentative government. 

The governing powers of representative bodies may be both limited 
and legitimized where direct canvassing of the masses of members of the 
groups is permitted through the referendum. 

1 . It is not representation as such but free representation in conjunc- 
tion with the presence of parliamentary bodies which is peculiar to the 
modern Western World. Only relatively small beginnings are to be 
found in Antiquity and elsewhere in such forms as assemblies of dele- 
gates in the confederations of city states. But in principle the members 
of these bodies were usually bound by instructions. 

2. The abolition of imperative mandates has been very strongly in- 
fluenced by the positions of the monarchs. The French kings regularly 
demanded that the delegates to the Estates General should be elected on 
a basis which left them free to vote for the recommendations of the 
king. If they had been bound by imperative, mandates, the king's policy 
would have been seriously obstructed. In the English Parliament, as will 
be pointed out below, both the composition and the procedure of the 
body led to the same result. It is connected with this fact that right up 
to the Reform Bill of 1867, the members of Parliament regarded them- 
selves as a specially privileged group. This is shown clearly by the rig- 
orous exclusion of publicity. (As late as the middle of the eighteenth 
century, heavy penalties were laid upon newspapers which reported the 
transactions of Parliament.) The theory came to be that the parliamentary 
deputy was a "representative" of the peopte as a whole and that hence 
he was not bound by any specific mandates, was not an "agent" but a 
person in authority (Herr). This theory was already well developed in 
the literature before it received its classical rhetorical form in the French 
Revolution. 

3. It is not yet possible at this point to analyse in detail the process 
by which the English king and certain others following his example came 
to be gradually expropriated by the unofficial cabinet system which rep- 
resented only party groups. This seems at first sight to be a verv peculiar 
development in spite of the universal importance of its consequences. 
But in view of the fact that bureaucracy was relatively undeveloped in 



2$6 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

England, it is by no means so "fortuitous" as has often been claimed. It 
is also not yet possible to analyse the partly plebiscitarian and partly 
representative American system of functional separation of powers and 
the place in it of the referendum (which is essentially an expression of 
mistrust of corrupt legislative bodies). Also Swiss democracy, and the 
related forms of purely representative democracy which have recently 
appeared in some of the German states, will have to be left aside for the 
present. The purpose of the above discussion was only to outline a' few 
of the most important types. 

4. ScK:aIled constitutional monarchy, which is above all character 
ized by appropriation of the power of patronage including the appoint- ! 

ment of ministers and of military commanders by the monarch, may 1 

come to be very similar to a purely parliamentary regime of the English , I 
type. Conversely, the latter by no means necessarily excludes a poiiti- i 

cally gifted monarch like Edward VII from effective participation in ! 

political affairs. He need not be a mere figurehead. Details will be given '■ 

below. 

J. Groups governed by representative bodies are by no means neces- 
sarily democratic in the sense that all their members have equal rights. 
Quite the contrary, it can be shown that the classic soil for the growth : 

of parliamentary government has tended to be an aristocratic or pluto- ' 

era tic society. This was true of England. ' 

Relations to the economic order: These are highly complex and will \ 

have to be analyzed separately. For the present primary purposes only the 
following general remarks will be made: 

i. One factor in the development of free representation was the 
undermining of the economic basis of the older status groups. Tin's made 
it possible for persons with demagogic gifts to pursue their career regard- ^ 
less of their social position. The source of this undermining process was 
modern capitalism. 

2. CalculabiHty and reliability m the functioning of the legal order 
and the administrative system is vital to rational capitalism. Tlu- need 
led the bourgeoisie to attempt to impose check:, on patrimonial monarchs 
and the feudal nobility by means of a collegia] body in which the 
bourgeois had a decisive voice, which controlled administration and 
finance and could exercise an important influence on changes in the 
legal order. 

3. When this transition was taking place, the proletariat had not yet 
become a political power and did not yet appear dangerous to the bour- 
geoisie. Furthermore, there was no hesitation in eliminating any threat to 
the power of the propertied class by means of property qualifications for 
the franchise. 

4. The formal rationalization of the economic order and the state, 
which was favorable to capitalistic development, could be strongly pro- 



XI 



i ] Representation 2 9 7 



moted by parliaments. Furthermore, it seemed relatively easy to secure 
influence on party organizations. 

5. The development of demagogy in the activities of the existing 
parties was a function of the extension of the franchise. Two main 
factors have tended to make monarchs and ministers everywhere favor- 
able to universal suffrage, namely, the necessity for the support of the 
proletariat in foreign conflict and the hope, which has proved to be un- 
justified, that, as compared to the bourgeoisie, they would be a con- 
servative influence. 

6. Parliaments have tended to function smoothly as long as their 
composition was drawfT predominantly from the classes of wealth and 
culture, that is, as they were composed of honoratiores. Established social 
status rather than class interests as such underlay the party structure. 
The conflicts tended to be only those between different forms of wealth, 
hut with the rise of class parties to power, especially the proletarian 
parties, the situation of parliaments has changed radically. Another im- 
portant factor in the change rjas been the bureaucratization of party 
organizations, with its specifically plebiscitary character. The member of 
parliament thereby ceases to be "master" of the electors and becomes 
merely a "servant" of the leaders of the party machine. This will have to 
be discussed more in detail elsewhere. 



22. Representation by the Agents of Interest Groups 

t A fifth type of representation is that by the agents of interest groups. 
This term will be applied to the type of representative body where the 
selection of members is not a matter of free choice, but where the bodv 
consists of persons who are chosen on the basis of their occupations or 
their social or class membership, each group being represented by persor.s 
of its own sort. At the present time the tendency of this type is to 
1 representation on an occupational basis. 

This kind of representation may, however, have a very d iff? rent 
significance, according to certain possible variations wiriiin it. In the first 
place, s f will differ widely according to the specific occupations, status, 
groups and classes which are involved, and, secondly, according to 
whether direct balloting or compromise is the means of settling differ- 
ences. In the first connection its significance will vary greatly according 
to the numerical proportions of the different categories. It is possible for 
such a system to be radically revolutionary or extremely conservative in 
its character. In every casr it is a product of the development of powerful 
parties representing class interests. 



298 THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

As a rule, this kind of representation is propagated with a view 
toward disenfranchising certain strata: 

(a) either by distributing mandates among the occupations and thus 
in fact disenfranchising the numerically superior masses; or- 

(b) by openly and formally limiting suffrage to the non-propertied 
and thus by disenfranchising those strata whose power rests on their 
economic position (the case of a state of Soviets). 

It is, at least, the theory that this type of representation weakens the 
exclusive sway of party interests, though, if experience so far is con- 
clusive, it does not eliminate it. It is also theoretically possible that the 
role of campaign funds can be lessened, but it is doubtful to what degree 
this is true. Representative bodies of this type tend toward the absence 
of effective individual leadership (FiihreTlosigkeit), for the professional 
representative of an interest group is likely to be the only person who 
can devote his whole time to his function; among the non-propertied 
strata this task hence devolves upon the paid secretaries of the organized 
interest groups. 

1. Representation where compromise has provided the means of set- 
tling differences is characteristic of all the older historical bodies of 
"estates." Today it is dominant in the labor-management committees and 
wherever negotiations between the various separate authorities is the 
order of the day. It is impossible to assign a numerical value to the 
"importance" of an occupational group. Above all the interests of the 
masses of workers on the one hand and of the increasingly smaller 
number of entrepreneurs, who are likely both to be particularly well 
informed and to have strong personal interests, somehow have to be 
taken account of regardless of numbers. These interests are often highly 
antagonistic, hence majority voting among elements which in status and 
class affiliation are highly heterogeneous, is exceedingly artificial. The 
ballot as a basis of final decision is characteristic of settling and express- 
ing the compromise of parties. It is not, however, characteristic of the 
occupational interest groups. 

2. The ballot is adequate in social groups where the representation 
consists of elements of roughly equal social status, Thus the so-called 
Soviets are made up only of workers. The prototype is the mercadanza 
of the time of the guilds' struggle [for power]. It was composed of dele- 
gates of the individual guilds who decided matters by majority vote. It 
was, however, in fact in danger of secession if certain particularly power- 
ful guilds were out- voted. Even the participation of white-collar workers 
in Soviets raises problems. It has been usual to put mechanical limits to 
their share of votes. If representatives of peasants and craftsmen are 
admitted,, the situation becomes still more complicated, and if the so- 
called "higher" professions and business interests are brought in, it is 
impossible for questions to be decided by ballot. If a labor-management 
bodv is organized in terms of equal representation, the tendencv is for 



od ] Representation 2 9 9 

"yellow" unions to support the employers and certain types of employers 
to support the workers. The result is that the elements which are most 
lacking in class loyalty CKhssenwiirde') have the most decisive influ- 
ence. 

But even purely proletarian "Soviets" would in settled times be subject 
to the development of sharp antagonism between different groups of 
workers, which would probably paralyze the Soviets in effect. In any 
case, however, it would open the door for adroit politics in playing the 
different interests off against each other. This is the reason why the 
bureaucratic elements have been so friendly to the idea. The same thing 
would be likely to happen as between representatives of peasants and of 
industrial workers. Indeed any attempt to organize such representative 
bodies otherwise than on a strictly revolutionary basis comes down in the 
last analysis only to another opportunity for electoral manipulation in 
different forms. 

3. The probability of the development of representation on an occu- 
pational basis is by no means low. In times of the stabilization of tech- 
nical and economical development it is particularly high, but in such 
situations the importance of parties will be reduced at any rate. Unless 
this situation arises, it is obvious that occupational representative bodies 
"will fail to eliminate parties. On the contrary, as can be clearly seen at 
the present time, all the way from the "Works Councils" to the Federal 
Economic Council in Germany, a great mass of new benefices for loyal 
party henchmen are being created and made use of. Politics is penetrat- 
ing into the economic order at the same time that economic interests are 
entering into politics. There are a number of different possible value 
attitudes toward this situation, but this does not alter the facts. 

Genuine parliamentary representation with the voluntaristic play of 
interests in the political sphere, the resulting plebiscitary party organiza- 
tion with its consequences, and the modem idea of rational representa- 
tion by interest groups, are all peculiar to the Western World. None of 
these is understandable apart from the peculiar Western development of 
status groups and classes. Even in the Middle Ages the seeds of these 
phenomena were present in the Western World, and only there. It is 
only in the Western World that "cities" and "estates" (jex et regnum), 
"bourgeois" and "proletarians" have existed. 



NOTES 

Unless otherwise indicated, all notes are by Parsons. 

1. Weber put AutoritUt in quotation marks and parentheses behind Herr- 
schaft, referring to an alternative colloquial term, but the sentence makes it clear 
that this does not yet specify the basis of compliance. However, the chapter is 
devoted to a typology or legitimate domination, which will alternatively be trans- 
lated as authority. The chapter begins with a reformulation of ch. X in Pan Two, 



3 O O THE TYPES OF LEGITIMATE DOMINATION [ Ch. Ill 

and then presents a concise classification of the more descriptive exposition in 
chs. XI-XVI. (R) 

2. Weber does not explain this distinction. By a "technical rule" he prob- 
ably means a prescribed course of action which is dictated primarily on grounds 
touching efficiency of the performance of the immediate functions, while by 
"norms' he probably means rules which limit conduct on grounds other than 
those of efficiency. Of course, in one sense all rules are norms in that they are 
prescriptions for conduct, conformity with which is problematical. 

3. It has seemed necessary to use the English word "office" in three different 
meanings, which are distinguished in Weber's discussion by at least two terms. 
The first is Amt, which means "office" in the sense of the institutionally defined 
status of a person. The second is the "work premises," as in the expression "he 
spent the afternoon in his office." For this Weber uses Bureau as also for the 
third meaning which he has just defined", the "organized work process of a 
group." In this last sense an office is a particular type of "enterprise," or 
Berried in Weber's sense. This use is established in English in such expressions 
as "the District Attorney's Office has such and such functions." Which of the 
three meanings is involved in a given case will generally be clear from the con- 
text. 

3a. Under the Oberhof system, appeal against the local court's decision lay 
not to the court of the territorial prince but to that of one of the major inde- 
pendent cities with whose legal system the locality had originally been endowed 
by its ruler. Important "superior courts" (Ofcerfeofe) of this type for large parts 
of Germany and some areas in the Slavic East were the courts of Freiburg, Lii- 
beck, Magdeburg, and other towns. Cf. H. Mitteis, Deutsche Rechtsgesckichte 
(5thed.,Miinchen 1958), 159, 190. (Wi) 

4. As Parsons noted, "the term Stand with its derivatives is perhaps the most 
troublesome single term in Weber's text. It refers to a social group the members 
of which occupy a relatively well-defined common status, particularly with ref- 
erence to social stratification, though this reference is not always important. In 
addition to common status, there is the further criterion that the members of a 
Stand have a common mode of life and usually more or less well-defined code "of 
behavior" (Parsons, ed., Theory, 347). Parsons chose "decentralized authority" 
for "estate-type domination" because the members of the administrative staff are' 
independent of their master. However, since the term standisch derives from' a 
specific historical context, even though Weber uses it often in a generic sense, it 
appeared appropriate to use the English equivalent "estate," which can denote 
both the medieval Estates and high social rank. Stand alone, however, will usually 
he translated as "status group" or "socially privileged group." (R) 

5. Cf. Georg v. Below, Der deutsche Stoat des Mittelalters, 1914 (sec. ed-. 
1925); id., Territorium und Stadt Csec. ed., 1923), i6iff; id., Vom Mittelalter 
bis zwr Neuzeit, 1924; for a critique, see Ernst Kem, Moderner Staat und Staais- 
begriff, 1949. Karl Ludwig v. Haller, Resbmration der Staatswissenschaft (sec. 
ed., vols. 1-4, 1820-22, vol. 5, 1834, vol. 6, 1825). (W) 

6. Kurt Eisner, a brilliant Social Democratic (not Communist) intellectual 
proclaimed the Bavarian Republic in Nov. 1918. He was murdered on Feb. 21, 
1919. When Hie death sentence of the murderer, Count Arco, was commuted to a 
life sentence in Jan. 1920, Weber announced at the beginning of one of his 
lectures that he favored Arco's execution on substantive and pragmatic grounds. 
In the next lecture this resulted in a packed audience and noisy right-wing 
demonstration, which prevented Weber from lecturing. See now the account of 
two eyewitnesses in Ren6 Konig and Johannes Winckelmann, eds., Max Weber 



Notes 301 

zum Gedachtnis, Special issue 7 of the Kolner Zeitschrift fiir Soziologie, 1963, 
24-29. On this period, cf. also the references in ch. II, n. 20. (R) 

7. Weber here uses Welt in quotation marks, indicating that it refers to its 
meaning in what is primarily a religious context. It is the sphere of "worldly" 
things and interests as distinguished from transcendental religious interests. 

8. Cf. Theodor Mommsen, Abrtes des rdmhchen Staatsrechts. First ed. 1893, 
sec. ed., 1907, io2fT, i62f. (W) 

9. Cf. Fritz R&rig, Geblutsrecht und freie Wahl in Hirer Auswirkung auf 
die deutsche Geschichte (Abhandlungen der Berliner Akademie, 1945/6, Philo- 
sophische-Historische Klasse Nr. 6). (W) 

10. The works of Ulrich Stutz are listed in Rrurmer-v. Schwerin, Grundzuge 
der deutschen RechUgeschickte. 8th ed. (1930), paragraph 33, 137. (W) 

1 ©a. On the kayasth, a caste of scribes in Bengal and elsewhere in India, cf. 
Weber, Religion of India, 751., 298. (Wi) 

11. See. C. H. Becker, Islamstudien (Leipzig: Quelle und Meyer, 1924), I, 

ch. 9. (R) 

12. For the older definition of "organization," see Part Two, ch. X:3. Weber's 
definition of Organisation refers to the activities of a staff or apparatus, including 
the sharing of executive powers with the "master" (chief, head). This definition 
comes close to that of "organized action" ( Verbandshandeln) in sec. 1 2, ch. I. The 
term Verband, which I prefer to render as "organization," is more broadJy defined, 
since rules may be enforced by a head alone. Usually, however, a Verband has a 
staff, and Weber almost always uses the term in this sense' Hence, the terminolog- 
ical difference between Verband and Organisation can be disregarded most of the 
time- This is an additional reason for rendering Verband, which Weber uses much 
more frequently than Organisation, as "organization" in English. (R) 

1 3. Weber titled both headings "The An ti- Authoritarian Ckerrschaftsfremde') 
Reinterpretation of Charisma," because recognition by the followers may become 
the formal basis of legitimacy, in contrast to the earlier stage in which charisma 
claims legitimacy and recognition on its own grounds. Since Weber's meaning of 
"anti-authoritarian" is not obvious without explanation, more descriptive titles 
were chosen. (R) 

14. German territorial princes, since the thirteenth and fourteenth centuries, 
occasionally called on feudal and ecclesiastic notables for advice. As these coun- 
selors were only visiting at court, they were called Rate von Haws aus, or famii- 
ares domestici, cansiliarii, etc.; cf. Georg Ludwig von Maurer, Geschichte der 
Fronhofe, der Bauernhofe vnd der, ^fiofverfassung in Deutschland (Erlangen, 
1862), II, 237, 2 4 oS, 3 i2f. (GM) 

15. This continues the enumeration at the beginning of sec. 15. (R) 
, 16. FortheearIyforrrmlafion,seePartTwo,ch- IX:6e.(R) 

17. For the early formulation, see Part Two, ch.X;2. (R) 



CHAPTER 



IV 



STATUS GROUPS 
AND CLASSES' 



i . Class Situation and Class Types 

i 

"Class situation" means the typical probability of 
i. procuring goods 

2. gaining a position in life and 

3. finding inner satisfactions, 

a probability which derives from the relative control over goods and 
skills and from their income-producing uses within a given economic 
order. 

"Class" means all persons in the same class situation. 

a) A "property class" is primarily determined by property differences, 

b) A "commercial class" by the marketability of goods and services, 

c) A "social class" makes up the totality of those class situations 
within which individual and generational mobility is easy and typical. 

Associations of class members — class organizations — may arise on the 
basis of all three types of classes. However, this does net necessarily hap- 
pen: "Class situation" and "class" refer only to the same (or similar) 
interests which an individual shares with others. In principle, the various 
controls over consumer goods, means of production, assets, resources and 
skills each constitute a -particular class situation. A uniform class situation 
prevails only when completely unskilled and propertyless persons are 
dependent on irregular employment. Mobility among, and stability of, 
class positions differs gready; hence, the unity of a social class is highly 
variable. ^ 

I502.] 



2 ] _ Property Classes . 303 

2. Property Classes 

The primary significance of "a positively privileged property class lies 



in 



<0 its exclusive acquisition of high-priced consumers goods, 

jS) its sales monopoly and its ability to pursue systematic policies in 
this regard, 

y) its monopolization of wealth accumulation out of unconsumed 
surpluses, 

8) its monopolization of capital formation out of savings, i.e., of the 
utilization of wealth in the form of loan capital, and its resulting control 
over executive positions in business, 

its monopolization of cosdy (educational) status privileges. 

I. Positively privileged property classes are typically rentiers, receiv- 
ing income from: 

a) men (the case of slave-owners), 

b) land, 

c) mines, 

d) installations (factories and equipment), 

e) ships, 

f) creditors (of livestock, grain or money), 

g) securities. 

II. Negatively privileged property classes are typically 

a) the unfree (see under "Status Group"), 

b) the declassed (the proletarii of Antiquity), c) debtors, 
d) the "paupers". 

In between are the various "middle classes" QMhielstandsldassen), 
which make a living from their property or their acquired skills. Some 
of them may be "commercial classes" (entrepreneurs with mainly posi- 
tive privileges, proletarians with negative ones). However, not all of 
them fall into the latter category (witness peasants, craftsmen, officials). 

The mere differentiation of property classes is not "dynamic," that 
is, it need not result in class struggles and revolutions. The strongly 
privileged class of slave owners may coexist with the much less privileged 
peasants or even the declassed, frequently without any-class antagonism 
and sometimes in solidarity (against the unfree). However, the juxta- 
position of property classes may lead to revolutionary conflict between 

1 . land owners and the declassed or 

2. creditor and debtors (often urban patricians versus rural peasants 
or small urban craftsmen). 

These struggles need not focus on a change of the economic system, 



3 ° 4 - STATUS GROUPS AND CLASSES [ Ch. IV 

but may aim primarily at a redistribution of wealth. In this case we can 
speak of "property revolutions" (ftesitzklassenrevohttionen). 

A classic example of the lack of class conflict was the relationship of 
the "poor white trash" to the plantation owners in the Southern States. 
The "poor white trash" were far more an ti- Negro than the plantation 
owners, who were often imbued with patriarchal sentiments. The major 
examples for the struggle of the declassed against the propertied date 
back to Antiquity, as does the antagonism between creditors and debtors 
and land owners and the declassed. 



3 . Commercial Classes 

The primary significance of a positively privileged commercial class 
lies in 

o) the monopolization of entrepreneurial management for the sake 
of its members and their business interests, 

P) the safeguarding of those interests through influence on the 
economic policy of the political and other organizations. 

I. Positively privileged commercial classes are typically zntreyre- 
neurs : 

a) merchants, 

b) shipowners, 

c) industrial and 

d) agricultural entrepreneurs, 

e) bankers and financiers, sometimes also 

f) professionals with sought-after expertise or privileged educa- 
tion (such as lawyers, physicians, artists), or 

g) workers with monopolistic qualifications and skills (natural, 
or acquired through drill or training). 

II. Negatively privileged commercial classes are typically laborers 
with varying qualifications: 

a) skilled 

b) semi-skilled 
' c) unskilled. 

. In between again are "middle classes": the self-employed farmers 
and craftsmen and frequently: 

a) public and private officials. 
s b) the last two groups mentioned in the first category (i.e., the "lib- 
eral professions" and the labor groups with exceptional qualifications]. 



4 ] Social Classes 3 o 5 

4. Social Classes 

Social classes are 

a) the working class as a whole— the more so, the more automated 
the work process becomes, 

b) the petty bourgeoisie, 

c) the propertyless intelligentsia and specialists (technicians, various 
kinds of white-collar employees, civil servants — possibly with consider- 
able social differences depending on the cost of their training), 

d) the classes privileged through property and education. 

The unfinished last part of Karl Marx's Capital apparently was 
intended to deal with the issue of ciass unity in the face of skill dif- 
ferentials. Crucial for this differentiation is the increasing importance of 
semi-skilled workers, who can be trained on the job in a relatively short 
time, over the apprenticed and sometimes also the unskilled workers. 
Semi-skilled qualification too can often become monopolistic (weavers, 
t for example, sometimes achieve their greatest efficiency after five years). 
It used to be that every worker aspired to be a self-employed small busi- 
nessman. However, this is less and less feasible. In the generational 
sequence, the rise of groups a) and b) into c) (technicians, white-collar 
workers) is relatively the easiest. Within class d) money increasingly 
buys everything, at least in the sequence of generations. In banks and 
corporations, as well as in the higher ranks of the civil service, class c) 
members have a chance to move up into class d). 

Class-conscious organization succeeds most easily 

a) against the immediate economic opponents (workers against 
entrepreneurs, but not agaimt stockholders, who truly draw "unearned" 
incomes, and also not in the case of peasants confronting manorial lords); 

b) if large numbers of persons are in the same class situation, 

c) if it is technically easy to organize them, especially if they are 
concentrated at their place of work (as in a "workshop community"). 

d) if they are led toward readily understood goals, which are im- 
posed and interpreted by men outside their class (intelligentsia). 



5. Status and Status Group (Stand) 

"Status" (standische Lage) shall mean an effective claim to social 
esteem in terms of positive or negative privileges; it is typically founded 
on 

a) style of life, hence 

b) formal education, which may be 



3 O 6 STATUS GROUPS AND CLASSES [ Ck. W 

a) empirical training or 

(S~) rational instruction, and the corresponding Forms of behavior, 
c) hereditary or occupational prestige. 
In practice, status expresses itself through 

<0 connubium, 

£) commensahty, possibly 

y) monopolistic appropriation of privileged modes of acquisition 
or the abhorrence of certain kinds of acquisition, 

S) status conventions (traditions) of other kinds. 
Status may rest on class position of a distinct or an ambiguous kind. 
However, it is not solely determined by it: Money and an entrepreneur- 
ial position are not- in themselves status qualifications, although they 
may lead to them; and the lack of property is not in itself a status dis- 
qualification, although this may be a reason for it. Conversely, status may 
influence, if not completely determine, a class position without being 
identical with it. The class position of an officer, a civil servant or a 
student may vary greatly according to their wealth and yet not lead to a 
different status since upbringing and education create a common style of 
life. 

A "status group" means a plurality of persons who, within a larger 
group, successfully claim 

a) a special social esteem, and possibly also 

b) status monopolies. 

Status groups may come into being: 

a) in the first instance, by virtue of their own style of life, par- 
ticularly the type of vocation: "self-styled" or occupational status 
groups, 

b) in the second instance, through hereditary charisma, by virtue 
of successful claims to higher-ranking descent: hereditary status 
groups, or 

c) through monopolistic appropriation of political or hierocratic 
powers: political or hierocratic status groups. 

The development of hereditary status groups is generally a form of 
the (hereditary) appropriation of privileges by an organization or quali- 
8ed individuals. Every definite appropriation of political powers and 
the corresponding economic opportunities tends to result in the rise of 
status groups, and vice-versa. 

Commercial classes arise in a market-oriented economy, but status 
groups arise within the framework of organizations which satisfy their 
wants through monopolistic liturgies, or in feudal or in stancUsch- 
patrimonial fashion. Depending on the prevailing mode of stratification, 
we shall speak of a "status society" or a "class society." The status group 



5 ] Status and Status Grouv (Stand) 3 ° 7 

comes closest to the social class and is most unlike the commercial class. 
Status groups are often created by property classes. 

Every status society lives by conventions, which regulate the style 
of life, and hence creates economically irrational consumption patterns 
and fetters the free market through monopolistic appropriations and by 
curbing the individual's earning power. More on that separately. 



NOTES 
i. For the early formulation of class and status, see Part Two, ch. DC:6. (R) 



PART I^YQ 

The Economy and the Arena of 
Normative and De Facto Powers 



CHAPTER 



I 



THE ECONOMY AND 
SOCIAL NORMS 



i • Legal Order and Economic Order 

a. the sociological concept of law. When we speak of "law," 
"legal order," or "legal proposition" (Rechtssatz), close attention must 
be paid to the distinction between the legal and the sociological points 
of view. Taking the former, we ask: What is intrinsically valid as law? 
That is to say; What significance or, in other words, what normative 
meaning ought to be attributed in correct logic to a verbal pattern hav- 
ing the form of a legal proposition. But if we take the latter point of 
view, we ask: What actually happens in a group owing to the probability 
that persons engaged in social action (.Gemeinschaftshandeln*), especially 
those exerting a socially relevant amount of power, subjectively consider 
certain norms as valid and practically act according to them, in other 
words, orient their own conduct towards these norms? This distinction 
also determines, in principle, the relationship between law and economy. 

The juridical point* of view, or, more precisely, that of legal dogmatics 1 
aims at the correct meaning of propositions the content of which consti- 
tutes an order supposedly determinative for the conduct of a denned 
group of persons: in other words, it tries to define the facts to which this 
order applies and the way in which it bears upon them. Toward this end, 
the jurist, taking for granted the empirical validity of the legal proposi- 
tions, examines each of them and tries to determine its logically correct 
meaning in such a way that all of them can be combined in a system 
which is logically coherent, i.e., free from internal contradictions. This 
system is the "legal order" in the juridical sense of the word. 

Sociological economics {$oztal&kono7nie~), on the other hand, con- 

[311] 






3 12 THE ECONOMY AND SOCIAL NORMS [ Ch. I 

siders actual human activities as they are conditioned by the necessity to 
take into acount the facts of economic life. We shall apply the term eco- 
nomic order to the distribution of the actual control over goods and 
services, the distribution arising in each case from the particular mode 
of balancing interests consensually; moreover, the term shall apply to the 
manner in which goods and services are indeed used by virtue of these 
powers of disposition, which are based on de facto recognition (Einver- 
standnis). 

It is obvious that these two approaches deal with entirely different 
problems and that their subjects cannot come directly into contact with 
one another. The ideal "legal order" of legal theory has nothing directly 
to do with the world of real economic conduct, since both exist on dif- 
ferent levels. One exists in the realm of the "ought," while the other 
deals with the world of the "is." If it is nevertheless said that the eco- 
nomic and the legal order are intimately related' to one another, the 
latter is understood, not in the legal, but in the sociological sense, i.e., as 
being empirically valid. In this context "legal order" thus assumes a 
totally different meaning. It refers not to a set of norms of logically 
demonstrable correctness, but rather to a complex of actual determinants 
CBesttntmungsgriinde') of human conduct. This point requires further 
elaboration. 

The fact that some persons act in a certain way because they regard 
it as prescribed by legal propositions (J{echtssatze~) is, of course, an 
essential element in the actual emergence and continued operation of a 
"legal order." But, as we have seen already in discussing the significance 
of the "existence" of rational norms,* it is by no means necessary that all, ' 
or even a majority, of those who engage in such conduct, do so from this 
motivation. As a matter of fact, such a situation has never occurred. The 
broad mass of the participants act in a way corresponding to legal norms, 
not out of obedience regarded as a legal obligation, but either because the 
environment approves of the conduct and disapproves of its opposite, or 
merely as a result of unreflective habituation to a regularity of life that 
has engraved itself as a custom. If the latter attitude were universal, the 
law. would no longer "subjectively" be regarded as such, but would be 
observed as custom. As long as there is a chance that a coercive apparatus 
Will enforce, in a given situation, compliance with those norms, we 
nevertheless must consider them as "law." Neither is it necessary — 
according to what was said above — that all those who share a belief in 
certain norms of behavior, actually live in accordance with that belief 
at all times. Such a situation, likewise, has never obtained, nor need it 
obtain, since, according to our general definition, it is the "orientation" 
of an action toward a norm, rather than the "success" of that norm that 



i ] Legal Order and Economic Order 3 1 3 

is decisive for its validity, "Law," as understood by us, is simply an "order" 
endowed with certain specific guarantees of the probability of its em- 
pirical validity. 

The term "guaranteed law" shall be understood to mean that there 
exists a "coercive apparatus" (in the sense defined earlier), 3 that is, that 
there are one or more persons whose special task it is to hold themselves 
ready to apply specially provided means of coercion (legal coercion) for 
the purpose of norm enforcement. The means of coercion may be phys- 
ical or psychological, they may be direct or indirect in their operation, and 
they may be directed, as the case may require, against the participants 
in the consensual group (Einverstandnisgemeinsckaft) or the association 
(Vergesellschaftung), the organization (Verhand) or the institution 
(AnstaW), within which the order is (empirically) valid; or they may 
be aimed at those outside. These means are the "legal regulations" of the 
group in question. 

By no means all norms which are consensually valid in a group — as 
we shall see later — are "legal norms." Nor are all official functions of the 
persons constituting the coercive apparatus of a community concerned 
with legal coercion; we shall rather consider as legal coercion only those 
actions whose intention is the enforcement of conformity to a norm as 
such, i.e., because of its being formally accepted as binding. The term will 
not be applied, however, where conformity of conduct to a norm 1 is sought 
because of considerations of expediency or other material circumstances. 
It is obvious that the effectuation of the validity of a norm may in fact 
be pursued for the most diverse motives. However, we shall designate 
it as "guaranteed law" only in those cases where there exists the proba- 
bility that coercion will be applied for the norm's sake. As we shall have 
opportunity to see, not all law is guaranteed law. We shall speak of 
law — albeit in the sense of "indirectly guaranteed" or "unguaranteed" 
law — also in all those cases where the validity of a norm consists in the 
fact that the mode of orientation of an action toward it has some "legal 
consequences"; i.e., that there are other norms which associate witlrthe 
"observance" or "infringement" of the primary norm certain probabilities 
of consensual action guaranteed, in their turn, by legal coercion. We shall 
have occasion to illustrate this case which occurs in a large area of legal 
life. However, in order to avoid further complication, whenever we shall 
use the term "law" without qualification, we shall mean norms which are 
directly guaranteed by legal coercion. 

Such "guaranteed law" is by no means in all cases guaranteed by 
"violence" (Gewali) in the sense of the prospect of physical coercion. 
In our terminology, law, including "guaranteed law" is not characterized 
by violence or, even less, by that modem technique of effectuating claims 



J 



3 I 4 THE ECONOMY AND SOCIAL NORMS [ Ck. I { 

of private law through bringing "suit" in a "court," followed by coercive 
execution of the judgment obtained. The sphere of "public" law, i.e. t the 
norms governing the conduct of the organs of the state and other state- 
oriented activities, recognizes numerous rights and legal norms, upon the 
infringement of which a coercive apparatus can be set in motion only 
through "complaint" or through "remonstance" by members of a limited 
group of persons, and often without any means of physical coercion. 
Sociologically, the question of whether or not guaranteed law exists in 
such a situation depends on the availability of an organized coercive 
apparatus for the nonviolent exercise of legal coercion. This apparatus 
must also possess such power that there is in fact a significant probability , 
that the norm will be respected because of the possibility of redSbrse to 
such legal coercion. 

Today legal coercion by violence is the monopoly of the state. All 
other groups applying legal coercion by violence are today considered 
as heteronomous and mostly also as heterocephalous. This is the outcome, 
however, of certain stages of development. We shall speak of "state" 
law, i.e., of law guaranteed by the state, only when legal coercion is 
exercised through the specific, i.e., normally direcdy yhysiad, means of 
coercion of the political community. Thus, the existence of a "legal norm" 
in the sense of "state law" means that the following situation obtains: 
In the case of certain events occurring there is general agreement that 
certain organs of the community can be expected to go into official action, 
and the very expectation of such action is apt to induce conformity with 
the commands derived from the generally accepted interpretation of that, 
legal norm; or, where such conformity has become unattainable, at least 
to effect reparation or indemnification. The event inducing this conse- 
quence, the legal coercion by the state, may consist in certain human 
acts, for instance, the conclusion or the breach of a contract, or the com- 
mission of a tort. But this type of occurence constitutes only a special 
instance, since, upon the basis of some empirically valid legal proposi- 
tion, the coercive instruments of the political powers against persons and 
things may also be applied where, for example, a river has risen above 
a certain level. It is in no way inherent, however, in the validity of a 
legal norm as normally conceived, that those who obey do so, predomi- 
nandy or in any way, because of the availtbility of such a coercive appara- 
tus as defined above. The motives for obedience may rather be of many 
different kinds. In the majority of cases, they are predominandy utilitarian 
or ethical or subjectively conventional, i.e., consisting of the fear of dis- 
approval by the environment. The nature of these motives is highly 
relevant in determining the kind and the degree of validity of the law 
itself. But in so far as the formal sociological concept of ^guaranteed law, 



i ] Legal Order and Economic Order 3 i 5 

as we intend to use it, is concerned, these psychological facts are irrele- 
vant. In this connection nothing matters except that there be a suffi- 
ciently high probability of intervention on the part of a specially desig- 
nated group of persons, even in those cases where nothing has occurred 
but the sheer fact of a norm infringement, i.e., on purely formal grounds. 

The empirical validity of a norm as a legal norm affects the interests 
of an individual in many respects. In particular, it may convey to an 
individual certain calculable chances of having eonomic goods available 
or of acquiring them under certain conditions in the future. Obviously, 
the creation or protection of such chances is normally one of the aims of 
law enactment by those who agree upon a norm or impose it upon others. 
There are two ways in which such a "chance" may be attributed. The 
attribution may be a mere by-product of the empirical validity of the 
norm; in that case the norm is not meant to guarantee to an- individual 
the chance which happens to fall to him. It may also be, however, that 
the norm is specifically meant to provide to the individual such a guar- 
anty, in other words, to grant him a "right." Sociologically, the statement 
that someone has a right by virtue of the legal order of the state thus 
normally means the following: He has a chance, factually guaranteed to 
him by the consensually accepted interpretation of a legal norm, of in- 
voking in favor of his ideal or material interests the aid of a "coercive 
apparatus" which is in special readiness for this purpose. This aid 
consists, at least normally, in the readiness of certain persons to come to 
his support in the event that they are approached in the proper way, 
and that it is shown that the recourse to such aid is actually guaranteed 
to him by a "legal norm." Such guaranty is based simply upon the 
"validity" of the legal proposition, and does not depend upon questions 
of expediency, discretion, grace, or arbitrary pleasure. 

A law, thus, is valid wherever legal help in this sense can be obtained 
in a relevant measure, even though without recourse to physical or 
other drastic coercive means. A law can also be said to be valid, viz., 
in the case of unguaranteed law, if its violation, as, for instance, that 
of an electoral law, induces, on the ground of some empirically valid 
norm, legal consequences, for instance, the invalidation of the election, 
for the execution of which an agency with coercive powers has been 
established. 

For purposes of simplification we shall pass by those "chances" which 
are produced as mere "by-products." A "right," in the context of the 
"state," is guaranteed by the coercive power of the political authorities. 
Wherever the means of coercion which constitute the guaranty of a 
"right" belong to some authority other than the political, for instance, a 
hierocracy, we shall speak of "extra-state law." 



3 I 6 THE ECONOMY AND SOCIAL NORMS [ Ck. I 

b. state law and extra-state law. A discussion of the various 
categories of such extra-state law would be out of place in the present 
context. All we need to recall is that there exist nonviolent means of co- 
ercion which may have the same or, under certain conditions, even 
greater effectiveness than the violent ones. Frequently, and in fairly large 
areas even regularly, the threat of such measures as the exclusion from 
an organization, or a boycott, or the prospect of magically conditioned 
advantages or disadvantages in this world, or of reward and punishment 
in the next, are under certain cultural conditions more effective in pro- 
ducing a certain behavior than a political apparatus whose coercive func- 
tioning is not always predictable with certainty. Legal forcible coercion 
exercised by the coercive apparatus of the political community has often 
come off badly as compared with the coercive power of other, e.g., reli- 
gious, authorities. In general, the actual scope of its efficiency depends 
on the circumstances of each concrete case. Within the realm of sociolog- 
ical reality, legal coercion continues to exist, however, as long as some 
socially relevant effects are produced by its power machinery. 

The assumption that a state "exists" only if the coercive means of 
the political community are superior to all other communities, is not 
sociological. "Ecclesiastical law" is still law even where it comes into 
conflict with "state" law, as it has happened many times and as it is 
bound to happen again in the case of the relations between the modern 
state and certain churches, for instance, the Roman-Catholic. In imperial 
Austria, the Slavic Zadruga not only lacked any kind of legal guaranty fay 
the state, but some of its norms were outright contradictory to the official 
law. Since the consensual action constituting a Zadruga has at its disposal* 
its own coercive apparatus for the enforcement of its norms, these norms 
are to be considered as "law." Only the state, if invoked, would refuse 
recognition and proceed, through its coercive power, to break it up. 

Outside the sphere of the European-Continental legal system, it is 
no rare occurrence at all that modern state law explicitly treats as "valid" 
the norms of other organizations and reviews their concrete decisions. 
American law thus protects labor union labels or regulates the conditions 
under which a candidate is to be regarded as validly nominated by a 
party. English judges intervene, on appeal, in the judicial proceedings 
of a club. Even on the Continent German judges investigate, in defama- 
tion cases, the propriety of the rejection of a challenge to a duel, even 
though duelling is forbidden by law. We shall not enter into a casuistic 
inquiry of the extent to which such norms thus become "state law" For 
all the reasons given above and, in particular, for the sake of terminolog- 
ical consistency, we categorically deny that "law" exists only where legal 
coercion is guaranteed by the political authority. For us, there is no 



i ] _ Legal Order and Economic Order 3 1 7 

practical reason for such a terminology. A "legal order" shall rather be 
said to exist wherever coercive means, of a physical or psychological kind, 
are available; i.e., wherever they are at the disposal of one or more per- 
sons who hold themselves ready to use^hem for this purpose in the case 
of certain events; in other words, wherever we find a consociation specifi- 
cally dedicated to the purpose of "legal coercion." The possession of such 
an apparatus for the exercise of physical coercion has not always been 
the monopoly of the political community. As far as psychological coercion 
is concerned, there is no such monopoly even today, as demonstrated by 
the importance of law guaranteed only by the church. 

We have also indicated already that direct guaranty of law and of 
rights by a coercive apparatus constitutes only one instance of the exist- 
ence of "law" and of "rights." Even within this iimited sphere the coer- 
cive apparatus can take on a great variety of forms. In marginal cases, 
it may consist in the consensually valid chance of coercive intervention 
by all the members of the community in the event of an infringement of 
a , valid norm. However, in that case one cannot properly speak of a 
"coercive apparatus" unless the conditions under which participation 
in such coercive intervention is to be obligatory, are firmly fixed. In 
those cases where the protection of rights is guaranteed by the organs 
of the political authority, the coercive apparatus may be reinforced by 
pressure groups: the strict regulations of associations of creditors and 
landlords, especially their blacklists of unreliable debtors or tenants, 
often operate more effectively than the prospect of a lawsuit. It goes 
without saying that this kind of coercion may be extended to claims 
which the state does not guarantee at all; such claims are nevertheless 
based on rights even though they are guaranteed by authorities other 
than the state. The law of the state often tries to obstruct the coercive 
means of other associations; the English Libel Act thus tries to preclude 
blacklisting by excluding the defense of truth. But the state is not always 
successful. There are groups stronger than the state in this respect, for 
instance, those status groups which rely on the "honor code" of the duel 
as the means of resolving conflicts. With courts of honor and boycott as 
the coercive means at their disposal, they usually succeed in compelling 
the fulfillment of obligations as "debts of honor," for instance, gambling 
debts or the duty to engage in a duel; such debts are intrinsically con- 
nected with the specific purposes of the group in question, but, as far 
as the state is concerned, they are not recognized, or are even proscribed. 
But the state has been forced, as least partially, to trim its sails. 

It would indeed be distorted legal reasoning to demand that such a 
specific delict as duelling be punished as "attempted murder" or assault 
and battery. Those crimes are of a quite different character. But it re- 



3 1 8 THE ECONOMY AND SOCIAL NORMS [ Ch, I 

mains a fact that in Germany the readiness to participate in a duel is still 
a legal obligation imposed by the state upon its army officers even though 
the duel is expressly forbidden by the Criminal Code. The state itself 
has connected legal consequences with an officer's failure to comply with 
the honor code. Outside of the status group of army officers the situation 
is different, however. The typical means of statutory coercion applied by 
"private" organizations against refractory members is exclusion from 
the corporate body and its tangible or intangible advantages. In the pro- 
fessional organizations of physicians and lawyers as well as in social or 
political clubs, it is the ultima ratio. The modern political organization 
has to a large extent usurped the application of these measures of coer- 
cion. Thus, recourse to them has been denied to the physicians and 
lawyers in Germany; in England the state courts have been given juris- 
diction to review, on appeal, exclusions from clubs; and in America the 
courts have power over political parties as well as the right of reviewing, 
on appeal, the legality of the use of a union label. 

This conflict between the means of coercion of various organizations 
is as old as the law itself. In the past it has not always ended with the 
triumph of the coercive means of the political body, and even today this 
has not always been the outcome. A businessman, for instance, who has 
violated a cartel agreement, has no remedy against a systematic attempt 
to drive him out of business by underselling. Similarly, there is no pro- 
tection against being bIacklisted / for having availed oneself of the plea 
of illegality of a contract in futures. In the Middle Ages the prohibitions 
of resorting to the ecclesiastical court contained in the statutes of certain' 
merchants' guilds were clearly invalid from the point of view of canon 
law, but they persisted nonetheless. 4 

To a considerable extent the state must tolerate the coercive power 
of organizations even in cases where it is directed not only against mem- 
bers, but also against outsiders on whom die organization tries to impose 
its own norms. Illustrations are afforded by the efforts of cartels to force 
outsiders into membership, or by the measures taken by creditors' associa- 
tions against debtors and tenants. 

An important marginal case of coercively guaranteed law, in the socio- 
logical sense, is presented by that situation which may be regarded as 
the very opposite of that which is presented by the modern political 
communities as well as by those religious communities which apply their 
own "laws." In the modern communities the law is guaranteed by a 
"judge" or some other "organ" who is an impartial and disinterested 
umpire rather than a person who would be characterized by a special 
relationship with one or the other of the parties. In the situation which 
we have in mind the means of coercion are provided by those -very per- 



I ^ Legal Order and Economic Order 319 

, JOfis wfio are linked to the party by close personal relationship, "for ex- 
ample, as members of his kinship group. Just as war under modem in- 
ternational law, so under these conditions "vengeance" and "feud" are 
the only, or at least, the normal, forms of law enforcement. In this case, 
the "right" of the individual consists, sociologically seen, in the mere 
probability that the members of his kinship group will respond to their 
obligation of supporting his feud and blood vengeance (an obligation 
originally guaranteed by fear of the wrath of supernatural authorities) 
and that they will possess strength sufficient to support the right claimed 
by him even though not necessarily to achieve its final triumph. 

The term "legal relationship" will be applied to designate that situa- 
tion in which the content of a right is constituted by a relationship, i.e., 
the actual or potential actions of concrete persons or of persons to be 
identified by concrete criteria. The rights contained in a legal relation- 
ship may vary in accordance with the actually occurring actions. In this 
sense a state can be designated as a legal relationship, even in the 
hypothetical marginal case in which the ruler alone is regarded as en- 
dowed with rights (the right to give orders) and where, accordingly, the 
opportunities of all the other individuals are reduced to reflexes of his 
regulations. 



2. Law, Convention, and Custom 1 

A. SIGNIFICANCE OF CUSTOM IN THE FORMATION *OF LAW. Law, 

convention, and custom belong to the same continuum with imperceptible 
transitions leading from one to the other. We shall define custom (Sitte) 
to mean a typically uniform activity which is kept on the beaten track 
simply because men are "accustomed" to it and persist in it by unreflec- 
tive imitation. It is a collective way of acting (Massenhandeln), the 
perpetuation of which by the individual is not "required" in any sense 
by anyone. 

Convention, on the other hand, shall be said to exist wherever a 
certain conduct is sought to be induced without, however, any coercion, 
physical or psychological, and, at least under normal circumstances, with- 
out any direct reaction other than the expression of approval or disap- 
proval on the part of those persons who constitute the environment of 
the actor. - 

"Convention" must be stricdy distinguished from customary law. We 
shall abstain here from criticizing this not very useful concept." Accord- 
ing to the usual terminology, the validity of a norm as customary law 
consists in the very likelihood that a coercive apparatus will go into action 



3 2 O THE ECONOMY AND SOCIAL NORMS [ Ch. I 

for its enforcement although it derives from mere consensus rather than 
from enactment. Convention, on the contrary, is characterized by the 
very absence of any coercive apparatus, i.e., of any, at least relatively 
clearly delimited, group of persons who would continuously hold them- 
selves ready for the special .task of legal coercion through physical or 
psychological means. 

The existence of a mere custom, even unaccompanied by convention, 
oan be of far-reaching economic sign i fiance. The level of economic need, 
which constitutes the basis of all "economic activity," is comprehensively 
conditioned by mere custom. The individual might free himself of it 
without arousing the slightest disapproval. In fact, however, he cannot 
escape from it except with the greatest difficulty, and it does not change 
except where it comes gradually to give way to the imitation of the dif- 
ferent custom of some other social group. 

We shall see' that the uniformity of mere usages can be of importance 
in the formation of social groups and in facilitating intermarriage. It 
may also give a certain, though rather intangible, impetus toward the for- 
mation of feelings of "ethnic" identification and, in that way, contribute 
to the creation of community. At any rate, adherence to what has as such 
become customary is such a strong component of all conduct and, conse- 
quently, of all social action, that legal coercion, where it transforms a 
custom into a legal obligation (by invocation of the "usual") often adds 
practically nothing to its effectiveness, and, where it opposes custom, 
frequently fails in the attempt to influence actual conduct. Convention 
is equally effective, if not even more. In countless situations the indi- 
vidual depends on his environment for a spontaneous response not 
guaranteed by any earthly or transcendental authority. The existence of 
a "convention" may thus be far more determinative of his conduct than 
the existence of legal enforcement machinery. 

Obviously, the borderline between custom and convention is fluid. 
The further we go back in history, the more we find that conduct, and 
particularly social action, is determined in an ever more comprehensive 
sphere exclusively by orientation to what is customary. The more this 
is so, the more disquieting are the effects of any deviation from the 
customary. In this situation, any such deviation seems to act on the 
psyche of the average individual like the disturbance of an organic func- 
tion. This, in turn, seems to reinforce custom. 

Present ethnological literature does not allow us to determine very 
clearly the point of transition from the stage of mere custom to the, at 
first vaguely and dimly experienced, "consensual" character of social 
action, or, in other words, to the conception of the binding nature of 
certain accustomed modes of conduct. Even less can we trace the changes 



2 ] Law, Convention, and Custom 3 2 1 

of the scope of activities with respect to which this transition took place. 
We shall thus by-pass this problem. It is entirely a question of termi- 
nology and convenience at which point of this continuum one shall 
assume the existence of the subjective conception of a ''legal obligation." 
Objectively the chance of the factual occurrence of a violent reaction 
against certain types of conduct has always been present among human 
beings as well as among animals. It would be far-fetched, however, to 
assume in every such case the existence of a consensually valid norm, or 
that the action in question would be directed by a clearly conceived 
conscious purpose. Perhaps, a rudimentary conception of "duty" may be 
determinative in the behavior of, some domestic animals to a greater 
extent than may be found in aboriginal man, if we may use this highly 
ambiguous concept in what is in this context a clearly intelligible sense. 
We have no access, however, to the "subjective" experiences of the first 
homo sapiens and such concepts as the allegedly primordial, or even 
a priori, character of law or convention are of no use whatsoever to em- 
pirical sociology. It is not due to the assumed binding force of some rule 
or norm that the conduct of primitive man manifests certain external 
factual regularities, especially in his relation to his fellows. On the con- 
trary, those organically conditioned regularities which we have to accept 
as psychophysical reality, are primary. It is from them that the concept 
of "natural norms" arises. The inner orientation towards such regularities 
contains in itself very tangible inhibitions against "innovations," a fact 
which can be observed even today by everyone in his daily experiences, 
and it constitutes a strong support for the belief in such binding norms. 

- B. CHANGE THROUGH INSPIRATION AND EMPATHY. In view of such 

observation we must ask how anything new can ever arise in this world, 
oriented as it is toward the regular as the empirically valid. No doubt 
innovations have been induced from the outside, i.e., by changes in the 
external conditions of life. But the response evoked by external change 
may be the extinction of life as well as its reorientation; there is no way 
' of foretelling. Furthermore, external change is by no means a necessary 
precondition for innovation: in some of the most significant cases, it has 
not even been a contributing factor in the establishment of a new order. 
The evidence of ethnology seems rather to show that the most important 
source of innovation has been the influence of individuals who have 
experienced certain "abnormal" states C which are frequently, but not 
always, regarded by present-day psychiatry as pathological) and hence 
have been capable of exercising a special influence on others. We are 
not discussing here the origin of these experiences which appear to be 
"new" as a consequence of their "abnormality," but rather their effects. 
These influences which overcome the inertia of the customary mav 



3 2 2 THE ECONOMY AND SOCIAL NORMS [ Ck. I i 

originate from a variety of psychological occurrences. To Hellpach* we 
owe the distinction between two categories which, despite the possibility 
of intermediate forms, nonetheless appear as polar types. The first, 
inspiration, consists in the sudden awakening, through drastic means, of 
the awareness that a certain action "ought" to be done by him who has 
this experience. In the other form, that of empathy or identification, the 
influencing person's attitude is emphathically experienced by one or more 
others. The types of action which are produced in these ways may vary 
gready. Very often, however, a collective action (jmassenhaftes Gemein- 
sckaftshandeln*) is induced which is oriented toward the influencing 
person and his experience and from which, in turn, certain kinds of 
consensus with corresponding contents may be developed. If they are 
"adapted" to the external environment, they will survive. The effects of 
"empathy" and, even more so, of "inspiration" (usually lumped together 
under the ambiguous term "suggestion") constitute the major sources for 
the realization of actual innovations whose establishment as regularities 
will, in turn, reinforce the sense of "oughtness," by which they may 
possibly be accompanied. The feeling of oughtness — as soon as it has 
developed any conceptual meaning — may undoubtedly appear as some- 
thing primary and original even in the case of innovation. Particularly 
in the case of "inspiration" it may constitute a psychological component. 
It is confusing, however, when imitation of new conduct is regarded as 
the basic and primary element in its diffusion. Undoubtedly, imitation 
is of extraordinary importance, but as a general rule it is secondary and 
constitutes only a special case. If the conduct of a dog, man's oldest 
companion, is "inspired" by man, such conduct, obviously, cannot be " 
described as "imitation of man by dog." In a very large number of cases, 
the relation between the persons influencing and those influenced is 
exacdy of this kind. In some cases, it may approximate "empathy," in 
others, "imitation," conditioned either by rational purpose or in the ways 
of "mass psychology." 

In any case, however, the emerging innovation is most likely to pro- 
duce consensus- and ultimately law, when it derives from a strong in- 
spiration or an intensive identification. In such cases a convention 
will result or, under certain circumstances, even consensual coercive 
action against deviants. As long as religious faith is strong, convention, 
the approval or disapproval by the environment, engenders, as historical 
experience shows, the hope and faith that the supernatural powers too 
will reward or punish those actions, which are approved or disapproved 
in this world. Convention, under appropriate conditions, may also pro- 
duce the further belief that not only the actor himself but also those 
around him may have to suffer from the wrath of those supernatural 



2 ] Law, Convention, and Custom 323 

powers, and that, therefore, reaction is incumbent upon all, acting either 
individually or through the coercive apparatus of some organization. In 
consequence of the constant recurrence of a certain pattern of conduct, 
the idea may arise in the minds of the guarantors of a particular norm, 
that they are confronted no longer with mere custom or convention, but 
with a legal obligation requiring enforcement. A norm which has at- 
tained such practical validity is called customary law. Eventually, the 
interests involved may engender a rationally considered desire to secure 
the convention, or the obligation of customary law, against subversion, 
and to place it explicitly under the guarantee of an enforcement ma- 
chinery, i.e., to transform it into enacted law. Particularly in the field 
of the internal distribution of power among the organs of an institutional 
order experience reveals a continuous scale of transitions from norms of 
conduct guaranteed by mere convention to those which are regarded as 
binding and guaranteed by law. A striking example is presented by the 
development of the British "constitution." 

C. BORDERLINE ZONES BETWEEN CONVENTION, CUSTOM AND LAW. 

Finally, any rebellion against convention may lead the environment to 
make use of its coercively guaranteed rights in a manner detrimental 
to the rebel; for instance, the host uses his right as master of the house 
against the guest who has merely infringed upon the conventional rules 
of social amenity; or a war lord uses his legal power of dismissal against 
the officer who has infringed upon the code of honor. In such cases the . 
conventional rule is, in fact, indirectly supported by coercive means. 
The situation differs from that of "unguaranteed" law insofar as the 
initiation of the coercive measures is a factual, but not a legal, conse- 
quence of the infringement of the convention, although the legal right 
to exclude anyone from his house belongs to the master as such. But a 
directly unguaranteed legal proposition draws its validity from the fact 
that its violation engenders consequences somehow via a guaranteed legal 
norm. Where, on the other hand, a legal norm refers to "good morals" 
(die guten Sittew), 8 i.e., conventions worthy of approval, the fulfillment 
of the conventional obligations has also become a legal obligation and we 
have a case of indirectly guaranteed law. 

There are also numerous instances of intermediate types, as, for 
example, the courts of love of the Troubadours of PrOvence which had 
"jurisdiction" in matters of love; 10 or the "judge" in his original role as 
arbitrator seeking to procure a settlement between feuding antagonists, 
perhaps also rendering a verdict, but lacking coercive powers of his own; 
or, finally, modern international courts of arbitration. In such cases, the 
amorphous approval or disapproval of the environment has crystallized 
into a set of commands, prohibitions, and permissions authoritatively 



3^4 ™ E ECONOMY- AND SOCIAL NORMS [ Ch. 1 

promulgated, i.e. f a concretely organized pattern of psychic coercion. 
Excepting situations of mere play, as, for instance, the courts of love, 
such cases may be classified as "law" provided the judgment is normally 
backed not only by the personal, and therefore irrelevant, opinion of the 
judge, but by, at least, some boycott as self-help of the kinship group, 
the state, or some other group of persons whose right has been violated, 
as in the last two of the illustrations above. 

According to our definition, the fact that some type of conduct is 
"approved" or "disapproved" by ever so many persons is insufficient to 
constitute it as a "convention"; it is essential that such attitudes are likely 
to find expression in a specific environment. This latter term is, of course, - 
not meant in any geographical sense. But there must be some test for 
defining that group of persons which constitutes the environment of the 
person in question. It does not matter in this context whether the test 
is constituted by profession, kinship, neighborhood, status, group, ethnic 
group, religion, political allegiance, or anything else. Nor does it matter 
that the membership is changeable or unstable. For the existence of a 
convention in our sense it is not required that the environment be con- 
stituted by an organization (as we understand that term). The very 
opposite is frequently the case. But the validity of law, presupposing, as 
we have seen, the existence of an enforcement machinery, is necessarily 
a corollary of organizational action. (Of course, this does not mean that 
only organizational action — or even mere social action — is legally regu- 
lated by organization.) In this sense the organization may be said to be 
the "sustainer" of the law. 

On the other hand, we are far from asserting that legal rules, in the 
sense here used, would offer the only standard of subjective orientation * 
for social, consensual, rationally controlled, organizational or institutional , 
action, which, we must remember, is nothing but a segment of sociologi- 
cally relevant conduct in general. If the order of an organization is under- 
stood to be characteristic of, or indispensable to, the actual course of 
social action, then this order is only to a small extent the result of an 
orientation toward legal rules. To the extent that the regularities are 
consciously oriented towards rules at all and do not merely spring from 
unreflective habituation, they are of the nature of "custom" and "con- 
vention"; often they are predominantly rational maxims of purposeful 
self-interested action, on the effective operation of which each participant 
is counting for his own conduct as well as that of all others. This expecta- 
tion is, indeed, justified objectively, especially since the maxim, though 
lacking legal guaranties, often constitutes the subject matter of some as- 
sociation or consensus. The chance of legal coercion which, as already 
mentioned, motivates even "legal" conduct only to a slight extent, is also 



2 ] Law, Convention, and Custom ■ 3 2 5 

objectively an ultimate guaranty for no more than a fraction of the actual 
course of consensually oriented conduct. 

■It should thus be clear that, from the point of view of sociology, the 
transitions from mere usage to convention and from it to law are fluid. 



3. Excursus in Response to Rudolf Stammler 

Even from a non-sociological point of view it is wrong to distinguish 
between law and ethics by asserting that legal norms regulate mere ex- 
ternal conduct, while moral norms regulate only matters of conscience. 
The law, it is true, does not always regard the intention of an action as 
relevant, and there have been legal propositions and legal systems in 
which legal consequences, including even punishment, are merely deter- 
mined by external events. But this situation is not the normal one. Legal 
consequences attach to bona or mala fides, or intention, or moral turpi- 
tude, and a good many other purely subjective factors. Moral command- 
ments, on the other hand, are aiming at overcoming in external conduct 
those anti-normative impulses which form part of the "mental attitude." 

From the normative point of view we should thus distinguish be- 
tween the two phenomena not as external and subjective, but as repre- 
senting different degrees of normativeness. 

From .the sociological point of view, however, ethical validity is 
normally identical with validity "on religious grounds" or "by virtue of 
convention." Only an abstract standard of conduct subjectively conceived 
as derived from ultimate axioms could be regarded as an exclusively 
ethical norm, and this only in so far as this conception would acquire 
practical significance in conduct. Such conceptions have in fact often 
had real significance. But wherever this has been the case, they have 
been a relatively late product of philosophical reflection. In the past, as 
well as in the present, "moral commandments" in contrast to legal com- 
mands are, from a sociological point of view, normally either reli- 
giously or conventionally conditioned maxims of conduct. They are not 
distinguished from law by hard and fast criteria. There is no socially 
important moral commandment which has not been a legal command 
at one time or another. 

Stammler's distinction between convention and legal norm according 
to whether or not the fulfillment of the norm is dependent upon the free 
will of the individual 11 is of no use whatsoever. It is incorrect to say that 
the fulfillment of conventional "obligations," for instance of a rule of 
social etiquette, is not "imposed" on the individual, and that its non- 



326 THE ECONOMY AND SOCIAL NORMS [ Ck, I 

fulfillment would simply result in, or coincide with, the free and volun- 
tary separation from a voluntary consociation. It may be admitted that 
there are norms of this kind, but they exist not only in the sphere of 
convention, but equally in that of law. The clausula rebus sic stantibus 
in fact often lends itself to such use. At any rate, the distinction between 
conventional rule and legal norm in Sta'mmler's own sociology is not 
centered on this test. Not only the theoretically constructed anarchical 
society, the "theory" and "critique" of which Stammler has elaborated 
with the aid of his scholastic concepts, but also a good number of con- 
sociations existing in the real world have dispensed with the legal char- 
acter of their conventional norms. They have done so on the assumption 
that the mere fact of the social disapproval of norm infringement with 
its, often very real, indirect consequences will suffice as a sanction. From 
the sociological point of view, legal order and conventional order do thus 
not constitute any baste contrast, since, quite apart from obvious cases 
of transition, convention, too, is sustained by psychological as well as 
(at least indirecdy) physical coercion. It is only with regard to the 
sociological structure of coercion that they differ: The conventional order 
lacks specialized personnel for the implementation of coercive power 
(enforcement machinery: priests, judges, police, the military, etc.). 

Above all, Stammler confuses the ideal validity of a norm with the 
assumed validity of a norm in its actual influence on empirical action. 
The former can be deduced systematically by legal theorists and moral 
philosophers; the latter, instead, ought to he the subject of empirical 
observation. Furthermore, Stammler confuses the normative regulation 
of conduct by rules whose "oughtness" is factually accepted by a sizable 
number of persons, with the factual regularities of human conduct. 
These two concepts are to be strictly separated, however. 

It is by way of conventional rules that merely factual regularities of 
action, i.e., usages, are frequendy transformed into binding norms, guar- 
anteed primarily by psychological coercion. Convention thus makes tra- 
dition. The mere fact of the regular recurrence of certain events some- 
how confers on them the dignity of oughtness. This is true with regard 
to natural events as well as to action conditioned organically or by un- 
reflective imitation of, or adaptation to, external conditions of life. It 
applies to the accustomed course of the stars as ordained by the divine 
powers, as well as to the seasonal floods of the Nile or the accustomed 
way of remunerating slave laborers, who by the law are unconditionally 
surrendered to the power of their masters. 

Whenever the regularities of action have become conventionalized, 
i.e., whenever a statistically frequent action (Massenhandeln) has be- 
come a consensually oriented action (JLinverstandnishancLeln) — this is, in 



3 ] Excursus in Response to Rudolf Stammler 327 

our terminology, the real meaning of this development — we shall speak 
of "tradition." 

It cannot be overstressed that the mere habituation to a mode of ac- 
tion, the inclination to preserve this habituation, and, much more so, 
tradition, have a formidable influence in favor of a habituated legal order, 
even where such an order originally derives from legal enactment. This 
influence is more powerful than any reflection on impending means of 
coercion or other consequences, considering also the fact that at least 
some of those who act according to the "norms" are totally unaware of 
them. » 

The transition from the merely unreflective formation of a habit to 
the conscious acceptance of the maxim that action should be in accord- 
ance with a norm is always fluid. The mere statistical regularity of an 
action leads to the emergence of moral and legal convictions with corre- 
sponding contents. The threat of physical and psychologial coercion, on 
the other hand, imposes a certain mode of action and thus produces 
habituation and thereby regularity of action. 

, Law and convention are intertwined as cause and effect in the actions 
of men, with, against, and beside, one another. It is grossly misleading 
to consider law and convention as the "forms" of conduct in contrast 
with its "substance" as Stammler does. The belief in the legal or con- 
ventional oughtness of a certain action is, from a sociological point of 
view, merely a superadditum increasing the degree of probability with 
which an acting person can calculate certain consequences of his action. 
Economic theory therefore properly disregards the character of the norms 
to some extent. For the economist the fact that someone "possesses" some- 
thing simply means that he can count on other persons not to interfere 
with his disposition over the object. This mutual respect of the right of 
disposition may be based on a variety of considerations. It may derive 
from deference to conventional or legal norms, or from considerations 
of self-interest on the part of each participant. Whatever the reason, it 
is of no primary concern to economic theory. The fact that a person 
"owes" something to another can be translated , sociologically, into the 
following terms: a certain commitment (through promise, tort, or other 
cause) of one person to another; the expectation, based thereon, that 
in due course the former will yield to the latter his right of disposition 
over the goods concerned; the existence of a chance that this expecta- 
tion will be fulfilled. The psychological motives involved are of no 
primary interest to the economist. 

An exchange of goods means: the transfer of an object, according to 
an agreement, from the factual control of one person to that of another, 
this transfer being based on the assumption that another object is to be 



328 THE ECONOMY AND SOCIAL NORMS [ Ch. I 

transferred from the factual control of the second to that of the first. Of 
those who take part in a debtor-creditor relationship or in a barter, each 
one expects that the other will conform to his own intentions. It is not 
necessary, however, to assume conceptually any "order" outside or above 
the two parties to guarantee, command, or enforce compliance by means 
of coercive machinery or social disapproval. Nor is it necessary to assume 
the subjetive belief of either or both parties in any "binding" norm. For 
the partner to an exchange can depend on the other partner's egoistic 
interest in the future continuation of exchange relationships or other 
similar motives to offset his inclination to break his promise — a fact 
which appears tangibly in the so-called "silent trade" among primitive 
peoples as well as in modern business, especially on the stdfck exchange. 

Assuming purely expediential rationality, each participant can and 
does, in fact, depend on the probability that under normal circumstances 
the other party will act "as if" he accepted as "binding" the norm that 
one has to fulfill his promises. Conceptually this is quite sufficient. But 
it goes without saying that it makes a difference whether the partner's 
expectation in this respect is supported by one or both of the following 
guaranties: 1. the factually wide currency, in the environment, of the 
subjective belief in the objective validity of such a norm (consensus); 
2. even more so, the creation of a conventional guaranty through regard 
for social approval or disapproval, or of a legal guaranty through the 
existence of enforcement machinery. 

Can it be said that a stable private economic system of the modern 
type would be "unthinkable" without legal guaranties? As a matter of 
fact we see that in most business transactions it never occurs to anyone 
even to think of taking legal action. Agreements on the stock exchange, 
for example, take place between professional traders- in such forms as 
in the vast majority of cases exclude "proof in cases of bad faith: the 
contracts are oral, or are recorded by marks and notations in the trader's 
own notebook. Nevertheless, a dispute practically never occurs. Likewise, 
there are organizations pursuing purely economic ends the rules of which 
nonetheless dispense entirely, or almost entirely, with legal protection 
from the state. Certain types of "cartels" were illustrative of this class of 
organization. It often happened also that agreements which had been 
concluded and were valid according to private law were rendered in- 
operative through the dissolution of the organization, as there was no 
longer a formally legitimated plaintiff. In these instances, the organiza- 
tion with its own coercive apparatus had a system of "law" which was 
totally lacking in the power of forcible legal coercion. Such coercion, at 
any rate, was available only so long as the organization was in existence. 
As a result of the peculiar subjective attitude of the participants, cartel 



3 ] Excursus in Response to Rudolf Statnmler 3^9 

contracts often had not even any effective conventional guarantee. How- 
ever, they often functioned nonetheless for a long time and quite effi- 
ciently in consequence of the convergent interests of all the participants. 

Despite all such facts, it is obvious that forcible legal guarantee, espe- 
cially where exercised by the state, is not a matter of indifference to 
such organizations. Today economic exchange is quite overwhelmingly 
guaranteed by the threat of legal coercion. The normal intention in an 
act of exchange is to acquire certain subjective "rights," i.e., in socio- 
logical terms, the probability of support of one's power of disposition 
by the coercive apparatus of the state. Economic goods today are normally 
at the same time legitimately acquired rights; they are the very building 
material for the universe of the economic order. Nonetheless, even today 
they do not constitute the total range of objects of exchange. 

Economic opportunities which are not guaranteed by the legal order, 
or the guaranty of which is even refused on grounds of policy by the 
legal order, can and do constitute objects of exchange transactions which 
are not only not illegitimate but perfectly legitimate. They include, for 
instance, the transfer, against compensation, of the goodwill of a business. 
The sale of a goodwill today normally engenders certain private law 
claims of the purchaser against the seller, namely, that he will refrain 
from certain actions and will perform certain others, for instance, "intro- 
duce" the purchaser to the customers. But the legal order does not en- 
force the claims against third parties. Yet, there have been and still are 
cases in which the coercive apparatus of the political authority is available 
for the exercise of direct coercion in favor of the owner or purchaser of a 
"market," as for instance in the case of a guild monopoly or some other 
legally protected monopoly. It is well known that Fichte" considered it as 
the essential characteristic of modern legal development that, in contrast 
to such cases, the modem state guarantees only claims on concrete usable 
goods or labor services. Besides, so-called "free competition" finds its legal 
expression in this very fact. Yet, although such "opportunities" have re- 
mained objects of economic exchange even without legal protection, 
against third parties, the absence of legal guaranties has nevertheless far- 
reaching economic consequences. But from the point of view of economics 
and sociology it remains a fact that, on general principle, at least, the 
interference of legal guaranties merely increases the degree of certainty 
with which an economically relevant action can be calculated in advance. 

The legal regulation of a subject matter has never been carried out 
in all its implications anywhere. This would require the availability of 
some human agency which in every case of the kind in question would 
be regarded as being capable of determining, in accordance with some 
conceived norm, what ought to be done "by law." We shall by-pass here 



3 3° THE ECONOMY AND SOCIAL NORMS { Ch. I 

the interaction between consociation and legal order: as we have seen 
elsewhere, any rational consociation, and therefore, any order of so- 
cial and consensual action is posterior in this respect. Nor shall we 
discuss here the proposition that the development of social and consensual 
action continually creates entirely new situations and raises problems 
which can be solved by the accepted norms or by the usual logic of 
jurisprudence only in appearance or by spurious reasoning (cf. in this 
respect the thesis of the "free-law" movement).. 

We are concerned here with a more basic problem; It is a fact that 
the most "fundamental" questions often are left unregulated by law 
even in legal orders which are otherwise thoroughly rationalized. Let us 
illustrate two specific types of this phenomenon : 

(0 A "constitutional" monarch dismisses his responsible minister and 
fails to replace him by any new appointee so that there is no one to 
countersign his acts. What is to be done "by law" in such a situation? 
This question is not regulated in any constitution anywhere in the 
world. What is clear is no more than that certain acts of the government 
cannot be "validly" taken. 

(2) Most constitutions equally omit consideration of the following 
question: What is to be done when those parties whose agreement is neces- 
sary for the adoption of the budget are unable to reach an agreement? 

The first problem is described by Jellinek as "moot" for all practical 
purposes. 13 He is right. What is of interest to us is just to know why it 
is "moot." The second type of "constitutional gap," on the other hand, 
has become very practical, as is well known." If we understand "con- 1 
stitution," in the sociological sense, as the modus of distribution of power 
which determines the possibility of regulating social action, we may, 
indeed, venture the proposition that any community's constitution in the 
sociological sense is determined by the fact of where and how its con- 
stitution in the juridical sense contains such "gaps," especially with re- 
gard to basic questions. At times such gaps of the second type have been 
left intentionally where a constitution was rationally enacted by con- 
sensus or imposition. This was done simply because the interested party 
or parties who exercised the decisive influence on the drafting of the 
constitution in question expected that he or they would ultimately have 
sufficient power to control, in accordance with their own desires, that 
portion of social action which, while lacking a basis in any enacted norm, 
yet had to be carried on somehow. Returning to our illustration: they 
expected to govern without a budget. 

Gaps of the first type mentioned above, on the other hand, usually 
remain open for another reason: Experience seems to teach convincingly 
that the self-interest of the party or parties conceined (in our_example, 



3 ] Excursus in Response to Rudolf Stammler 3 3 1 

of the monarch) will at all times suffice so to condition his way of acting 
that the "absurd" though legally possible situation (in our example, the 
lack of a responsible minister) will never occur. Despite the "gap," gen- 
eral consensus considers it as the unquestionable "duty" of the monarch 
to appoint a minister. As there are legal consequences attached to this 
duty, it is to he considered as an "indirectly guaranteed legal obligation." 
Such ensuing legal consequences are: the impossibility of executing cer- 
tain acts in a valid manner, i.e., of attaining the possibility of having them 
guaranteed through the coercive apparatus. But for the rest, it is not estab- 
lished, either by law or convention, what is to be done to carry on the 
administration of the state in case the ruler should not fulfill this duty; 
and since this case has never occurred thus far, there is no custom either 
which could become the source for a decision. This situation constitute: 
a striking illustration of the fact that law, convention, and custom are 
by no means the only forces to be counted on as guarantee for such con- 
duct of another person as is expected of, promised by, or otherwise re- 
garded as due from, him. Beside and above these, there is another force 
ito be reckoned with: the other person's self-interest in the continuation 
of a certain consensual action as such. The certainty with which the 
monarch's compliance with an assumedly binding duty can be anticipated 
is no doubt greater, but only by a matter of degree, than the certainty — 
if we may return now to our previous example— with which a partner 
to an exchange counts, and in the case of continued intercourse, may 
continue to count, upon the other party's conduct to conform with his 
own expectations. This certainty exists even though the transaction in 
question may lack any normative regulation or coercive guaranty. 

What is relevant here is merely the observation that the legal as well 
as the conventional regulation of consensual or rationally regulated action 
may be, as a matter of principle, incomplete and, under certain circum- 
stances, will be so quite consciously. While the orientation of social action 
to a norm is constitutive of consociation in any and every case, the co- 
ercive apparatus does not have this function with regard to the totality 
of all stable and institutionally organizational action. If the absurd case 
of illustration (i) were to occur, it would certainly set legal specula- 
tion to work immediately and then perhaps,.a conventional, or even legal, 
regulation would come into existence. But in the meantime the problem 
would already have been actually solved by some social or consensual or 
rationally regulated action the details of which would depend upon the 
nature of the concrete situation. Normative regulation is one important 
causal component of consensual action, but it is not, as claimed by 
Stamrriler, its universal "form." 

For a discipline such as sociology, which searches for empirical 



3 3 2 ™ B ECONOMY AND SOCIAL NORMS [ Ck. I 

regularities and types, the legal guarantees and their underlying norma- 
tive conceptions are of interest both as consequences and as causes or con- 
comitant causes of certain regularities of human action which are as 
such directly relevant to sociology, or of regularities of natural occurrences 
engendered by human action which as such are indirectly relevant to 
sociology. 

Factual regularities of conduct ("customs") can, as we have seen, 
become the source of rules jot conduct ("conventions," "law"). The 
reverse, however, may be equally true. Regularities may he produced by 
legal norms, acting by themselves or in combination with other factors. 
This applies not only to those regularities which directly realize the, 
content of the legal norm in question, but equally to regularities of a 
different kind. The fact that an official, for example, goes to his office 
regularly every day is a direct consequence of the order contained in a 
legal norm which is accepted as "valid" in practice. On the other hand, 
the fact that a traveling salesman of a factory visits the retailers regularly 
each year'for the solicitation of orders is only an indirect effect of legal 
norms, viz., of those which permit free competition for customers and 
thus necessitate that they be wooed. The fact that fewer children die 
when nursing mothers abstain from work as a result of a legal or con- 
ventional "norm" is certainly a consequence of the validity of that norm. 
Where it is an enacted legal norm, this result has certainly been one of 
the rationally conceived ends of the creators of that norm; but it is ob- 
vious that they can decree only the abstention from work and not the 
lower death rate. Even with regard to directly commanded or prohibited 
conduct, the practical effectiveness of the validity of a coercive norm 
is obviously problematic. Observance follows to an "adequate" degree, 
but never without exceptions. Powerful interests may indeed induce a 
situation in which a legal norm is violated, without ensuing punishment, 
not only in isolated instances, but prevalently and permanently, in spite 
of the coercive apparatus on which the "validity" of the norm is founded. 
When such a situation has become stabilized and when, accordingly, 
prevailing practice rather than the pretense of the written law has become 
normative of conduct in the conviction of the participants, the guarantee- 
ing coercive power will ultimately cease to compel conduct to conform 
. to the latter. In such case, the legal theorist speaks of "derogation through 
customary law." 

"Valid" legal norms, which are guaranteed by the coercive apparatus 
of the political authority, and conventional rules may also coexist, how- 
ever, in a state of chronic conflict, We have observed such a situation 
in the case of the duel, where private revenge has been transformed by 
convention. And while it is not at all unusual that legal norms are ra- 



3 ] Excursus in Res-ponse to Rudolf Stammler 3 3 3 

tionally enacted with the purpose of changing existing "customs" and 
conventions, the normal development is more usually as follows: a legal 
order is empirically "valid" owing not so much to the availability of 
coercive guaranties as to its habituation as "usage" and its "routinization." 
To this should be added the pressure of convention which, in most cases, 
disapproves any flagrant deviation from conduct corresponding to that 
order. 

For the legal theorist the (ideological) validity of a legal norm is 
conceptually the frius. Conduct which is not directly regulated by law 
is regarded by him as legally "permitted" and thus equally affected by 
die legal order, at least ideologically. For the sociologist, on the other 
hand, the legal, and particularly the rationally enacted, regulation of 
conduct is empirically only one of the factors motivating social action; 
moreover, it is a factor which usually appears late in history and whose 
effectiveness varies greatly. The beginnings of actual regularity and 
"usage," shrouded in darkness everywhere, are attributed by the soci- 
ologist, as we have seen, to the instinctive habituation of a pattern of 
conduct which was "adapted" to given necessities. At least initially, this 
pattern of conduct was neither conditioned nor changed by an enacted 
norm. The increasing intervention of enacted norms is, from our point of 
view, only one of the components, however characteristic, of that process 
of rationalization and association whose growing penetration into all 
spheres of social action we shall have to trace as a most essential dynamic 
factor in development. 



4. Summary of the Most General Relations Between Law 
and Economy 

In sum, we can say about the most general relationships between 
law and economy, which alone concern us here, the following: 

(1) Law (in the sociological sense) guarantees by no means only 
economic interests but rather the most diverse interests ranging from the 
most elementary one of protection of personal security to such purely 
ideal goods as personal honor or the honor of the divine powers. Above 
all, it guarantees political, ecclesiastical, familial, and other positions of 
authority as well as positions of social preeminence of any kind which 
may indeed be economically conditioned or economically relevant in the 
most diverse ways, but which are neither economic in themselves nor 
sought for preponderantly economic ends. 

(2) Under certain conditions a "legal order" can remain unchanged 



3 3 4 THE ECONOMY AND SOCIAL NORMS " [ Cfe. I 

while economic relations are undergoing a radical transformation. In 
theory, a socialist system of production could be brought about without 
the change of even a single paragraph of our laws, simply by the gradual, 
free contractual acquisition of all the means of production by the po- 
litical authority. This example is extreme; but, for the purpose of theo- 
retical speculation, extreme examples are most useful. Should such a 
situation ever come about — which is most unlikely, though theoretically 
not unthinkable — the legal order would still be bound to apply its co- 
ercive machinery in case its aid were invoked for the enforcement of 
those obligations which are characteristic of a productive system based 
on private property. Only, this case would never occur in fact." 

(3) Tie legal status of a matter may be basically different according 
to the point of view of the legal system from which it is considered. 
But such differences [of legal classification] need not have any relevant 
economic consequences provided only that on those points which gener- 
ally are relevant economically, the practical effects are the same for the 
interested parties. This not only is possible, but it actually happens 
widely, although it must be conceded that any variation of legal classifica- 
tion may engender some economic consequences somewhere. Thus totally 
different forms of action would have been applicable in Rome depending 
on whether the "lease" of a mine were to be regarded legally as a lease 
in the strict sense of the term, or as a purchase. But the practical effects of 
the difference for economic life would certainly have been very slight. 18 

(4) Obviously, legal guaranties are directly at the service of economic 
interests to a very large extent. Eien where this does not seem to be, or 
actually is not, the case, economic interests are among the strongest fac- 
tors influencing the creation of law. For, any authority guaranteeing a 
legal order depends, in some way, upon the consensual action of the 
constitutive social groups, and the formation of social groups depends, to 
a large extent, upon constellations of material interests. 

(5) Only a limited measure of Success can be attained through the 
threat of coercion supporting the legal order. This applies especially to 
the economic sphere, owing to a number of external circumstances as 
well as to its own peculiar nature. It would be quibbling, however, to 
assert that law cannot "enforce" any particular economic conduct, on the 
ground that we would have to say, with regard to all its means of co- 
ercion, that coactus tamen voluit ("Although coerced, it was still his 
will.") For this is true, without exception, of all coercion which does 
not treat the person to be coerced simply as an inanimate object. Even 
the most drastic means of coercion and punishment are bound to fail 
where the subjects remain recalcitrant. In many spheres such a situation 
would always mean that the participants have not been educated to 



4 ] Summary of Relations Between Law and Economy 335 

acquiescence. Such education to acquiescence in the law of the time and 
place has, as a general rule, increased with growing pacification. Thus it 
should seem that the chances of enforcing economic conduct would have 
increased, too. Yet, the power of law over economic conduct has in many 
respects grown weaker rather than stronger as compared with earlier 
conditions. The effectiveness of maximum price regulations, for example, 
has always been precarious, but under present-day conditions they have 
an even smaller chance of success than ever before. 

Thus the measure of possible influence on economic activity is not 
simply a function of the general level of acquiescence towards legal co- 
ercion. The limits of the actual success of legal coercion in the economic 
sphere rather arise from two main sources. One is constituted by the 
limitations of the economic capacity of the persons affected. There are 
limits not only to the stock itself of available goods, but also to the way 
in which that stock can possibly be used. For the patterns of use and 
of relationship among the various economic units are determined by habit 
and can be adjusted to heteronomous norms, if at all, only by difficult 
reorientations of all economic dispositions, and hardly without losses, 
which means, never without frictions. These difficulties increase with the 
degree of development and universality of a particular form of consensual 
action, namely, the interdependence of the individual economic units in 
the market, and, consequently, the dependence of every one upon the 
conduct of others. The second source of the limitation of successful legal 
coercion in the economic sphere lies in the relative proportion of strength 
of private economic interests on the one hand and interests promoting 
conformance to the rules of law on the other. The inclination to forego 
economic opportunity simply in order to act legally is obviously slight, 
unless circumvention of the formal law is strongly disapproved by a 
powerful convention, and such a situation is not likely to arise where the 
interests affected by a legal .innovation are widespread. Besides, it is often 
not difficult to disguise the circumvention of a law in the economic 
sphere. Quite particularly insensitive to legal influence are, as experience 
has shown, those effects which derive directly from the ultimate sources 
of economic action, such as the estimates of economic value and the 
formation of prices. This applies particularly to those situations where the 
determinants in production and consumption do not lie within a com- 
pletely transparent and directly manageable complex of consensual con- 
duct. It is obvious, besides, that those who continuously operate in the 
market have a far greater rational knowledge of the market and interest 
situation than the legislators and enforcement officers whose interest is 
only formal. In an economy based on all-embracing interdependence on 
the market the possible and unintended repercussions of a legal measure 



336 THE ECONOMY AND SOCIAL NORMS [ Ch. I 

must to a large extent escape the foresight of the legislator simply because 
they depend upon private interested parties. It is those private interested 
parties who are in a position to distort the intended meaning of a legal 
norm to the point of turning it into its very opposite, as has often hap- 
pened in the past. In view of these difficulties, the extent of factual im- 
pact of the law on economic conduct cannot be determined generally, 
but must be calculated for each particular case. It belongs thus to the 
field of case studies in social economics. In general, no more can be as- 
serted than that, from a purely theoretical point of view, the complete 
monopolization of a market, which entails a far greater perspicuity of the 
situation, technically facilitates the control by law of that particular sec- 
tor of the economy. If it, nevertheless, does not always in fact increase 
the opportunities for such control, this result is usually due either to legal 
particularism arising from the existence of competing political associa- 
tions, or to the power of the private interests amenable to the monop- 
olistic control and thus resisting the enforcement of the law. 

(6) From the purely theoretical point of view, legal guaranty by the 
state is not indispensable to any basic economic phenomenon. The pro- 
tection of property, for example, can be provided by the mutual aid sys- 
tem of kinship groups. Creditors' rights have sometimes been protected 
more efficiently by a religious community's threat of excommunication 
than by political bodies. "Money," too, has existed in almost all of its 
forms, without the state's guaranty of its acceptability as a means of pay- 
ment. Even "chartal" money, i.e., money which derives its character as 
means of payment from the marking of pieces rather than from their 
substantive content, is conceivable without the guaranty by the state. 
Occasionally chartal money of non-state origin appeared even in spite of 
the existence of an apparatus of legal coercion by the state: the ancient 
Babylonians, for instance, did not have "coins" in the sense of a means 
of payment constituting legal tender by proclamation of the political 
authority, but contracts were apparently in use under which payment 
was to be made in pieces of a fifth of a shekel designated as such by the 
stamp of a certain "firm" (as we would say). ir There was thus lacking 
any guaranty "proclaimed" by the state; the chosen unit of value was 
derived, not from the state, but from private contract. Yet the means of 
payment was "chartal" in character, and the state guaranteed coercively 
the concrete deal. 

Conceptually the "state" thus is not indispensable to any economic 
activity. But an economic system, especially of the modem type, could 
certainly not exist without a legal order with very special features which 
could not develop except in the frame of a public legal order. Present-day 
economic life rests on opportunities acquired through contracts. It is 
true, the private interests in the obligations of contract, and the common 



4 ] Summary of Relations Between Law and Economy 3 3 7 

interest oFall property holders in the mutual protection of property are 
v still considerable, and individuals are still markedly influenced by con- 
vention and custom even today. Yet, the influence of these factors has 
declined due to the disintegration of tradition, i.e., of the tradition- 
determined relationships as well as of the belief in their sacredness. 
Furthermore, class interests have come to diverge more sharply from 
one another than ever before. The tempo of modem business communica- 
tion requires a promptly and predictably functioning legal system, i.e., 
one which is guaranteed by the strongest coercive power. Finally, modern 
economic life by its very nature has destroyed those other associations 
which used to be the bearers of law and thus of legal guaranties. This 
has been the result of the development of the market. The universal 
predominance of the market consociation requires on the one hand a legal 
system the functioning of which is calculable in accordance with rational 
rules. On the other hand, the constant expansion of the market, which 
we shall get to know as an inherent tendency of the market consociation, 
has favored the monopolization and regulation of all "legitimate" coercive 
power by one universalis! coercive institution through the disintegration 
of all particularist status-determined and other coercive structures which 
have been resting mainly on economic monopolies. 



NOTES 

Unless otherwise indicated, notes ate by Rheinstein. For full references of 
works mentioned, see Sociology of Law, ch. VIII: i, n. i. 

i. Legal dogmatics (dogmatische RechtswissenschafO — the term frequently 
used in German to mean the legal science of the law itself as distinguished from 
such ways of looking upon law from the outside as philosophy, history, or soci- 
ology of law. 

z. See now Part One, ch. 1: 5, but the reference is presumably to "Some Cate- 
gories of Interpretive Sociology," GAzW 443. (R) 

3. Seeo-p.cit., 445,447?., 466. (R) 

4. Cf. below, ch.VIII:v:8. 

5. This is an early formulation of the relationship between usage, custom, 
interest constellation, law and convention, repeated in Part I, sec. 4-6. (R) 

6. Cf. below, ch. VIII: »i: 1. 

7. Cf.PartTwo,ch.rV:i.(W) 

8. Willy Hellpach (1877-195;), professor of medicine, known by his 
highly original investigations on the influence of meteorological and geographic 
phenomena upon the mind. See his "Die geistigen Epidemien," Die Geseuschaft, 
XI, 1906. 

9. Cf. German Civil Code, Sec. 138: "A transaction which is contrary to 
good morals is void"; Sec. 826: "One who causes harm to another intentionally 
and iii a manner which is against good morals, has to compensate the other for 
such harm." 

10. The "courts of love" (coum d'antour') belonged to the amusements of po- 
lite society at the high period of chivalry and the troubadours (twelfth to thir- 



1 



3 3 8 TH £ ECONOMY AND SOCIAL NORMS [ Ck. I 

reenth century). They are reported to have consisted of circles of ladies who were 
organized in the way of courts and rendered judgments and opinions in matters 
of courtly Jove and manners. They flourished in southern France, especially Pro- 
vence, where they, came to an end with the collapse of Provencal society in the 
"crusade" against the Albigensian heretics. In the late Middle Ages, a brilliant 
court of love is reported to have flourished for some years at the Burgundian 
courts cf. Huizinca, Waning of the Middle Ages (1924), c. 8, p. 103. On 
the courts of love in general, see Capeficub, Lbs cours d'amodr (1863); 
Rajna, Le cohti d'amore (1890); and the article by F. Bonnardot in 2 La 
Grande Encyclopedie 805, with further literature. 

1 1. Rudolf Stammler, Wirtschaft unci Recht nach der materialhthchen Ge- 
schtehtstntffassung (1896), 12. 

12. Jon. Gottlieb Fichte, Der geschlossene Handelsstaat (1800), Bk. I, c. 7. 

13. Gesetz und Verordnung (1887) 205; Verfassungsanderunc und 
Verfassungswandel (1906) 43. 

14. The situation arose in Prussia when the predominantly liberal Diet early 
in i860 refused to pass Bismarck's budget because of its disapproval of his policy 
of armaments (so-called Era of Conflict or KonfHktsperiode*) . In Austria, too, Par- 
liament (Reichsrat^ repeatedly was unable to reach agreement on a budget during 
that period of conflict between the several ethnic groups of the Monarchy which 
preceded the outbreak of World War I. 

15- The norms of the legal order existing before the total socialization took 
place could also be applied after its occurrence, if legal title to the various means 
of production were to be ascribed not to one angle, central public authority but 
to formally autonomous public institutions or corporations which are to regulate 
their relationships to each other by contractual transactions, subject to the direc- 
tions of, and control by, the central planning authority. Such a situation does in- 
deed exist in the Soviet Union. Cf, H. J. Berman, Justice in Russia (1950), 
and review by Rheinstein 09;0 64 Harv. L. Rev. 1387. 

16. Cf. in American law the controversy as to the correct legal classification 
of a mining or oil and gas lease: does the transaction create a profit a prendre, or 
does it give to the "lessee" the title to the minerals, or does it result in the crea- t 
tion of a leasehold interest in the strict sense of the term! 1 As in Rome, the 
"proper" classification may be relevant in some practical respect as, for instance, 
with regard to the question of whether, in the case of the death of the lessee — 
if he should ever be an individual! — his interest descends as real, or is to be dis- 
tributed as personal, property. In the former case it would, ordinarily, not be 
touched for the payment of debts of the deceased until all the personal property 
has been exhausted; in the latter, the ^ease" would be immediately available for 
the creditors along with the other "personal" assets of the decedent. But, by and 
large, the economic situation is one and the same whichever of the various legal 
classifications is applied. 

17. No reference to a practice of the kind mentioned could be located ex- 
cept the following passage in B. Maissner, Babylonien und Assyrien (1920) 
356; "As one could not generally rely upon the weight and fineness of the silver 
and thus had to check (xAtu*), one preferred to receive silver bearing a stamp 
Oumku} by which the weight and fineness would be guaranteed- In contracts 
from the period of the first Babylonian dynasty we find shekels mentioned 'with 
a stamp'O) of Babylon (Vorderasiatische Bibliothek VI, No, 217, 15) or shekels 
'from the city of Zahan' or 'from Grossippar' (Brit. Mus. Cuneiform Tablets IV, 
47. i9 a V 



CHAPTER 



II 



THE ECONOMIC 
RELATIONSHIPS OF 
ORGANIZED GROUPS 



i . Economic Action and Economically Active Groups 

Most social groups engage in economic activities. Contrary to an un- 
suitable usage, we shall not consider every instrumental (jweckrationale) 
action as economic. Thus, praying for a spiritual good is not an economic 
act, even though it may have a definite purpose according to some re- 
ligious doctrine. We also shall not include every economizing activity, 
neither intellectual economizing in concept formation nor an esthetic 
"economy of means"; artistic creations are often the highly unprofitable 
outcome of ever-renewed attempts at simplification. Just as little is the 
mere adherence to the technical maxim of the "optimum" — the rela- 
tively greatest result with the least expenditure of .means — an economic 
act; rather, it is a matter of purpose-rational technique. We shall speak 
of economic action only if the satisfaction of a need depends, in the 
actor's judgment, upon relatively scarce resources and a limited number 
of possible actions, and if this state of affairs evokes specific reactions. 
Decisive for such rational action is, of course, the fact that this scarcity is 
subjectively presumed and that action is oriented to it. 

We will not deal here with any detailed "casuistry" and terminology. 
However, we will distinguish two types of economic action: (i) The 
first is the satisfaction of one's own wants, which may be of any conceiv- 
able kind, ranging from food to religious edification, if there is a scarcity 
of gopds and services in relation to demand. It is conventional to think 
particularly of everyday needs — the so-called material needs — when the 

l339l 



3 4 O ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Ck. II 

term "economy" is used. However, prayers and masses too may become 
economic objects if the persons qualified to say them are in short supply 
and can only be secured for a price, just like the daily bread. Bushmen 
drawings, to which a high artistic value is often attributed, are not 
economic objects, not even products of labor in the economic sense, yet 
artistic products that are rated much lower become economic objects if 
they are relatively scarce. (2) The second type of economic action con- 
cerns profit-making by controlling and disposing of scarce goods. 

Social action (soziales Handeln) may be related to the economy in 
diverse ways. 1 

Rationally controlled action (Gesellschaftshandeln) may be oriented, 
in the actor's eyes, to purely economic results— want satisfaction or 
profit-making. In this case an "economic group" comes into being. How- 
ever, rationally controlled action may use economic operations as a means 
for achieving different goals. In this case we have a "group with second- 
ary economic interests" (wirtschaftende Gemeinschaft). Social action 
may also combine economic and non-oconomic goals, or none of these 
cases may occur. The dividing line between groups with primary and 
secondary economic interests is fluid. Strictly speaking, the first state of 
affairs prevails only in those groups that strive for profit by taking advan- 
tage of scarcity conditions, that is, profit-making enterprises, for all 
groups oriented merely toward want satisfaction resort to economic action 
only so far as the relation of supply and demand makes it necessary. In 
this regard, there is no difference between the economic activities of a 
family, a charitable endowment, a military administration, or an associa- , 
tion for joint forest clearing or hunting. To be sure, there seems to be a 
difference between social action that comes into being essentially for the 
sake of satisfying economic demands, as in the case of forest clearing, 
and action with goals (such as military training) that necessitates eco- 
nomic activities merely because of scarcity conditions. But in reality this 
distinction is very tenuous and can be clearly drawn only to the extent 
that social action would remain the same in the absence of any scarcity. 

Social action that constitutes a group neither with primary nor 
secondary economic interests may in various respects be influenced by 
scarcity factors and to diat extent be economically determined. Con- 
versely, such action may also determine the nature and course of eco- 
nomic activities. Most of the time both influences are at work. Social 
action unrelated to either of the two groups is not unusual. Every joint 
walk may be an example. Groups that are economically unimportant are 
quite frequent. However, a special case of economically relevant groups 
consists of those whose norms regulate the economic behavior of the 



i ] Economic Action and Group Structure 3 4 1 

participants but whose organs do not continuously direct economic activi- 
ties through immediate participation, concrete instructions or injunc- 
tions: These are "regulatory groups." They include all kinds of political 
and many religious groups, and numerous others, among them those 
associated specifically for the sake of economic regulation (such as co- 
operatives of fishermen or peasants). 

As we have said, groups that are not somehow economically deter- 
mined are extremely rare. However, the degree of this influence varies 
widely and, above all, the economic determination of social action is 
ambiguous — contrary to the assumption of so-called historical material- 
ism. Phenomena that must, be treated as constants in economic analysis are 
very often compatible with significant structural variations — from a 
sociological viewpoint — among the groups that comprise them or coexist 
with them, including groups with primary and secondary economic in- 
terests. Even the assertion that social structures and the economy are 
"functionally" related is a biased view, which cannot be justified as an 
historical generalization, if an unambiguous interdependence is assumed. 
For the forms of social action follow "laws of their .own," as we shall see 
time and again, and even apart from this fact, they may in a given case 
always be co-determined by other than economic causes. However, at 
some point economic conditions tend to become causally important, and 
often decisive, for almost all social groups, at least those which have 
major cultural significance; conversely, the economy is usually also in- 
fluenced by the autonomous structure of social acdon within which it 
exists. No significant generalization can be made as to when and how 
this will occur. However, we can generalize about the degree of elective 
affinity between concrete structures of. social action and concrete forms 
of economic organization", that means, we can state in general terms 
whether they further or impede or exclude one another — whether they 
are "adequate" or "inadequate" in relation to one another. We will have 
to deal frequently with such relations of adequacy. Moreover, at least 
some generalization can be advanced about the manner in which eco- 
nomic interests tend to result in social action of a certain type. 



2. Open and Closed Economic Relationships 

One frequent economic determinant is the competition for a liveli- 
hood — offices, clients and other remunerative opportunities. When the 
number of competitors increases in relation to the profit span, the partic- 



J4 2 ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Ch. 11 

ipants become interested in curbing competition. Usually one group of 
competitois takes some externally identifiable characteristic of another 
group of (actual or potential) competitors — race, language, religion, local 
or social origin, descent, residence, etc. — as a pretext for attempting their 
exlusion. It does not matter which characteristic is chosen in the indi- 
vidual case: whatever suggests itself most easily is seized upon. Such 
group action may provoke a corresponding reaction on the part of those 
against whom it is directed. 

In spite of their continued competition against one another, the 
jointly acting competitors now form an "interest group" toward outsiders; 
there is a growing tendency to set up some kind of association with 
rational regulations; if the monopolistic interests persist, the time comes 
when the competitors, or another group whom they can influence (for 
example, a political community), establish a legal order that limits com- 
petition through formal monopolies; from then on, certain persons are 
available as "organs" to protect the monopolistic practices, if need be, 
with force. In such a case, the interest group has developed into a 
"legally 'privileged group" (Rechtsgemeinschaft) and the participants 
have become "■privileged members" (Jkechtsgenossen). Such closure, as 
we want to call it, is an ever-recurring process; it is the source of property 
in land as well as of all guild and other group monopolies. 

The tendency toward the monopolization of specific, usually eco- 
nomic opportunities is always the driving force in such cases as: "co- 
operative organization," which always means closed monopolistic groups, 
for example, of fishermen taking their name from a certain fishing area;, 
the establishment of an association of engineering graduates, which seeks 
to secure a legal, or at least factual, monopoly over certain positions; 2 
the exclusion of outsiders from sharing in the fields and commons of a 
village; "patriotic" associations of shop clerks;* the ministeriales, knights, 
university graduates and craftsmen of a given region or locality, ex- 
soldiers entitled to civil service positions — all these groups first engage in 
some joint action CGemeinschaftskandeln^) and later perhaps an explicit 
association. This monopolization is directed against competitors who 
share some positive or negative characteristics; its purpose is always the 
closure of social and economic opportunities to outsiders. Its extent may 
vary widely, especially so far as the group member shares in the appor- 
tionment of monopolistic advantages. These may remain open to all 
monopoly holders, who can therefore freely compete with one another; 
witness the holders of occupational patents (graduates entitled to certain 
positions or master-craftsmen privileged with regard to customers and 
the employment of apprentices). However, such opportunities may also 



2 ] Open and Closed Economic Relationships 343 

be "closed" to insiders. This can be done in various ways: (a) Positions 
may be rotated: the short-run appointment of some holders of office 
benefices had this purpose; (b) Grants may be revocable, such as the 
individual disposition over fields in a strictly organized rural commune, 
for example, the Russian mir;* (c) Grants may be for life, as is the rule 
for all prebends, offices, monopolies of master-craftsmen, rights in using 
the commons, and originally also for the apportionment of fields in most 
village communes; (d) The member and his heirs may get definite 
grants with the stipulation that they cannot be given to others or only 
to group members: witness the «A.^pos (the warrior prebend of An- 
tiquity), the service fiefs of the ministeriales, and monopolies on heredi- 
tary offices and crafts; (e) Finally, only the number of shares may be 
limited, but the holder may freely dispose of his own without the 
knowledge or permission of the other group members, as in a stock- 
holding company. These different stages of internal closure will be called 
stages in the appropriation of the social and economic opportunities that 
t have been monopolized by the group. 

If the appropriated monopolistic opportunities are released for ex- 
change outside the group, thus becoming completely "free" property, 
the old monopolistic association is doomed. Its remnants are the ap- 
propriated powers of disposition which appear on the market as "acquired 
rights" of individuals. For all property in natural resources developed 
historically out of the gradual appropriation of the monopolistic shares 
of group members. In contrast to the present, not only concrete goods 
but also social and economic opportunities of all kinds were the object of 
appropriation. Of course, manner, degree, and ease of the appropriation 
vary widely with the technical nature of the object and of the opportuni- 
ties, which may lend themselves to appropriation in very different 
degrees. For example, a person subsisting by, or gaining an income 
from, the cultivation of a given field is bound to a concrete and clearly 
delimited material object, but this is not the case with customers. Appro- 
priation is not motivated by the fact that the object produces a yield 
only through amelioration, hence that to some extent it is the product 
of the user's labor, for this is even more true of an acquired clientele, 
although in a different manner; rather, customers cannot he "registered" 
as easily as real estate. It is quite natural that the extent of an appropria- 
tion depends upon such differences among objects. Here, however, we 
want to emphasize that the process is in principle the same in both 
cases, even though the pace of appropriation may vary: monopolized 
social and economic opportunities are "closed" even to insiders. Hence, 
groups differ in varying degrees with regard to external or internal 
"openness" or "closure." 



3 4 4 ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Ck. 11 

3. Group Structures and Economic Interests: Monopolist 
versus Expansionist Tendencies 

This monopolistic tendency takes on specific forms when groups are 
formed by persons with shared qualities acquired through upbringing, 
apprenticeship and training. These characteristics may be economic 
qualifications of some kind, the holding of the same or of similar offices, 
a knightly or ascetic way of life, etc. If in such a case an association re- 
sults from social action, it tends toward the guild. Full members make a 
vocation out of monopolizing the disposition of spiritual, intellectual, 
social and economic gocds, duties and positions. Only those are admitted 
to the unrestricted practice of the vocation who (i) have completed a 
novitiate in order to aquire the proper training, (2) have proven their 
qualification, and (3) sometimes have passed through further waiting 
periods and met additional requirements. This development follows a 
typical pattern in groups ranging from the juvenile student fraternities, 
through knightly associations and craft-guilds, to the qualifications re- 
quired of the modern officials and employees. It is true that the interest 
in guaranteeing an efficient performance may everywhere have some 
importance; the participants may desire it for idealistic or materialistic 
reasons in spite of their possibly continuing competition with one an- 
other: local craftsmen may desire it for the sake of their business reputa- 
tion, ministeriales and knights of a given association for the sake of their 
professional reputation and also their own military security, and ascetic 
groups for fear that the gods and demons may turn their wrath against 
all members because of faulty manipulations. (For example, in almost 
all primitive tribes, persons who sang falsely during a ritual dance were 
originally slain in expiation of such an offense. ) : ' But normally this con- 
cern for efficient performance recedes behind the interest in limiting the 
supply of candidates for the benefices and honors of a given occupation. 
The novitiates, waiting periods, masterpieces and other demands, par- 
ticularly the expensive entertainment of group members, are more often 
economic than professional tests of qualification. 

Such monopolistic tendencies and similar economic considerations 
have often played a significant role in impeding the expansion of a 
group. For example, Attic democracy increasingly sought to limit the 
number of those who could share in the advantages of citizenship, and 
thus limited its own political expansion. The Quaker propaganda was 
brought to a standstill by an ultimately similar constellation of economic 
interests. The Islamic missionary ardor, originally a religious obligation, 
found its limits in the conquering warriors' desire to have a non-Islamic, 
and hence underprivileged, population that could provide for the mainte- 



3 ] Group Structures and Economic Interests 3 4 5 

nance of the privileged believers — the type case for many similar phe- 
nomena. 

On the other hand, it is a typical occurrence that individuals live 
by representing group interests or, in some other manner, ideologically 
or economically from the existence of a group. Hence social action may 
be propagated, perpetuated and transformed into an association in cases 
in which this might not have happened otherwise. This kind of interest 
may have the most diverse intellectual roots: In the 19th century the 
Romantic ideologists and their epigoni awakened numerous declining 
language groups of "interesting" peoples to the purposive cultivation of 
their language. German secondary and university teachers helped save 
small Slavic language groups, about whom they felt the intellectual need 
to write books. 

However, such purely ideological group existence is a less effective 
lever than economic interest. If a group pays somebody to act as a con- 
tinuous and deliberate "organ" of their common interests, or if such 
interest representation pays in other respects, an association comes into 
being that provides a strong guarantee for the continuance of concerted 
action under all circumstances. Henceforth, some persons are profes- 
sionally interested in the retention of the existing, and the recruitment 
of new, members. It does not matter here whether they are paid to 
represent (hidden or naked) sexual interests 6 or other "non-material" or, 
finally, economic interests (trade unions, management associations and 
similar organizations), whether they are public speakers paid by the 
piece or salaried secretaries. The pattern of intermittent and irrational 
action is replaced by a systematic rational "enterprise," which continues 
to function long after the original enthusiasm of the participants for their 
ideals has vanished. 

In various ways capitalist interests proper may have a stake in the 
propagation of certain group activities. For example, [in Imperial Ger- 
many] the owners of German "Gothic" type fonts want to preserve this 
"patriotic" kind of lettering [instead of using Latin Antiqua]; similarly, 
innkeepers who permit Social Democratic meetings even though their 
premises are kept off limits for military personnel have a stake in the 
size of the party's membership. Everybody can think of many examples 
of this type for every kind of social action. 

Whether we deal with employees or capitalist employers, all these 
instances of economic interest have one feature in common: The interest 
in the substance of the shared ideals necessarily recedes behind the in- 
terest in the persistence or propaganda of the group, irrespective of the 
content of its activities. A most impressive example is the complete dis- 
appearance of ideological substance in the American parties,, but the 



346 ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Ck. II 

greatest example, of course, is the age-old connection between capitalist 
interests and the expansion of political communities. On the one hand, 
these communities can exert an extraordinary influence on die economy, 
on the other they can extract tremendous revenues, so that the capitalist 
interests can profit most from them: direcdy by rendering paid services 
or making advances on expected revenues, and indirecdy through the 
exploitation of objects within the realm *of the political community. In 
Antiquity and at the beginning of modern history the focus of capitalist 
acquisition centered on such politically determined "imperialist" profits, 
and today again capitalism moves increasingly in this direction. Every 
expansion of a country's power sphere increases the profit potential of 
the respective capitalist interests. 

These economic interests, which favor the expansion of a group, 
may not only be counteracted by the monopolistic tendencies discussed 
above, but also by other economic interests that originate, in a group's 
closure and exclusiveness. We have already stated in general terms that 
voluntary organizations tend to transcend their rational primary purpose 
and to create relationships among the participants that may have quite 
different goals: As a rule, an overarching communal relationship (uber- 
greifende Vergememschaftung) attaches itself to the association (Ver- 
gesellschaftttng). Of course, this is not always true; it occurs only in cases 
in which social action presupposes some personal, not merely business, 
contacts. For example, a person can acquire stocks irrespective of his 
personal qualities, merely by virtue of an economic transaction, and gen- 
erally without the knowledge and consent of the other stockholders. A 
similar orientation prevails in all those associations that make member- 
ship dependent upon a purely formal condition or achievement and do 
not examine the individual himself. This occurs very often in certain 
purely economic groups and also in some voluntary political organiza- 
tions; in general, this orientation is everywhere the more likely, the more 
rational and specialized the group purpose is. However, there are many 
associations ip which admission presupposes, expressly or silendy, quali- 
fications and in which those overarching communal relationships arise. 
This, of course, happens particularly when the members make admission 
dependent upon an investigation and approval of the candidate's personal 
qualities. At least as a rule, the candidate is scrutinized not only with 
regard to his usefulness for the organization but also "existentially," with 
regard to personal characteristics esteemed by the members. 

We cannot classify here the various modes of association according 
to the degree of their exclusiveness. It suffices to say that such selectness 
exists in associations of the most diverse kinds. Not only a religious sect, 
but also a social club, for instance, a veterans' association or even a bowl- 



3 ] _ Group Structttres and Economic Interests 3 4 7 

ing club, as a rule admit nobody who is personally objectionable to the 
members. This very fact "legitimizes" the new member toward the out- 
side, far beyond the qualities that are important to the group's purpose. 
Membership provides him with advantageous connections, again far 
beyond the specific goals of the organization. Hence, it is very common 
that persons belong to an organization although they are not really in- 
terested in its purpose, merely for the sake of 'hose economically valuable 
legitimations and connections that accrue from membership. Taken by 
themselves, these motives may contain a strong incentive for- joining and 
hence enlarging the group, but the opposite effect is created by the 
members* interest in monopolizing those advantages and in increasing 
their economic value through restriction to the smallest possible circle. 
The smaller and the more exclusive such a circle is, the higher will be 
both the economic value and the social prestige of membership. 

Finally, we must briefly deal with another frequent relationship be- 
tween the economy and group activities: the deliberate offer of economic 
, advantages in the interest of preserving and expanding a primarily non- 
economic group. This happens particularly when several similar groups 
compete for membership: witness political parties and religious com- 
munities. American sects, for instance, arrange artistic, athletic and other 
entertainment and lower the conditions for divorced persons remarrying; 
the unlimited underbidding of marriage regulations was only recently 
curbed by regular cartelization. In addition to arranging excursions and 
similar activities, religious and political parties establish youth groups 
and women chapters and participate eagerly in purely municipal or other 
basically non-political activities, which enable them to grant economic 
favors to local private interests. To a very large extent, the invasion of 
municipal, co-operative or other agencies by such groups has a direct 
economic motivation: it helps them to maintain their functionaries 
through office benefices and social status and to shift the operating costs 
to these other agencies. Suitable for this purpose are jobs in municipali- 
ties, producers' and consumers' co-operatives, health insurance funds, 
trade unions and similar organizations; and on a vast scale, of course, 
political offices and benefices or other prestigious or remunerative posi- 
tions that can be secured from the political authorities — professorships 
included. If a group is sufficiently large in a system of parliamentary 
government, it can procure such support for its leaders and members, 
just like the political parties, for which this is essential. 

In the present context we want to emphasize only the general fact 
that non-economic groups also establish economic organizations, espe- 
cially for propaganda purposes. Many charitable activities of religious 
groups have such a purpose, and this is even more true of the Christian, 



3 4 8 ECONOMIC RELATIONSHIPS OF ORGANIZED CROUPS [ Ch. U 

Liberal, Socialist and Patriotic trade unions and mutual benefit funds, 
of savings and insurance institutes and, on a massive scale, of the con- 
sumers' and producers' co-operatives. Some Italian co-operatives, for 
instance, demanded the certification of confession before hiring a worker. 
In Germany [before 1918] the Poles organized credit lending, mortgage 
payments and farm acquisition in an unusually impressive fashion; dur- 
ing the Revolution of 1905/6 the various Russian parties immediately 
pursued similarly modern policies. Sometimes commercial enterprises 
are established: banks, hotels (like the socialist Hdtellerie du Pewple in 
Ostende) and even factories (also in Belgium). If this happens, the 
dominant groups in a political community, particularly the civil service, 
resort to similar methods in order to stay in power, and organize every- 
thing from economically advantageous "patriotic" associations and activi- 
ties to state -con trolled loan associations (such as the Preti$senkasse~). The 
technical details of such propagandist^ methods do not concern us here. 
In this section we merely wanted to state in general terms, and to 
illustrate with some typical examples, the coexistence and opposition of 
expansionist and monopolist economic interests within diverse groups. 
We must forego any further details since this would require a special 
study of the various kinds of associations. Instead, we must deal briefly 
with the most frequent relationship between group activities and the 
economy: the fact that an extraordinarily large number of groups have 
secondary economic interests. Normally, these groups must have de- 
veloped some kind of rational association; exceptions are those that 
develop out of the household (see ch. IV : 2 below). 



4. Five Types of Want Satisfaction by F,conomically 
Active Groups 

Social action that has become rational association will have an 
established order for want satisfaction if it requires goods and services 
for its operations. In principle, there are five typical ways of securing 
these goods and services — as far as possible, the examples will be taken 
from political groups, since they have the most highly developed arrange- 
ments: 

(0 The oikos type with its collective natural economy. The group 
members must render fixed personal services, which may he equal fot 
all or specialized (for instance, universal conscription of all able-bodied 
men or specialized military duties as craftsmen — (_Okonomiehand- 
werkeT): moreover, they must meet the material needs by fixed payments 



4 ] Five Types of Want Satisfaction 3 4 9 

in kind (for the royal table or the military administration). Thus, these 
goods and services are not produced for the market but for the group's 
collective economy (for instance, a self-sufficient manorial or royal 
household — the pure type of the oikos — or a military administration that 
is completely dependent wpon services and payments in kind, as — 
approximately — in ancient Egypt). 

(2) Market-oriented assessments that make it possible for a group 
to meet its demands by buying equipment and employing workers, of- 
ficials and mercenaries, these assessments may be compulsory taxes, 
regular dues, or fees at certain occasions; they may also- be tributes from 
persons who are not otherwise group members, but who (a) benefit from 
certain advantages and opportunities (such as a Registry Office for real 
estate or some other agency) or physical facilities (such as roads) — the 
principle involved is that of a compensation for services rendered: fees 
in the technical sense; tributes may also be levied on persons who (b) 
simply happen to be within the group's power sphere (contributions 
from persons who are merely residents, duties from persons and goods 
passing through the group's territory). 

(3) Production for the market: an enterprise sells its products and 
services and surrenders its profits to the group of which it is a part. The 
enterprise may not have a formal monopoly (witness the Prussiun See- 
handlung and the Grande Chartreuse*), or it may be of the monopolist 
type that has been frequent .in the past and the present (such as the 
post office). Obviously, every kind of combination is possible between 
these three, logically most consistent types. Money may be substituted 
for payments in kind, natural products may be sold on the market, 
capital goods may be secured directly by payments in kind or bought 
with the help of assessments. As a rule, the components of these tvpes 
arc combined with one another, 

(4) The maecenatic type: Voluntary contributions are made by per- 
sons who can afford them and who have material or ideal interests in the 
group, whether or not they are members in other respects. (In the case 
of religious and political groups, the typical forms here are religious 
endowments, political subsidies by big contributors, but also the mendi- 
cant orders and the [not-so-] voluntary "gifts" to princes in early 
historical times.) There arc no fixed rules and obligations and no neces- 
sary connections between contributions and other forms of participation: 
the sponsor may remain completely outside the group. 

(5) Contributions and sen'ices linked to positive and neqiitiic privi- 
leges, (a) The positive variant occurs primarily when a certain eco- 
nomic or social monopoly is guaranteed or, conversely, when certain 



3 5° ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Ck. 11 

privileged status groups or monopolized groups are completely or partly 
exempt. Hence contributions and services are not required according to 
general rules from the various property and income strata or the — at least 
in principle — freely accessible kinds of property and occupation; rather, 
they are required according to the specific economic and political powers 
and monopolies that have been granted to an individual or a group by 
the larger community. (Examples are manorial estates, tax privileges or 
special levies for guilds or certain status groups.) The point is that these 
demands are raised as a correlate of, or compensation for, the guarantee 
or appropriation of privileges. Thus, the method of want satisfaction 
creates or stabilizes a monopolistic differentiation of the group by virtue 
of the closure of the social and economic opportunities granted to its 
various strata. An important special case are the many diverse forms of 
feudal or patrimonial administration, with their linkage to appropriated 
power positions that 'permit the necessary amount of concerted action. 
(In the Standestcutt the prince must meet the costs of government from 
his patrimonial possessions, just like the feudal participants in political 
or patrimonial power and status, the vassals, ministeriales etc., must use 
their own means.) Most of the time, this mode of want satisfaction in- 
volves contributions in kind. However, under capitalism analogous phe- 
nomena may occur: for example, in one way or another, the political 
authorities may guarantee a monopoly to a group of entrepreneurs and in 
return impose contributions directly or through taxation. This method, 
which was widespread during the mercantilist era, is presently quite 
important again — witness the liquor tax in Germany. 7 

(b) Want satisfaction through negative privileges is called liturgy: 
We speak of class liturgy, if economically costly obligations are tied to a 
certain size or amount of property that is not privileged by any monopoly; 
at best, those affected can take turns. Examples are the trierarchoi and 
ckoregoi in Athens and the compulsory tax-farmers in the Hellenistic 
states. We speak of status liturgy, if the obligations are linked to monop- 
olistic groups in such a manner that the members cannot withdraw 
unilaterally and hence remain collectively liable for satisfying the needs 
of the larger political unit. Examples are the compulsory guilds of ancient 
"Egypt and late Antiquity; the. hereditary attachment of the Russian 
peasants to the village, which is collectively liable for taxes; the more or 
less strict immobility of coloni and peasants diroughout history, with 
their collective liability for paying taxes and, possibly, for providing re- 
cruits; and the Roman decuriones, who were collectively responsible for 
the taxes which they had to levy. 

As a rule, the last type (5) of want satisfaction is inherendy limited 
to compulsory associations, especially the political ones. 



5 ] Effects of Modes of Want Satisfaction & Taxation 3 5 1 

5 . Effects of Want Satisfaction and Taxation on 
Capitalism and Mercantilism 

The various modes of want satisfaction, always the result of struggles 
between different interests, often exert a far-reaching influence beyond 
their direct purpose, ITiis may lead to a considerable degree of economic 
regulation: witness in particular the liturgical modes of want satisfaction. 
Even when this is not directly the case, these modes may strongly affect 
the development and the direction of the economy. For example, status- 
liturgy gready contributed to the "closure" of social and economic op- 
portunities, to the stabilization of status groups, and thus to the elimina- 
tion of private capital formation. Moreover, if a political community 
satisfies its wants by public enterprises or by production for the market, 
private capitalism also tends to be eliminated. Monopolistic want satisfac- 
tion, too, affects private capitalism, but it may stimulate as well as 
impede private capital formation. This depends upon the particular 
nature of the state-sponsored monopolies. Ancient capitalism was suffo- 
cated because the Roman empire resorted increasingly to status-liturgy 
and partly also to public want satisfaction. Today, capitalist enterprises 
run by municipalities or the state in part redirect and in part displace 
private capitalism; the fact that the German exchanges have not quoted 
rail stocks since the railroads were nationalized is not only important 
for their position but also for the nature of property formation." Private 
capitalism is retarded (for example, the growth of private distilleries), 
if monopolies are protected by the state and stabilized with state subsidies 
(as in the case of the German liquor tax). Conversely, during the 
Middle Ages and in early modern times, the trade and colonial monop- 
olies at first facilitated the rise of capitalism, since under the given condi- 
tions only monopolies provided a sufficient profit span for capitalist 
enterprises. But later — in England during the 17th century — these 
monopolies impeded capitalist profit interests and provoked so much 
bitter opposition that they collapsed. Thus, the effect of tax-based monop- 
olies is equivocal. However, clearly favorable to capitalist development 
has been want satisfaction through taxation and the market; in the ex- 
treme case, the open market is used as much as possible for adminis- 
trative needs, including the recruitment and training of troops by private 
entrepreneurs, and all means are secured through tax monies. This 
presupposes, of course, a fully developed money economy and also a 
stricdy rational and efficient administration: a bureaucracy. 

This precondition is particularly important with regard to the taxa- 
tion of personal ("mobile") property, a difficult undertaking everywhere, 
especially in a democracy. We must deal briefly with these difficulties, 



3 J 2 ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Cfe. H 



\ 



since they have greatly affected the rise of modem capitalism. Even 
where the property] ess strata are dominant, the taxation of personal 
property meets certain limits as long as the propertied can freely leave 
the community. The degree of mobility depends not only on the relative 
importance of membership in this particular community for the proper- 
tied, but also on the nature of the property. Within compulsory associa- 
tions, particularly political communities, all property utilization that is 
largely dependent on real estate is stationary, in contrast to personal 
property which is either monetary or easily exchangeable. If propertied 
families leave a community, those staying behind must pay more taxes; 
in a community dependent on a market economy, and particularly 'a 
labor market, the have-nots may find their economic opportunities so 
much reduced that they will abandon any reckless attempt at taxing the 
haves or will even deliberately favor them. Whether this will indeed 
happen, depends upon the economic structure of the community. In 
democratic Athens such considerations were outweighed by the incen- 
tives for taxing the propertied, since the A then inn st;ite lived largely 
from the tributes of subjects and had an economy in which the labor 
market (in the modern sense of the term) did not vet determine the 
class situation of the masses. 

Under modern conditions the reverse is usually true. Today com- 
munities in which the propertyless have seized power are often very 
cautious toward the propertied. Municipalities under socialist control, 
such as the city of Catania, have attracted factories with substantial tax- 
benefits, because the socialist rank and file were more interested in better 
job opportunities and in directly ameliorating their class situation, than 
in "just" property distribution and "equitable" taxation. Likewise, in 
spite of conflicting interests in a given case, landlords, speculators in 
building land, retailers and craftsmen tend to think first of their im- 
mediate class-determined interests; therefore, all kinds of mercantilism 
have been a frequent, though highly varied, phenomenon in all types of 
communities. This is all the more so since th'.se concerned with the 
relative power position of a community also have an interest in preserving 
the tax base and great fortunes capable of granting them loans; hence, 
they are forced to treat personal property cautiously. Thus, even where 
theJiave-nots are in control, personal property may cither expect mercan- 
tilist privileges or at least exemption from liturgies and taxes, provided a 
plurality of communities competes with one another among which the 
property owners can choose their domicile. One example is the United 
States, in which the separatism ot the individual states led to the failure 
of ail serious attempts at unifying consumer interests; more limited, but 



5 ] Effects of Moi'j of Want Sat isf action b Taxation 353 

still pertinent is die ease of the municipalities of: a country, and finally 
there are the independent countries themselves. 

For the rest, the method of taxation depends, of course, very much 
on the relative power position of the various groups in a community, and 
on the nature of the economic system. Every increase of want satisfaction 
in kind favors the liturgical method. Thus, in Egypt the liturgical system 
originated in the Pharaonie period, and the course of the hue Roman 
liturgical state, which was modelled alter the Egyptian example, was 
determined hy the largely natural economy of the conquered inland 
areas and the relaiive decline of ihc capitalist strata; in turn, these strata 
lost their former importance because the political and .dministrativc 
transformation of the Empire eliminated the tax-rarmer and the exploita- 
tion of the subjects through usury. 

If personal ("mobile") prupcrtv is dominant, the propertied every- 
where unburden themselves of liturgical want satisfaction and shift the 
tax burden to the masses. In Rome military sen-ice used to be liturgically 
classified according to piopertv and to involve the self -equipment of the 
propertied citizens; then, however, die knightly strata were freed from 
military service and replaced bv (he state equipped proletarian army, else- 
where the mercenary army, the costs of which were met by mass taxation. 
Instead of satisfying extraordinary public wants through the property tax 
or compulsory loans without interest, that is, through the liturgical 
liability of the propertied, the Middle Ages everywhere resorted to 
interest-bearing loans, land mortgages, customs and other assessments; 
thus, the propertied used pressing public needs as a source for profit and 
rent. Sometimes these practices would almost reduce a city's administra- 
tion and tax system to an instrument of state creditors, as it happened 
for a time in Genoa. 

Finally, at the beginning of modern history, the various countries 
engaged in the struggle for power needed ever more capital for political 
reasons and because of the expanding money economy. This resulted in 
that memorable alliance between the rising states and the sought-after 
and privileged capitalist powers that was a major factor in creating mod- 
ern capitalism and fully justifies the designation "mercantilist" for the 
policies of that epoch. This usage is justified even though, in Antiquity 
and modern times, "mercantilism," as the protection of personal ("mo- 
bile") property, existed wherever several political communities competed 
with one another by enlarging their tax base and by promoting capital 
formation for the sake of obtaining private loans. The fact that "mercan- 
tilism" at the beginning of modern history had a specific character and 
specific effects had two reasons: (1) the political structure of the com- 
peting states and of their economy— this will be treated later — , and (2) 



3 5 4 ECONOMIC RELATIONSHIPS OF ORGANIZED GROUPS [ Ch. II 

the novel structure of emergent modern capitalism, especially industrial 
capita Hsm, which was unknown to Antiquity and in the long run profited 
greatly from state protection. At any rate, from that time dates that Euro- 
pean t ompetitive struggle between large, approximately equal and purely 
political structures which has had such a global impact. It is well known 
that this political competition has remained one of the most important 
motives of the capitalist protectionism that emerged then and today con- 
tinues in different forms. Neither the trade nor the monetary policies 
of the modern states — those policies most closely linked to the central . 
interests of the present economic system — can be understood without this 
peculiar political competition and "equilibrium" among the European 
states during the last five hundred years — a phenomenon which Ranke 
recognized in his first work as the world-historical distinctiveness of this 
era. 9 



NOTES 

i. This sentence appears to be a later insertion. The term soziahs Handeht 
does not recur in the chapter; rather, Weber uses the older equivalent Gemein- 
schaftshandeln, 

2. As is his wont, Weber uses the name of a given association in a generic 
sense, but also with an undertone of irony. In this case he refers to the Verbctnd 
der Diplomingenieure, the association of engineering graduates from the Tech- 
nical Colleges (Rochsckulen), which ranked lower in prestige than the older uni- 
versities. Such graduates often took pains to differentiate themselves from the prod- 
ucts of engineering schools without university status and protected diplomas. 

3. The Patriotic Association of Business Clerks was a union of white-collar 
employees who emphasized their social distance from the working class by pro- 
nounced nationalism. The association remained a prominent right wing organiza- 
tion in the Weimar Republic. 

4. Cf. Weber, Economic History, 3of. 

5. Weber speaks later (ch. VI:8) of this as a practice among American In- 
dians; Fischoff translates instead "India," but Ralph Linton locates the practice 
in Polynesia; see The Tree of Culture (New York: Knopf, 1955), 192. 

6. Weber may refer here to contemporary events: female lecturers advocat- 
ing free love and the right to illegitimate children, and a Freudian psychiatrist 
who proclaimed "sexual communism," appeared in Heidelberg and aroused his 
ire. However, Weber was by no means anti-feminist. When his wife organized 
a convention of the Bund deutscher Frauenvereine in Heidelberg in 1910, a fac- 
ulty member attacked this meeting in a newspaper article as an assembly of spin- 
sters, widows, Jewesses and sterile women— the last category obviously meant to 
include Marianne Weber. Weber wrote his wife's public defense, but this led to 
allegations that he was hiding behind her and refusing to duel in her behalf. The 
upshot was one, of Weber's several involved lawsuits. We'>er also helped Else 
von Richthofen, his first female doctorate candidate, to become the first female 
factory inspector in the state of Baden in 1900. (Her sister was toe wife of D. 
H. Lawrence.) See Marianne Weber, Max Weber, 263^ 41 iff and 472ff. 



Notes 3 5 ? 

7. The Liquor Tax of 1909 was a major factor in ending the coalition be- 
tween Liberals and Conservatives in the Reichstag and in precipitating Chancel- 
lor Bulow's resignation. At issue was a tax reform which would pay for the mount- 
ing military expenditures and at the same time distribute more equitably the tax 
burden among the various social strata. 

8. In 1875, about half of the rapidly growing German railroads were still in 
private hands. Railshares were a major object of speculation before the great 
crash of 1873. The Prussian state, which had built railroads since 1847, em- 
barked on large-scale nationalization after 1878. However, the interest in pre- 
venting further stock speculations was less important than were military consid- 
erations. Cf. Gustav Stolper, German Economy: 1870-1940. (New York: Reynal 
& Hitchcock, 1940), 7zf. 

9. Leopold von Ranke, Histories of the Latin and Teuton Nations': 1405- 
1 J 14 (London, 1909). G. R. Dennis, trans. First published in the summer of 
1824. Cf. Theodore von Laue, Leopold Ranke: The formative Years (Princeton: 
University Press, 1950), 24-32. 



CHAPTER 



III 



HOUSEHOLD, 
NEIGHBORHOOD AND 
KIN GROUP' 



i . The Household: Familial, Capitalistic and 
Communistic Solidarity 

An examination of the specific, often highly complex effects of the 
ways in which social groups satisfy their economic wants does not belong 
into this genera] review, and concrete individual instances will be con- 
sidered merely as examples. 

While abandoning any attempt to systematically classify the various 
kinds of groups according to the structure, content and means of social 
action — a task which belongs to general sociology — , we turn to a brief 
elucidation of those types of groups which are of the greatest importance 
for our exposition. Only the relationship of the economy to "society" — in 
our case, the general structures of human groups — will be discussed here 
and not the relationship between the economic sphere and specific areas 
of culture — literature, art, science, ttc. Contents and directions of social 
action are discussed only insofar as they give rise to specific forms that are 
also economically relevant. The resulting boundary is no doubt quite 
fluid. At any rate, we shall be concerned only with certain universal types 
of groups. What follows is only a general characterization. Concrete his- 
torical forms of these groups will be discussed in greater detail in conv 
nection with "authority" [ch. X-XV]. 

The relationships between father, mother and children, established 
by a stable sexual union, appear to us today as particularly "natural" 

[356] 



i ] The Household: Modes of Solidarity 3 5 7 

relationships. However, separated from the household as a unit of eco- 
nomic maintenance, the sexually based relationship between husband 
and wife, and the physiologically determined relationship between father 
and children are wholly unstable and tenuous. The father relationship 
cannot exist without a stable economic household unit of father and 
mother; even where there is such a unit the father relationship may not 
always be of great import. Of all the relationships arising from sexual 
intercourse, only the mother-child relationship is "natural," because it is 
a biologically based household unit that lasts until the child is able to 
search for means of subsistence on his own. 

Next comes the sibling group, which the Greeks called homogalaktes 
[literally: persons suckled with the same milt]. Here, too, the decisive 
point is nor the fact of the common mother but that of common main- 
tenance. Manifold group relationships emerge, in addition to sexual and 
physiological relationships, as soon as the family emerges as a specific 
social institution. Historically, the concept of the family had several 
meanings, and it is useful only if its particular meaning is always clearly 
defined. More will be said later on about this. 

Although the grouping of mother and children must be regarded as 
(in the present sense) the most primitive sort of family, it does not mean 
— indeed, it is unimaginable — that there ever were societies with ma- 
ternal groupings only. As far as it is known, wherever the maternal 
grouping prevails as a family type, group relationships, economic and 
military, exist among men as well, and so do those of men with women 
(both sexual and economic). The pure maternal grouping as a normal, 
hut obviously secondary, form is often found precisely where men's 
everyday life is confined to the stable community of a "men's house," at 
first for military purposes, later on for other reasons. Men's houses [Man- 
nerhiiuser] can be found in various countries as a specific concomitant 
and a resultant of militaristic development. 

One cannot think of marriage as a mere combination of sexual union 
and socialization agency involving father, mother, and children. The 
concept of marriage can be defined only with reference to other groups 
and relationships besides these. Marriage as a social institution comes into 
existence everywhere oply as an antithesis to sexual relationships which 
are not rega'rded' as marriage. The existence of a marriage means that ( i ) 
a relation$hip formed against the will of the wife's or the husband's kin 
will not be tolerated and may even be avenged by an organization, such 
as in olden times the kinsmen of the husband or of the wife or both. 
(2) It means especially that only children born of stable sexual relation- 
ships within a more inclusive economic, political, religious, or other com- 
munity to which one or both parents belong will be treated, by virtue of 



358 HOUSEHOLD, NEIGHBORHOOD AND KIN CROUP [ Ck. Ill 

their descent, as equal members of an organization — house, village, kin, 
political group, status group, religious group; while descendants who are 
a product of other sexual relationships will not be treated in such a man- 
ner. This and nothing else is the meaning of the distinction between 
birth in wedlock and out of wedlock. The prerequisites of a legitimate 
marriage, the classes of persons not allowed to enter into stable relation- 
ships with each other, the kinds of permission and kinds of kinship or 
other connections required for their validity, the usages which must be 
observed — all these matters are regulated by the "sacred" traditions and 
the laws of those groups. Thus, it is the regulations of groups other than 
mere sexual groupings- and sibling communities of experience which 
endow the marriage with its specific quality. We do not intend to ex- 
pound here the anthropologically very significant development of these 
regulations, since it is only their most important economic aspects which 
concern us. 

Sexual relationships and the relationships between children based 
on the fact of their common parent or parents can engender social action 
only by becoming the normal, though not the only, bases of a specific 
economic organization: the household. 

The household cannot be regarded as simply a primitive institution. 
Its prerequisite is not a "household" in the present-day sense of the word, 
but rather .1 certain degree of organized cultivation of soil. 

The household does not seem to have existed in a primitive economy 
of hunters and nomads. However, even under the conditions of a tech- 
nically well-advanced agriculture, the household is often secondary with 
respect to n preceding state which accorded more power to the inclusive 
kinship and neighborhood group on. the one hand, and more freedom to 
the individual vis-a-vis the parents, children, grandchildren, and siblings 
on the oth< r hand. The almost complete separation of the husband's and 
wife's mejns and belongings, which was very frequent especially where 
social differentiation was low,- seems to point in this direction, as does 
the occasional custom according *to which man and wife were seated 
back to back during their meals or even took their meals separately, and 
the fact that within the political group there existed independent organi- 
zations of women with female chieftains alongside the men's organiza- 
tions. However, one should not infer from such facts the existence of an . 
individualistic primitive condition. Rather, conditions that are due to 
a certain type of military organization, such as the man's absence from : 
the house for his military service, lead to a "manless" household manage- 
ment by the wives and mothers. Such conditions were residually pre- 
served in the family structure of the Spartans, which was based on the 
man's absence from the home and separation of belongings. 

The size and inclusiveness of the household varies. Bui it is the most 



i ] The Household: Modes of Solidarity 359 

widespread economic group and involves continuous and intensive social 
action. It is the fundamental basis of loyalty and authority, which in turn 
is the basis of many other groups. This "authority" is of two kinds: (1) 
the authority derived from superior strength; and (2) the authority 
derived from practical knowledge and experience. It is, thus, the author- 
ity of men as against women and children; of the able-bodied as against 
those of lesser capability; of the adult as against the child; of the old as 
against the young. The "loyalty" is one of subjects toward the holders of 
authority and toward one another. As reverence for ancestors, it finds its 
way into religion; as a loyalty of the patrimonial official, retainer, or 
vassal, it becomes a part of the relationships originally having a domestic 
character. 

In terms of economic and personal relationships, the household in its 
"pure," though not necessarily primitive, form implies solidarity in deal- 
ing with the outside and communism of property and consumption of 
everyday goods within (household communism). The principle of soli- 
darity in facing the outside world was still found in its pure form in the 
periodically contractually regulated households as entrepreneurial units 
in the medieval cities of northern and central Italy, especially those most 
advanced in capitalist economy. All members of the household, including 
at times even the clerks and apprentices who were members by contract, 
were jointly responsible to the creditors. This is the historic source of the 
joint liability of the owners of a private company for the debts incurred 
by the finn. This concept of joint liability was of great importance in 
the subsequent development of the legal forms of modern capitalism. 2 

There was nothing corresponding to our law of inheritance in the old 
household communism. In its place there was, rather, the simple idea 
that the household is "immortal." If one of its members dies, or is expelled 
(after committing an inexpiable ill deed), or is permitted to join another 
household (by adoption), or is dismissed (_emanci-patio~), or leaves out of 
his own accord (where this is permitted), he cannot possibly lay claim 
to his "share." By leaving the household he has relinquished his share. 
If a member of the household dies, the joint economy of the survivors 
simply goes on. The Swiss GemeindeTschaften operate in such a way 
to the present day. 3 

The principle of household communism, according to which every- 
body contributes what he can and takes what he needs (as far as the 
supply of goods suffices), constitutes even today the essential feature 
of our family household, but is limited in the main to household 
consumption. 

Common residence is an essential attribute of the pure type of house- 
hold. Increase in size brings about a division and creation of separate 
households. In order to keep the property and the labor force intact, a 



300 HOUSEHOLD, NEIGHBORHOOD AND KIN GROUP [Ch. Ill 

compromise based on local decentralization without partition can be 
adopted. Granting some special privileges to the individual household 
is an inevitable consequence of such a solution. Such a partition can be 
carried to a complete legal separation and independence in the control 
of the business, yet at the same time a surprisingly large measure of 
household communism can still be preserved. It happens in Europe, 
particularly in the Alpine countries (cf. Swiss hotel keepers' famines), 
and also in the large family firms of international trade that, while the 
household and household authority have outwardly completely disap- 
peared, a communism of risk and profit, i.e., sharing of profit and loss of 
otherwise altogether independent business managements, continues to 
exist. 

1 have been told about conditions in international houses with earn- 
ings amounting to millions, whose capital belongs for the most part, but 
not exclusively, to relatives of varying degree and whose management 
is predominantly, bur not solely, in the hands of the members of the 
family. The individual establishments operate in very diverse lines of 
business; they possess highly variable amounts of capita! and labor force; 
and they achieve widclv variable profits. In spite of this, after the deduc- 
tion of the usual interest on capital, the annual returns of all the branches 
are simply thrown into one hopper, divided into equal portions, and 
allotted according to an amazing! v simple formula (often by the number 
of headO. The household communism on this level is being preserved 
for the sake of mutual economic support, which guarantees a balanc- 
ing of capital requirements and capital surplus between the business 
establishments and spares them from having to solicit credit from out- 
siders. The "calculative spirit" thus docs not extend to the distribution 
of balance-sheet results, but it dominates all the more within the indi- 
vidual enterprise: even a close relative without capital and working as an 
employee will not be paid more than any other employee, because cal- 
culated costs of operation cannot be arbitrarily altered in favor of one 
individual without 'creating dissatisfaction in others. Beyond the balance 
sheet, those lucky enough to participate enter the "realm of equality and 
brotherhood." 



2. The Neighborhood: An Unsentimental Economic 
Brotherhood 

The household meets the everyday demands for goods and labor. In 
a self-sufficient agrarian economy a good deal of the extraordinary de- 
mands at special occasions, during natural calamities and social emer- 



2 ] The Neigiihorhood: Economic Brotherhood 3 6 1 

gene ics are met by sons] action that transcends the individual household; 
the -i-^i stance of '.he- neighborhood. For us, the neighborhood is not only 
the "natural" one of the rural settlement but every permanent or ephe- 
meral comnuiniiv o! interest that derives from -physical proximity; of 
course, if not specified furriier, we refer most of the time to the neighbor- 
hood of households titled close to one another. 

The group of neighbors mav tnkt* on different forms depending on 
the tvpe of settlement: scattered farms, a village, a city street or a slum; 
neighborly sort;;' net ion may have different degrees of intensity and, 
esiK.eialK in ihe modem eitv, it may be almost non-existent. To be sure, 
the extent of mutual help and of sacrifices that even today occurs fre- 
quently in the apartment houses of the poor mav lie astonishing to one 
who discovers it for the first time. However, not only the fleeting "to- 
getherness" in streetcar, railroad or hotel, but also the enduring one in an 
apartment house is by and large oriented toward maintaining the greatest 
possible distance in spite (or because) of the physical proximity, and 
some social action is likely only in cases of common danger. We cannot 
discuss here whv this attitude has become so conspicuous under modern 
conditions as a result of the specific sense of individual dignity created hy 
them. Suffice it to note that the same ambivalence has always occurred 
in the stable rural neighborlmod: the individual peasant does not like 
any interference with his .affairs, no matter how well-meant it may be. 
Neighborly co-operation is an exception, although it recurs regularly. It 
is always less intensive and more discontinuous than the social action 
of the household, and the circle of participants is far more unstable. For 
in general, the neighborhood group is merely based on the simple fact 
that people happen to reside close to one another. In the self-sufficient 
rural economy of early history the typical neighborhood isx the village, 
a group of households bordering upon each other. However, the neigh- 
borhood may also be effective beyond the fixed boundaries of other, in 
particular political, structures. In practice, neighborhood means mutual 
dependence in case of distress, especially when the transportation tech- 
nology is undeveloped. The neighbor is the typical helper in need, and 
hence neighborhood is brotherhood, albeit in an unpathetic, primarily 
economic sense. If the household is short of means, mutual help may 
be requested: the loans of implements and goods free of charge, and 
"free labor for the asking" (Biltarheit) in case of urgent need. This 
mutual help is guided by the primeval popular ethics which is as un- 
sentimental as it is universal: "Do unto others as you would have them 
do unto you." (This is also nicely indicated by the Roman term mutuitm 
for an interest-free loan.) For everybody may get into a situation in which 
he needs the help of others. If a compensation is provided, it consists in 



362 HOUSEHOLD, NEIGHBORHOOD AND KIN GROUP [ Ch. Ill I 

feasting the helpers, as in the typical case of neighborly help for house j 

construction (still practiced in the German East). If an exchange takes i 

place, the maxim applies: "Brothers do not bargain with one another." 
This eliminates the rational market principle of price determination. 

Neighborliness is not restricted to social equals. Voluntary labor 
(Eittarbeii) , which has great practical importance, is not only given to 
the needy but also to the economic powers-tbat-be, especially at harvest 
time, when the big landowner needs it most. In return, the helpers expect 
that he protect their common interests against other powers, and also 
that he grant surplus land free of charge or for the usual labor assistance 
— the ■precariwm was land for the asking. The helpers trust that be will 
give them food during a famine and show charity in other ways, which | 

he indeed does since he too is time and again dependent on them. In ■ j 
time this purely customary labor may become the basis of manorial \ 

services and thus give rise to patrimonial domination if the lord's power ■ 

and the indispensability of bis protection increase, and if he succeeds in j 

turning custom into a right. 

Even though the neighborhood is the typical locus of brotherhood, 
neighbors do not necessarily maintain "brotherly" relations. On the 
contrary: Wherever popularly prescribed behavior is vitiated by personal 
enmity and conflicting interests, hostility tends to be extreme and lasting, 
exactly because the opponents are aware of their breach of common 
ethics and seek to justify themselves, and also because the personal rela- 
tions had been particularly close and frequent. 

The neighborhood may amount to an amorphous social action, with 
fluctuating participation, hence be "open" and intermittent. Eirm bound- " 
aries tend to arise only when a closed association emerges, and this occurs 
as a rule when the neighborhood becomes an economic group proper or 
an economically regulatory group. This may happen for economic rea- 
sons, in the typical fashion familiar to us; for example, when pastures 
and forests become scarce, their use may be regulated in a "co-operative" 
(genossenschaftlich^) manner, that means, moqopolistically. f-jowever, 
the neighborhood is not necessarily an economic, or a regulatory, group, 
and where it is, it is so in greatly varying degrees- The neighborhood 
may regulate the behavior of its members either through an association 
of its own: witness the Flurzwang [the compulsory regulation of tilling 
and crop rotation under the open-field system]; or a regulation may be 
imposed by outsiders (individuals or communities), with whom the 
neighbors are associated economically or politically (for example, the 
landlords of tenement houses). But all of this is not essential for neigh- 
borly social action. Even in the self-sufficient household economy of early 
times, there is no necessary identity among neighborhood, the forest 



2 ] The Neighborhood: Economic Brotherhood 363 

regulations of political communities, especially the village, the territorial 
economic association (for example, the Markgemeinschaft) and the 
polity; they may be related in very diverse ways. The size of the territorial 
economic associations may vary according to the objects they comprise. 
Fields, pastures, forests and hunting grounds are often controlled by dif- 
ferent groups, which overlap with one another and with ihe polity. 
Wherever peaceful activities are the primary means of making a living, 
the agent of joint work, the household, is likely to have control, and 
wherever maintenance depends upon land seized by force, the polity, 
and more so for extensively used land, such as hunting grounds and 
forests, than for pastures and fields. 

Furthermore, the individual types of possessions tend to become 
scarce at different historical stages and hence subject to regulatory associa- 
tion; forests may still be free objects when pastures and fields are already 
economic ones and their use has been regulated and appropriated. 
Hence, diverse territorial associations may appropriate different kinds 
of land. 

The neighborhood is the natural basis of the local community 
(Gemeinde) — a structure which arises only, as we shall see later [cf. ch. 
XVI, "The City"], by virtue of political action comprising a multitude 
of neighborhoods. Moreover, the neighborhood may itself become the 
basis of political action, if it controls a territory such as a village; and in 
the course of organizational rationalization, it may engage in activities 
of all kinds (from public schools and religious functions to the systematic 
settling of necessary crafts), or the polity may impose them as an obliga- 
tion. But the essence of neighborly social action is merely that sombre 
economic brotherhood practiced in case of need. 



3. The Regulation of Sexual Relations in the Household 

We shall now return to the household, the most "natural" of the 
externally closed types of social action. Typically, the development from 
the primeval household communism runs counter to the kind of com- 
munism described in the previous example [in sec. 1], when profits and 
losses were shared in spite of the separation of the households; rather, 
typical is the internal weakening of household communism, that means, 
the progress of internal closure in the face of the continued external 
unity of the household. 

The earliest substantial inroads into unmitigated communist house 
authority proceed not directly from economic motives but apparently 
from the development of exclusive sexual claims of the male over women 



364 HOUSEHOLD, NEIGHBORHOOD AND KIN GROUP [Ch. Ill 

subjected to their authority. This may result in 3 highly casuistic but 
strictly enforced regulation of sex relations, especially jf social action is 
not much rationalized in other respects. It is true that sexual rights some- 
times occur in "communist" form (polyandry), but in all known in- 
stances such poiyandric rights constitute only a relative communism: 
a limited number of men (brothers or the members of a men's house) 
are exclusive co-owners by virtue of the common acquisition of a woman. 

Nowhere do we find unregulated, amorphous sexual promiscuity 
within the house, even if sexual relations between siblings ure a recog- 
nized institution; at least nowhere on a normative basis. On the contrary, 
any kind of communist sexual freedom is most thoroughly banished from 
a house in which there is communist property ownership. The [younger] 
members of such a household could adjust to this because their sexual 
attraction to one another was minimized by having grown up together. 
Subsequent normative elaboration was obviously in the interest of safe- 
guarding solidarity and domestic peace in the face of jealousies. Where 
the members of the house belong to different sihs because of sib exogamy 
and hence would be free to engage in sexual relations, they are never- 
theless forced to avoid one another because house exogamy is older than 
sib exogamy and persists next to it. The beginnings of regulated exogamy 
can perhaps be found in exchange arrangements of households and of 
sibs, which resulted from their division. At any rate, sexual relations are 
even disapproved of among close relatives among whom this would be 
permissible according to the sib code (for example, among very close 
paternal relatives under rules of matrilineal exogamy). As an institution, 
the marriage between siblings and relatives is commonly limited to 
socially prominent families, especially royal houses; its purpose is the 
preservation of economic resources, probably .-ilso the avoidance of strug- 
gles among pretenders, and finally the purity of the blood — hence it is 
a secondary phenomenon. 

As a rule, then, a man acquires exclusive sexual rights over a woman 
when he takes her into his house or enters her house if his means are 
insufficient. Of course, this exclusiveness, too, has often enough been 
precarious vis-a-vis the autocratic head of the house. Notorious are the 
liberties, for example, which the father-in-law of an extended Russian 
family could take up until modern times. Normally, however, the house- 
hold differentiates itself into permanent sexual unions with their off- 
spring. In our times, the household consists of the parents and their 
children, together with the personal servants and at most a spinster rela- 
tive. However, the household of earlier periods was not always very 
large; often it was small if finding sustenance required dispersion. How- 
ever, history has known many households ("extended families") based 



3 ] Attenuation of Domestic Authority 365 

on parent and child relations but comprising grandchildren, brothers, 
cousins and outsiders, to a degree which has become very rare in advanced 
countries. The extended family prevails where a large number of hands 
are required, hence where agriculture is intensive, and also where prop- 
erty is intended to remain concentrated in the interest of social and eco- 
nomic dominance, hence in aristocratic and plutocratic strata. 

Apart from the very early closure of sexual relations within the house- 
hold, the sexual sphere was further narrowed, especially at otherwise low 
levels of cultural differentiation, by structures that overlapped with do- 
mestic authority. In fact, one can say that these imposed the first decisive 
limitations on domestic authority. As blood relationships gain importance, 
incest transcends the house to include other relatives and becomes sub- 
ject to casuistic regulation by the kin group (Sippe), 



4. The Kin Group and Its Economic Effects cm the 
Household 

The kin group is not as "natural" a group as the household or the 
neighborhood. As a rule, its social action is discontinuous and lack> .is 
sociation; in fact, the kin group proves that social action is possible even 
if the participants do not know one another and action is merely p.issive 
(retraining from sexual relations, for example). The kin group presup- 
poses the existence of others within a larger community. It is the natui.il 
vehicle of all fealty (Treue'). Friendship is originally an artificial blood 
brotherhood. The vassal as well as the modern officer are not only sub- 
ordinates but also the lord's brothers, "comrades" (that means, "room- 
mates," originally household members). Substantively, the kin group 
competes with the household in the sphere of sexual relations and in- 
group solidarity; it is a protective group, which substitutes for our detec- 
tive force and vice squad; and it is also a group of expectant heirs made 
up of those former household members who left when it was divided or 
when they married, and of their descendants. Hence with the kin group 
begins inheritance outside the household. Since members are committed 
to blood revenge, the in-group solidarity of the kin group may become 
more important than loyalty toward partiarchal authority. 

We should keep in mind that the kin group is not an extended or 
decentralized household or a superordinate structure uniting several 
households: that may be the case, but as a rule it is not. Whether a 
particular kin group cuts across the households or comprises all members 
depends upon its structure, which may assign father and children to 



366 HOUSEHOLD, NEIGHBORHOOD AND KIN GROUP [ Ch. Ill 

different groups, as we shall see later. Kin membership may not mean 
more than that marriage within the group is prohibited (exogamy); in 
this case the members may have common marks of identification and may 
believe in common descent from a natural object, most of the time an 
animal, which the members are usually not allowed to eat (totemism). 

Furthermore, the kin members are forbidden to engage in comb-it 
with one another; they must practice blood revenge and be collectively 
liable to it, at least in the case of close relatives. Blood revenge in rum 
requires the joint declaration of a feud in case of a homicide and estab- 
lishes the right and the duty of the kin members to receive and to pay a 
compensation (Wergild*). The kin group is also open to Divine revenge 
in case of perjury, since it provides oath-bound witnesses at a trial. In 
this manner the kin group guarantees the security and legal personality 
of the individual. 

Finally, the neighborhood established by a settlement (a village, a 
rural commune of villages — Marhgenossenschaft) may coincide with the 
kin group; then the household is indeed a unit of the kin group. Even if 
this is not the case, the kin members often retain very palpable rights in 
relation to domestic authority: a veto against the sale of property, the 
right of participating in the selling of daughters into marriage and of 
receiving part of the bridal price, the rights of providing a legal guard- 
ian, etc. 

Collective selfhelp is for the kin group the most typical means of re- 
acting to infringements upon its interests. The oldest procedures approxi- 
mating a trial are compulsory arbitration of conflict within the household 
or the kin group, either by the household head or the kin elder who best 
knows the customs, and mutually agreed arbitration "between several 
households and kin groups. The kin group competes with political groups 
as an independent, overlapping group deriving from common descent, 
which may be actual, fictitious or artificially created through blocd 
brotherhood; it is a complex of obligations and loyalties between persons 
who may belong not only to different households but also to different po- 
litical and even language groups- The kin group may be completely un- 
organized, a kind of passive counter-image of the authoritarian house- 
hold. For its normal functioning it does not require a leader with powers 
of control; indeed, as a rule, the kin group is merely an amorphous circle 
of persons who may be identified positively by forming a religious com- 
munity and negatively by their refraining from the violation or con- 
sumption of a joint sacred object (taboo); we shall deal later [ch. VI] 
with the religious rationale for such behavior. It seems scarcely possible 
to assume, as Gierke has done, that kin groups with some kind of con- 
tinuous government are the older form; rather, the reverse is the rule: 



4 ] Economic Effects of the Kin Group 367 

kin groups become associations only when it seems desirable to erect 
economic or social monopolies against outsiders. If the kin group has a 
head and functions as a political group, it may serve originally extraneous 
purposes of a political, military or economic nature; in this case it be- 
comes part of a heterogeneous social structure— witness the gens as a sub- 
division of the curia or the [Germanic] "sibs" as military units. 

* Especially in periods in which social action is otherwise scarcely 
developed, household, kin group, neighborhood and political community 
typically overlap in such a manner that the members of a household and 
a village may belong to different kin groups, and the kin members to 
different political and even language communities. Hence it is possible 
that neighbors or membeis of the same political group and even of the 
same household are expected to practice blood revenge against one 
another. These drastically conflicting obligations were removed only 
when the political community gradually monopolized the use of physical 
force. However, if political action occurs only intermittently, when there 
is an externa! threat or booty seekers associate, the kin group's importance 
and the rationalization of its structure and obligations may approximate 
scholastic casuistry (as for example in Australia). 

The manner in which the kin groups are organized and regulate sex- 
ual relations is important because of the repercussions on the composition 
and the economic structure of the households. Domestic authority over 
a child derives from matrilineal or patrilineal descent, and this in turn 
defines the other households in which the child has a property share, in 
particular access to economic opportunities which these-households ap- 
propriated within economic, status, or political groups. Hence those other 
groups are interested in the manner in which household membership is 
established; in any given case the prevailing order is a resultant of the 
economic and also the political interests of all groups involved. It should 
be clearly understood from the beginning that as soon as a household be- 
comes part of other groups that control economic and other opportunities, 
it cannot freely attribute membership, the less so the more limited these 
opportunities become. Patrilineal or matrilineal descent and their conse- 
quences a*e determined by the most diverse interests, which cannot be 
analyzed here in detail. In the case of matrilineal descent the child is 
protected and disciplined by the mother's brothers, apart from his father, 
and also receives his inheritance from them (avunculate~); the mother 
exercises domestic authority only in rare cases subject to special condi- 
tions. In a patrilineal system, the child is subject to the power of his 
paternal relatives, apart from his father's, and he inherits from them. 
Today kinship and succession are as a rule cognate, that means, there is 
no difference between the father's and the mother's side, whereas do- 



368 HOUSEHOLD, NEIGHBORHOOD AND KIN GROUP [ Ch. HI 

mestic authority is exercised by the father or, if he is not there, often by a 
close relative who is appointed as a guardian and supervised by the public 
authorities; however, in the past patrilineal and matrilincal principles 
were often mutually exclusive. This did not necessarily mean that only 
one applied in a* given group to all households; one principle might apply 
in one household, the other in another one. In die simplest case this 
competition of the two principles originated in property differentiation. 
Like all children, daughters are considered economic assets of the house- 
hold into which they are born. The household decides their disposition. 
The head might offer them to his guests, just like his own wife, or he 
might permit sexual relations temporarily or permanently in exchange 
for goods and services. This "prostitution" of female household members 
accounts for many cases that are subsumed under the imprecise collective 
name of matriarchy (Mutterrecht): Husband and wife each remain 
members of their own household, the children belong to the mother's 
household, and the father is for them an alien who merely pays "ali- 
mony" (in modern terminology) to the household head. Hence husband, 
wife and children do not form a household of their own. 

However, if there is such a household it may have a patrilineal or 
matrilincal basis. The man who can afford to pay cash for a woman takes 
her out of her household and kin group into his own. In this case the 
woman and her children are fully owned by the man's household. How- 
ever, a man who cannot pay for a woman whom he desires must join 
her household, if its head permits the union, either temporarily in order 
to work off her price ("service marriage") or permanently, and then the 
woman's household retains control over her and the children. Thus the 
head of a well-to-do household buys women from less prosperous house- 
holds for himself and his sons (so-called dign marriage) or forces impe- 
cunious suitors to join his own household (fcimi-marriage). Hence patri- 
lineal and matrilincal descent and the domestic authority of the father's 
or the mother's household may ejdst side by side for different persons 
within the same household. In this simple case patrilineal descent is 
always linked to control by the father's household, and vice versa, I his 
relationship grows more complex when the husband takes the wife into 
his household and thus places her under its authoritv, but when matri- 
lineal attribution remains, that means, when the children belong to the 
mother's kin group as her exogamous sex group and are subject to the 
rules of blood revenge and inheritance of her group. As a technical term, 
matriarchy ("mother right") should be restricted to this phenomenon. 
To be sure, as far as we know, matriarchv does not occur in ibis form in 
which the father's relation to the children is extremely rt -'rictcd because 
they are legally aliens in spite of his authoritv. However, tl iv are various 



4 ] Economic Effects of the Kin Group 3 & 9 

intermediate stages: The mother's house may yield her to the father's 
household and yet retain certain rights in her and her children. Fre- 
quently ma tri lineal rules of kin exogamy apply because superstitious fear 
of incest persists; moreover, matrilineal rules of succession are often re- 
tained in varying degrees. This is likely to give rise to many conflicts be- 
tween the two kin groups, the outcome of which depends very much 
on the land holdings, the influence of the village neighborhood and the 
role of military associations. 



,\ OTES 

1 The chapter titles of chs. Ill :md IV and the subheadings were chosen by 
the English editor in an attempt to make clearer the content of the various sec- 
tions and to come closet to Weber's original outline, which envisaged a chapter 
on Household, Oikos and Enterprise," to be followed by "Neighborhood, Kin 
Group and Community -" However, the text reverses some of the chapter se- 
quence, unless the changes were made bv the origina! editors. 

,For another discussion of marriage and kinship in rciation to economic fac- 
tors, see Weber's Economic History, 37-53, and Marianne Weber's Ehefrait v.ndl 
Mutter in der Rechtsentwicklung (1907); for other background literature, see 
bel'W. Soc. of Law, ch, VIII: ii, nn. 18, 70-74. 

2. On this point, see Weber's dissertation: Zur Geschichte der Handehgesell- 
schaften im Mittehher (Stuttgart 1889), reprinted in GAzSW, 312-443, esp. ch. 
Ill ("Die Familicn- ..nd Aibeitsgemeinschaften"). 

3. CI, Eugen Huber, System and Geschichte d, • Schweizer PrivutrechH 
(1893), vol. IV, and Max Huber, Gemeinderschaften der Sckveiz (Bresiau 1897). 



CHAPTE 



K IV 



HOUSEHOLD, ENTERPRISE 
AND OIKOS 



i . The Impact of Economic, Military and Political 
Groups on Joint Property Law and Succession 
in the Household 

Unfortunately, the relationships between kin group, village, the 
"commune" of villages (Markgenossenschaft*) and political association 
belong to the most obscure and least investigated areas of ethnography 
and economic history. Not one case has been completely elucidated, 
neither the primitive stages of civilized peoples nor the so-called primitive 
tribes (A' aturvolkeiO , not even the American Indians, in spite of Mor- 
gan s research. The neighborhood organization of a village may originate 
in a given case in the division of the inheritance of a household. When 
nomadic cultivation is replaced by permanent agriculture, land may be 
assigned on a kinship basis, since the latter is usually taken into account 
in military organization; thus the territory of a village (Dorfgentarkung) 
may be considered kin property. This seems to have happened in ancient 
Germanic times, since the sources speak of genealogiae as the owners of 
village territory even when it appears that the land was not occupied by 
a noble family with its retainers. However, this was probably not the rule. 
As far as we know, the military bodies of a hundred or a thousand men, 
which developed from cadres into territorial units, were not unambigu- 
ously linked to the kin groups, and neither were the latter to the "rural 
communes" (Markgemem$ckaften~). 

We can make only three generalizations : ( i ) Land may be primarily 
a place to work on. In this case all land and all yield belong to the 
women's kin groups, as long as cultivation is primarily women's work. 

[370] 



i ] Effect of Groups on Household Property & Succession 371 

The father does not leave any land to his children, since it is handed 
down through the mother's house and kin group; the paternal inheritance 
comprises only military equipment, weapons, horses and tools of male 
crafts. In pure form this case is rare. (2) Conversely, land may be con- 
sidered male property won and defended by force; unarmed persons, 
especially women, cannot have a share in it. Hence, the father's local 
political association may be interested in retaining his sons as military 
manpower; since the sons join the father's military group, they inherit . 
the land from him, and only movable property from the mother.. (3)- The 
neighborhood composed of a village or a "rural commune" (Marfegewos- 
senschaft) always controls the land gained through joint deforestation, 
that means, through men's work, and does not permit its inheritance by 
children who do not continuously fulfill their obligations toward the 
association. The clash of these practices, and possibly of even more com- 
plex ones, may have very diverse results. However, we cannot make a 
fourth generalization that might suggest itself in view of these practices: 
that the primarily military character of a group points unambiguously to 
the predominance of the father's house and of male ("agnatic") family 
and property attribution. Rather this depends on the type of military 
organization. The able-bodied age-groups may permanently live in bar- 
racks; typical examples are the "men's house" described by S^iurtz or the 
Spartan syssttiae. 1 In this case the men's absence frequently establishes 
the household as a "maternal grouping" in which children and property 
are attributed to the maternal household, or the woman achieves at least 
a relative domestic independence, as it is reported for Sparta. The 
numerous means that were specifically invented to intimidate and rob 
women — for example, the periodic predatory exploits of the duk-ctuk — * 
are an attempt by the men who have left the household to strengthen 
their threatened authority. 

However, when the members of a military caste were landowners 
living dispersed in the countryside, the patriarchal and agnatic structure 
of household and kin group became usually predominant. As far as our 
historical knowledge goes, the empire-building peoples of the Far East 
and India, the Near East, the Mediterranean and the European North 
developed patrilineal descent and exclusively agnatic attribution of kin- 
ship and property, contrary to a frequent assumption, the Egyptians also 
had patrilineal descent even though they did not have agnatic attribution. 
The major reason for this phenomenon is that great empires cannot be 
naintained in the long run by small monopolistic, staff-like groups of 
warriors who live closely together in the manner of "men's houses"; in 
i natural economy empire-building requires as a rule the patrimonial 
ind seigneurial control pf the land, even if this subjection, proceeds from 



3 71 HOUSEHOLD, ENTERPRISE AND OIKOS [ Ck. IV 

groups of closely settled warriors, as in Antiquity. The manorial adminis- 
tration develops quite naturally out of the patriarchal household that is 
turned into an apparatus of domination; everywhere the manor originates 
in patriarchal authority. Hence, there is no serious evidence for the 
assertion that the predominance of patrilineal descent among those 
peoples was ever preceded hy another order, ever since kinship relations 
among them had heen regulated by any law at all. Particularly worthless 
is the hypothesis of a once universal prevalence of matriarchal marriage. 
This construct confuses very heterogeneous phenomena: it blurs the dif- 
ference between primitive conditions under which parent-child relations 
are not legally regulated at all, hence the mother is indeed closer to the 
chUdren whom she feeds and rears, and a legal arrangement deserving 
the name "matriarchy" QAutterrecht), Equally erroneous is the idea 
that marriage by abduction was a universal intermediate stage between 
"matriarchy" and "patriarchy." A woman can be legitimately acquired 
from another household only through exchange or purchase. Abduction 
results in feud and restitution. It is true that for the hero the abducted . 
woman is a trophy, just like the scalp of the enemy, but we cannot say 
that actual abduction was a stage in legal history. 

Because of the very predominance of patriarchy, property law de- 
velops in the great empires in the direction of steadily weakening un- 
limited -patriarchal power. Since legal restraints were originally missing, 
no distinction was made between "legitimate" and "illegitimate" chil- 
dren; in the Germanic law of the Middle Ages the master's right to 
identify ''his" child was a residue of the once unlimited power of. the 
patriarch. This state of affairs' was definitely changed only with the inter- 
vention of political and economic groups, which made membership de-» 
pendent upon "legitimate" descent, that means, on permanent relations 
with women from their own circle. The most important stage in the 
development of this principle, the very distinction between "legitimate" 
and "illegitimate" children and the protection of the right of succession 
for the former, is usually reached when the propertied or status-privileged '• 
strata no longer regard women merely as chattel and begin to protect 
by contract daughters, and their children, against the original discretion 
of the buyer. From then on his property is supposed to be inherited only 
by the children from this marriage. Hence the motivating force of this 
development is not the man's but the woman's interest in "legitimate" 
children. As status aspirations and the corresponding costs of living rise, 
the woman, who is now regarded as a luxury possession, receives a 
dowry; at the same time this represents the compensation for her share in 
the household — a purpose clearly stipulated in ancient Oriental and 
Hellenic law — and provides her with the material means of destroying the 



i ] Effect of Groups on Household Property & Succession. 373 

husband's unlimited discretion, since he must return the dowry if he 
divorces her. In time, this purpose was achieved, in different degrees and 
not always through formal law, but often so successfully that only an 
endowed marriage was considered a marriage proper (Jhrtfafy* yafu>* in 

We cannot deal here further with the development of jo,nt property 
' rights. Decisive changes occur wherever the military importance of land 
declines as a possession taken by force or as the basis of maintaining 
able-bodied men (capable of equipping themselves); then real estate can 
be used primarily for economic purposes, especially in the cities, and 
daughters too can succeed to land. The compromise between the interests 
of husband and wife and of their kin varies greatly depending on 
whether the family lives primarily from joint labor earnings or from rent- 
producing property. 

In the Occidental Middle Ages the institution of joint property pre- 
vailed in the former case and that of joint administration (actually the 
administration and utilization of the wife's property by the husband) in 
the latter; in addition, since the feudal families did not want to release 
any land, widows were maintained through a rent attached to family 
holdings, as it occurred typically in England (dower marriage). For the 
rest the most diverse determinants may come into play. The social con- 
ditions of the Roman and English nobility were similar in some respects, 
but very different in others. Whereas in ancient Rome the wife became 
economically and personally emancipated by virtue of the freely dis- 
solvable marriage, yet was completely unprotected as a widow and had no 
legal control whatsoever over her children, in England the wife remained 
under coverture which prevented any economic and legal independence 
and made it almost impossible for her to dissolve the feudal "dower mar- 
riage," The difference seems to have been owing to the more developed 
urban character of the Roman nobility, on the one hand, and the impact 
of Christian patriarchalism in the English family on the other. Whereas 
feudal marriage law persisted in England and French marriage law was 
shaped by petty-bourgeois and militaristic considerations — in the Code 
- Napoleon through the personal influence of its creator — , bureaucratic 
states (such as Austria and Russia) have minimized sex differences in the 
joint property law; this levelling tends to go furthest where militarism has 
receded most in the ruling classes. With the advance of the market 
economy the marital property structure is also strongly influenced by the 
need to protect creditors. The manifold arrangements deriving from 
these factors do not belong in the present context. 

The "legitimate" marriage that developed out of the wife's interests 
does not necessarily lead to a speedy adoption of monogamy. The wife 



3 7 4 HOUSEHOLD, ENTERPRISE AND OOCOS [ Ch. W : 

whose children are privileged in relation- to succession may be distin- : 
guished as the "chief wife" in a circle of other wives, as it was the case j 
in the Orient, in Egypt and in most civilized Asian areas. This type of 1 
semi-polygamy was of course everywhere a privilege of the propertied 

■* strata. The ownership of several wives is lucrative only when women still 

do most of the agricultural work, at most when their textile production » 
especially profitable (as is still assumed in the Talmud); for example, the 
possession of a large number of women is considered a profitable capital j 
investment by the chieftains in Caffraria; this presupposes, of course, that j 
the man has the necessary means to buy women. But polygamy is too' I 
cosdy for all middle-income groups in an economy in which male work \ 
predominates, and especially in social strata in which women work only ' 

: t as dilettantes or for luxury needs in jobs considered beneath the dignity \ 

| of freemen. Monogamy was institutionalized first among the Hellenes 

(even though the royal families did not consistently adhere to it as late 
as the period of the Diadochs) and among the Romans; it fitted into the = 
household structure of the emergent urban patriciate. Subsequendy 
Christianity raised monogamy to an absolute norm for ascetic reasons, in 
contrast to at least the early stages of all other religions. In the main, 
polygamy persisted in those cases in which the stricdy patriarchal struc- 

i, ture of political authority helped to preserve the discretion of the house- 

: , hold head. 

The institution of the dowry affects the development of the house- 
hold in two ways: CO As against the children of concubines, the 
"legitimate" children achieve special legal status as the sole inheritors of 
the paternal property; (2) the husband's economic position tends to he 
differentiated according to the wife's dowry, which in turn depends on 
her family's wealth. It is true that the dowry becomes formally subject to 
the husband's discretion (especially in Roman law), but in fact it tends 
to be set aside as a "special account." Thus the calculating spirit enters 
into the relations between the family members. 

However, at this stage other economic motives have usually begun 
* this dissolution of the household. Undifferentiated communism was 

economically deflected at such an early stage that it existed historically 
perhaps only in marginal cases. In principle, artifacts such as tools, anas, 
jewelry and clothes may be used by their producer alone or preferentially, 
and they are inherited not necessarily by the group but by other qualified 
individuals. (Examples are riding horse and sword, in the Middle Ages 
the Heergewate, the Gerade, etc.) These incipient forms of the individ- 
ual right to succession developed very early even under authoritarian 
I house communism; however, their beginnings probably antecede the 

household itself and are found wherever tools are produced by individ- 



i ] Effect of Groups on Household Property & Succession 375 

uals. In the case of arms, the same development wai probably owing to 
the intervention of military powers interested in equipping the most 
able-bodied men. 



2. The Disintegration of the Household: The Rise of the 
Calculative Spirit and of the Modern Capitalist 
Enterprise 

In the course of cultural development, the internal and external de- 
terminants of the weakening of household authority gain ascendancy. 
Operating from within, and correlated with the quantitative growth of 
economic means and resources, is the development and differentiation of 
abilities and wants. With the multiplication of life chances and oppor- 
tunities, the individual becomes less and less content with being bound 
to rigid and undifferentiated forms of life prescribed by the group. In- 
creasingly he desires to shape his life as an individual and to enjoy the 
fruits of his own abilities and labor as he himself wishes. 

The disintegration of the household authority is furthered by a num- 
ber of other groups. One factor is the fiscal interest in a more intensive 
exploitation of the individual taxpayer. These groups may work contrary 
to the household's interests in keeping property intact for the sake of mili- 
tary self-equipment. The usual consequence of these disintegrative tend- 
encies is, in the first place, the increasing likelihqod of division in case 
of inheritance or marriage of children. In the early times of relatively 
primitive agriculture, employment of mass labor was the only means of 
increasing land yields. As a result, the household grew in size. However, 
the development of individualized production brought about a decrease 
in the size of households, which continued until the family of parents 
and children constitutes the norm today. 

The function of the household has changed so radically that it is be- 
coming increasingly inopportune for an individual to join a large com- 
munistic household. An individual no longer gets protection from the 
household and kinship groups but rather from political authority, which 
exercises compulsory jurisdiction. Furthermore, household and occupa- 
tion become ecologically separated, and the household is no longer a unit 
of common production but of common consumption. Moreover, the in- 
dividual receives his entire education increasingly from outside his home 
and by means which are supplied by various enterprises: schools, book- 
stores, theaters, concert halls, clubs, meetings, etc. He can no longer regard 
the household as the bearer of those cultural values in whose service he 
places himself. 



3 7 6 HOUSEHOLD, ENTERPRISE AND OIKOS [ Ch. IV 

This decrease in the size of households is not due to a growing "sub- 
jectivism," understood as a stage of social psychological development, hut 
to the objective determinants of its growth. It should not be overlooked 
that there exist also hindrances to this development, particularly on the 
highest levels of the economic scale. In agriculture, the possibility of 
unrestricted splitting up of landed estates is tied in with certain tech- 
nological conditions. An integrated estate, even a large one, with valuable 
buildings on it, can be partitioned only at a loss. The division is tech- 
nically facilitated by mixed holdings and village setdement. Isolated loca- 
tion makes such a partition difficult. Separate farms and large estates, 
operated with an intensive expenditure of capital, therefore tend to he 
inherited by one individual. A small farm, operated with intensive ex- 
penditure of labor ,on scattered holdings, has a tendency to continuous 
splintering. In addition, the separate farm and large estate are much 
more suitable objects from which to extr&ct payments in favor of movable 
property [i.e., money lenders] in the form of permanent or long-term 
mortgages, and they are thus kept intact for the benefit of the creditors. 

Large property-holding, being a determinant of position and prestige, 
is conducive to the desire to keep it intact in the family. A small rarrn, on 
the other hand,' is merely a place where work is done. There is an ap- 
positeness between the seigneurial standard of life, with its fixed con- 
ventions, and the large household. Given the spaciousness of, say, a 
castle and the almost inevitable "inner distance" even between the 
closest relatives, these large households do not restrain the freedom that 
the individual demands to such an extent as does the middle-class house- 
hold, which may consist of an equally large number of persons but 
occupies a smaller space and lacks the aristocratic sense of distance, and 
whose members, moreover, typically have far more differentiated life 
interests than do those of an estate-seated gentry family. Today, the 
large household provides an appropriate way of life, aside from the 
seigneurial one, only for the highly intense ideological community of a 
sect, whether religious, social-ethical or artistic — corresponding to the 
monasteries and the cloister-like communities of the past. 

Even where the household unit remains outwardly intact, the internal 
dissolution of household communism by virtue of the growing sense of 
calculation CRechenhaftigkeit) goes on irresistibly in the course of cul- 
tural development. Let us look at the consequences of this factor in 
somewhat greater detail. 

As early as in the large capitalistic households of medieval cities — 
for example, in Florence — every person had his own account. He has 
pocket money (ctanari horsinghy) at his disposal. Specific limits are set 
for certain expenditures — for example, if he invites a visitor for a stay. 
The member must setde his account in the same way as do-partners in 



2. ] "Disintegration of the Household by the Enterprise 3 7 7 

any modem trading company. He has capital shares "in" the house and 
[separate "outside"] wealth Cfuori della compagnia) which the house con- 
trols and for which it pays him interest, but which is not regarded as 
working capital proper and therefore does not share in the profit. 1 Thus, 
a rational association takes the place of the "natural" participation in the* 
household's social action with its advantages and obligations. The in- 
dividual is born into the household, but even as a child he is already a 
potential business partner of the rationally managed enterprise. It is evi- 
dent that such conduct became possible only within the framework of 
a money economy, which therefore plays a crucial role in the internal 
dissolution of the household. The money eonomy makes possible an ob- 
jective calculation both of the productive performances and of the con- 
sumption- of the individuals, and for the first time makes it possible for 
them to satisfy their wants freely, through the indirect exchange medium 
of money. 

The parallelism of money economy and attenuation of household 
authority is, of course, far from complete. Domestic authority and house- 
hold are relatively independent of economic conditions, in spite of the 
latters' great importance, and appear "irrational" from an economic point 
of view; in fact, they often shape economic relationships because of their 
own historic structure. For example, the patriapotestas, which the head 
of a Roman family retained until the end of his life, had economic and 
social as well as political and religious roots (the preservation of a pa- 
trician household, military affiliation according to kinship and, probably, 
house, and the father's position as house priest). The patria potestas 
persisted during the most diverse economic stages before it was finally 
attenuated under the Empire, even toward the children. In China, the 
same situation was perpetuated by the principle of filial piety, which was 
carried to an extreme by the code of duties and furthered by the state 
and the bureaucratic status ethic of Confucianism, in part for reasons of 
political domestication. This principle led not only to economically un- 
tenable consequences (as in the mourning regulations) but also to po** 
htically questionable results (for example, large-scale office vacancies, 
because piety toward the late father — originally, fear of the dead man's 
envy — forbade the use of his property and the occupation of his office). 

Economic factors originally determined to a large extent whether a 
property was inherited by one person or principal heir or whether it was 
divided. This practice varies with economic influences, but it cannot be 
explained solely by economic factors, and especially not by modem eco- 
nomic conditions. This was demonstrated particularly in the recent 
studies of Sering and others. 4 Under identical conditions and in con- 
tiguous areas, there exist often quite disparate systems, affected especially 
by different ethnic composition, e.g., Poles and Germans, llie fai- 



378 ' HOUSEHOLD, ENTERPRISE AND OIKOS [ Ck. IV 

reaching economic consequences of these differing .structures were caused 
by factors that could be regarded as economically "irrational" from the 
very beginning, or that became irrational as a consequence of changes in 
economic conditions. 

In spite of all, the economic realities intervene in a compelling 
manner. First, there are characteristic differences depending on whether 
economic gaih is attributed to common work or to common .property. If 
the former situation obtains, the household authority is usually basically 
unstable, no matter how autocratic it may be. Mere separation from the 
parental household and the establishment of an independent household is 
sufficient for a person to he set free from the household authority. This is 
mostly the case in the large households of primitive agricultural peoples. 
The emancipatio legis Saxonicae of the German law clearly has its 
economic foundation in the importance of personal labor, which pre- 
vailed at the time. 

On the other hand, the household authority is typically stable wher- 
ever ownership of livestock, and property in general, forms ~the prime 
economic basis. This is particularly true when land ceases to be abundant 
and becomes a scarce commodity. For reasons already alluded to, family 
and lineage cohesion is generally an attribute of the landed aristocracy. 
The man without any landed property or with only little of it is also 
without lineage group. 

The same difference is to be found in the capitalistic stage of de- 
velopment. The large households of Florence and other parts of northern 
Italy practiced the principle of joint responsibility and of maintaining 
the property intact. In the trading places of the Mediterranean, especially 
in Sicily and southern Italy, the exact opposite was the case: each adult 
member of the household could at any time request his share while the 
legator was still alive. Nor did joint personal liability to the outsiders 
exist. In the family enterprises of northern Italy, the inherited capital 
represented the basis of economic power to a greater degree than did the 
personal business activities of the partners. The opposite was true in 
southern Italy, where common property was treated as, a product of com- 
mon work. With the increasing importance of capital, the former practice 
gained ascendancy. In this case, the capitalist economy, a "later" stage in 
terms of a theory of development starring with undifferentiated social 
action, determines a theoretically "earlier" structure in which the house- 
hold members are more tighdy bound to the household and subjected 
to household authority. 

However, at the same time a far more significant, and uniqttely Oc- 
cidental, transformation of domestic authority and household was under 
wayin these Florentine and other business-oriented medieval houses. 



2 ] Disintegration of the Household hy the Enterprise $7 9 

The entire economic arrangements of such large households were peri- 
odically regulated by contract. Whereas, originally, the personal funds 
and the business organisation were regulated by the same set of rules, 
the situation gradually changed. Continuous capitalist acquisition became 
a special vocation performed in an increasingly separate enterprise. An 
autonomous rational association emerged out of the social action of the 
household, in such a way"that the old identity of household, workshop 
and office fell apart, which had been taken for granted in the un- 
differentiated household as Well as the ancient, oikos, to be discussed in 
the next section. First, the household ceased to exist at a necessary basis 
of rational business association^ Henceforth, the partner was not neces- 
sarily — or typically — a house member. Consequently, business assets had 
to be separated from the private property of the partners. Similarly, a 
distinction began to be made between the business employees and the 
domestic servants. Above all, the commercial debts hid to be distin- 
guished from the private debts of the partners, and joint responsibility 
had to be limited to the former, which were identified as such by being 
'contracted under the "firm," the business name. 

This whole development is obviously a precise parallel to the separa- 
tion of the bureaucratic office as a "vocation" from private life, the 
"bureau" from the private household,, the official assets and liabilities 
from private property, and the official dealings frora private-tlealings; this 
will be discussed in the analysis of authority [chapter XI]. The capitalist 
enterprise, created by the household which eventually retreats from it, ' 
thus is related from the very beginning to the "bureau" and the now 
obvious bureaucratization of the private economy. 

But the factor of decisive importance in this development is not the 
spatial differentiation or separation of the household from the work-shop 
and the store. This is rather typical of the bazaar system of the Islamic 
cities in the Orient, which rests throughout on the separation of the casde 
{kasbah), bazaar (sufe), and residences. What is crucial is the separation 
of household and business for accounting and legal purposes, and the 
development of a suitable body of laws, such as the commercial register, 
elimination of dependence of the association and the firm upon the 
family, separate property of the private firm or limited partnership, and 
appropriate laws on bankruptcy. Tnis fundamentally important develop- 
ment is the characteristic feature of the Occident, and it is worthy of 
note that the legal forms of our present commercial law were almost all 
developed as early as the Middle Ages — whereas they were almost en- 
tirely foreign to the law of Antiquity with its capitalism that was quanti- 
tatively sometimes much more developed. This hi one of the many 
phenomena characterizing most clearly the qualitative uniqueness flf the . 



380 HOUSEHOLD, ENTERPRISE AND OIKOS [ Ch. IV 

development of modern capitalism, since both the concentration of the 
family property for the purpose of mutual economic support and the de- 
^^elopment of a "firm" from a family name existed, for example, in China 
"~ as well. There, too, the joint liability of the family stands behind the 
debts of the individual- The name used by a company in commercial 
^^--transactions does not provide information about the actual proprietor: 
there, too, the "firm" is related to the business organization and not to 
the household. But the laws on private property and bankruptcy as they 
were developed in Europe seem to be absent in China, where two things 
are* of special relevance: Association and credit, until the modern era, 
were to a large degree dependent on the kinship group. Likewise, the 
keeping of the property intact in the well-todo kinship groups and the 
S mutual granting of credit within the kinship groups served different pur- 
poses. They were concerned not with capitalistic profit but with raising 
money to cover the costs of family members' preparation for the examina- 
tions and afterwards for the purchase of an office. The incumbency of 
the office* then offered the relatives an opportunity to recover their ex- 
penses with a profit from the legal and illegal revenues that the office 
afforded. Furthermore, these relatives could benefit from the protection 
of the office-holder. It was the chances of the politically rather than 
economically determined gain that were conducive to the "capitalistic" 
cohesion of the family, especially one that was well-off economically. 

The capitalistic type of association which corresponds to our joint- 
stock company and is completely detached, at least formally, from kin- 
ship and personal ties has its antecedents in Antiquity only in the area 
of politically oriented capitalism, i.e., in companies of tax-farmers. In 
the Middle Ages, such associations were also organized in part for colo- 
'" nizing ventures — such as the big partnerships of the maone in Genoa 
^ — and in part for state credit — such as the Genoese group of creditors 
which for all practical purposes held the municipal finances under 
sequester. In the realm of private enterprise, a purely commercial and 
capitalistic type of association initially developed only in the form of 
ad hoc groupings in long-distance trade, such as the commenda asso- 
ciation which can be found already in Old Babylonian law and later 
quite universally: A financier entrusts his capital to a travelling mer- 
chant for a concrete voyage, with profit or loss distribution on this 
basis. This is the form typical for the period of "intermittent trade" 
£Gelef£nheit$handeO. Enterprises in the form of joint-stock corpora- 
tions which were monopolistically privileged by the political powers, 
especially colonial undertakings, constituted the transition to the applica- 
tion of such organizational types also in purely private business. 



3 ] The Alternative Development: The Oikos 3 8 i 

3. The Alternative Development: The Oikos 

These kinds of undertakings which, as the basis of a capitalist enter- 
prise, constitute its most radical separation from the original identity with 
the household do not particularly concern us at this point. Rather, we 
shall turn to a radically different way in which a household may evolve. 
The disintegration of the household and of domestic authority because 
of exchange with the outside, and the resulting rise of the capitalist 
enterprise proceed in juxtaposition to the household's internal evolution 
into an oikos, as Rodbertus called it.™ This is not simply any large house- 
hold or one which produces on its own various products, agricultural or 
industrial; rather, it is the authoritarian household of a prince, manorial 
lord or patrician. Its dominant motive is not capitalistic acquisition but 
the lord's organized want satisfaction in kind. For this purpose, he may 
resort to any means, including large-scale trade. Decisive for him is the 
utilization of property, not capital investment. The essence of the oikos 
is organized want satisfaction, even if market-oriented enterprises are 
attached to it. Of course, there is a scale of imperceptible transitions be- 
tween the two modes of economic orientation, and often also a more or 
less rapid transformation from one into the other. In reality, if there is a 
relatively developed technology, the oikos is rarely a purely collective - 
natural economy; for it can exist purely only if it permanently eliminates 
all exchange, and practices, or at least aims at, autarky, hence if it is a 
self-sufficient economy so far as possible. In this case an apparatus of 
house-dependent labor, which often is highly specialized, produces all 
the goods and personal services, economic, military and sacral, which 
the ruler requires. His own land provides the raw materials, his work- 
shops with their personally unfree labor supply all other materials. The 
remaining services are provided by servants, officials, house priests and 
warriors. Exchange takes place only if surplus is to be dumped or if 
goods simply cannot be procured in any other way. This state of affairs 
was approximated to a considerable extent by the royal economies of the 
Orient, especially of Egypt, and to a lesser degree by the households of 
the Homeric aristocrats and princes; those of the Persian and Frankish 
kings also appear quite similar. In the Roman empire the landed estates 
moved increasingly in this direction as they grew in size, the slave supply , 
fdl off and capitalist acquisition was curbed by bureaucracy and liturgy. 
But the medieval manor took the opposite course with the increasing 
importance of trade, the cities aid the money economy. However, in all 
these cases the oikos was never really self-sufficient. The Pharaoh en- 
gaged in foreign trade just as did the majority of the early princes and 
aristocrats of the Mediterranean; their treasuries depended heavily upon 



382 HOUSEHOLD, ENTERPRISE AND OIKOS [ Ch. IV 



trade proceeds. As early as the Frankish kingaom the seigneurs received A 
substantial amounts of money or various tributes which had cash-value. ■' 
The capitularia took for granted that the royjal fisci were free to sell 1 
whatever was not needed by the court and the army. In all better known 
cases only a part of the unfree work-force of the big owners of land and 
people was completely tied to their household. Those most stricdy at- ■ 
tached to the household were the personal servants and the workers who ; 
labored in the master's self-sufficient household and were wholly main- ' 
tained by him: the case of autarkic utilization of labor. However, an- 
other group of strictly attached workers consists of those who produced. ; 
for the market; the Carthaginian, Sicilian and Roman plantation owners ■ 
employed their barrack slaves in this fashion, as did the father of ; 
Demosthenes with the slaves in his two ergasteria or, in modem times, ; 
the Russian landlords with the peasants in their factories: these are cases 
of the capitalist utilization of unfree labor. However, many slaves on the 
plantations and in the ergasteria were bought on the market, hence they 
were not "produced" in the household- Unfree workers born in the 
master's household presuppose some kind of unfree "family," and this 
implies an attenuation of attachment and normally also of the full ex- 
ploitation of labor power. Therefore, the majority of these hereditarily 
unfree workers is not employed in centralized enterprises, bat surrenders 
only part of their work capacity to the master, and pays him more or less 
arbitrary and traditionally fixed taxes in kind or in coin. Whether, the 
master prefers to use his unfree workers as a work-force or as a source of 
revenue depends above all on what yields most to him in a given situa- 
tion. Barrack slaves without families can be replaced only if they are 
very cheap and plentiful; this presupposes continuous slavery wars and .;. 
low food costs (a Southern climate). Hereditarily attached peasants, more- 
over, can pay money taxes only if there is a (local) market, and this in 
turn requires a degree of- urban development. Where this was low, and 
the harvest yield could be fully used only through export, as in the 
German and European East at the beginning of modem times (in con- j 
trast to the West) and in the "Black Earth" regions of Russia in the 
nineteenth century, the forced labor of the peasants was the only way of 
making money. In this way large-scale market-oriented enterprise de- 
veloped within the oikos. The owner of an oikos may become almost 
indistinguishable, or wholly identical, with a capitalist entrepreneur, if 
he establishes large industrial undertaking with his own unfree labor, 
or rented unfree or even free workers; he may use the latter two groups 
either partly or exclusively, and he may run his own or rented ergasteria. 
A major example for this transformation are the creators of the Silesian 
starost [i.e., village steward] industries.* 



3 ] The Alternative Development: The Oikos . 3^3 

Ultimately, the oikos is defined only by the rent-producing utilization 
of property, but in terms of the owner's primary interest this meaning 
may become practically indistinguishable from, or outright identical 
with, entrepreneurial capital proper. The manorial origin of the starost- 
industry is visible only because of the particular combination of enter- 
prises: large-scale lumbering with brick-yards, distilleries, sugar re- 
fineries, coal mines, that means, of enterprises that are not integrated, 
along technically or economically suggested, horizontal or vertical lines, 
like the modern combines and mixed firms. However, a manorial lord 
who adds a foundry or a steelmill to his coal mines, or a lumbermill and 
papermill to his lumbering operations may in practice bring about the 
same result. Only the starting point, not the end product are different. 
In the ancient ergasteria, too, we find incipient combinations based On 
the possession of raw materials. The father of Demosthenes, who 
descended from a family of Attic merchants, was an importer of ivory 
which he sold ^» pwXaptvm [i.e., to anyone desiring it, to any comer] and 
which was used as inlay for knife handles and furniture. He eventually 
trained slaves to manufacture knives in his own workshop and, in addi- 
tion, had to take over the ergasterion, that means, mostly the slaves, of a 
bankrupt cabinet-maker. He combined these holdings into both a cutlery 
and a furniture ergasterion. The ergasterion developed further during 
the Hellenistic period, especially in Alexandria, up until early Islamic 
times. The use of unfree craftsmen as a source of rent was widely known 
throughout Antiquity, both in the Orient and the Occident, during the 
early Middle Ages, and in Russia until the emancipation of the serfs. 
The master may rent his slaves, as Nikias did with masses of unskilled 
slaves for the mine-owners. He may turn them into skilled craftsmen, a 
practice found in all Antiquity, from a contract in which [the Persian] 
crown prince Kambyses [6th century S.C.] is mentioned as the owner 
of the trainer, up to the [late Roman] pandects, but it is also found in 
Russia as late as the i8th and 19th century. The master may also leave 
it to the slaves, after he arranged for their training, to work for their own 
account in exchange for a rent (Greek: apopkora, Babylonian: mandaku, 
German: Hahsteuer, Russian: obrok). The master may also provide 
them with a workshop and capital equipment (jpeculmwi) as well as 
working capital (merx fecuUaris). Historically, we find all imaginable 
transitions from almost total mobility to complete regimentation in bar- 
racks. A more detailed description' of the "enterprises" emerging within 
the oikos and run by either the master or the unfree belongs into a dif- 
ferent set of topics. However, the transformation of the oikos into a 
patrimonial rulership will be discussed in the analysis of the forms of 
domination. 



3§4 



HOUSBHOLD, ENTERPRISES AND OIKOS [ Ch. IV 

NOTES 



i. Heinrich Schurtz, AUershlassen und Mannerbiinde (1902)- (W) — For 
further literature, seeSoc. of Law, ch. VHI:«,n. 13. 

2. Duk-Duk: secret society of the New Britain Archipelago N,E. of New 
Guinea. Cf. Graf von Pfeil, "Duk-Duk," 27 Journal of Anthropol. Institute 181; 
E. A. Weber, The Duk-Duk (1019)- (Rh) For a more detailed description of the 
Duk-Duk, see below, ch. IX:2. 

3. Cf. Weber, HandehgeseUschaften, ch. V, in GAzSW, 41 iff. 

4. See, e.g., Max Serine et al., Die Vererbung des Itindlichen Grundbesitzes 
im Kbnigreich Preussen (Berlin: Parey, 1908). Cf. also GA2SW, 463^ 

5. Karl Johann Rodbertus (1805-75), w &° champjoned a conservative form 
of socialism, advanced the theory that all of Antiquity should be classified as falling 
into the stage of the "otkos economy," a concept created by him; cf. Weber, 
Agrarverhaitnisse, in GAzSW, 7, and supra, Part One, ch. II, n. 34. 

6. The term could not be traced, but elsewhere Weber refers to "the typical 
starost-industry of Silesia and Bohemia — thus styled, as is well known, by Engel — 
which is a form of 'wealth-utilization,' as contrasted to the 'capital -utilization' of 
bourgeois industry . . ." (AfS, Vol. 38 [1914], 544). The reference might be to the 
famous Prussian statistician Ernst Engel (1 821-1896). On this phenomenon and 
the origin of Silesian and Bohemian linen industry, see also Economic History, 104; 
Arthur Sate, Geschichte der bbhmischen Industrie in der Neuzeit (Munich: 
Duncker&Humblot, 1913), 365-383. 



V 



CHAPTER 

ETHNIC GROUPS 

i . "Race" Membership 1 

A much more problematic source of social action than the sources 
analyzed above is "race- identity": common inherited and inheritable 
traits that actually derive from common descent. Of course, race creates a 
"group" only when it is subjectively perceived as a common trait: this 
happens only when a neighborhood or the mere proximity of racially 
different persons is the basis of joint (mostly political) action, or con- 
versely, when some common experiences of members of the same race 
are linked to some antagonism against members of an obviously different 
group. The resulting social action is usually merely negative: those who 
are obviously different are avoided and despised or, conversely, viewed 
with superstitious awe. Persons who are externally different are simply 
despised irrespective of what they accomplish or what they are, or they 
are venerated superstitiously if they are too powerful in the long run. In 
this case antipathy is the primary and normal reaction. However, this 
antipathy is shared not just by persons with anthropological similarities, 
and its extent is by no means determined by the degree of anthropolog- 
ical relatedness; furthermore, this antipathy is linked not only to in- 
herited traits but just as much to other visible differences. 

If the degree of objective racial difference can be determined, among 
other things, purely physiologically by establishing whether hybrids re- 
produce themselves at approximately normal rates, the subjective aspects, 
the reciprocal racial attraction and repulsion, might be measured by find- 
ing out whether sexual relations are preferred or rare between two 
groups, and whether they are carried oh permanently or temporarily and 
irregularly. In all groups with a developed "ethnic" consciousness the 
existence or absence of intermarriage (jdofimibiwn) would then be a 
normal consequence of racial attraction or segregation. Serious research 
on the sexual attraction and repulsion between different ethnic groups 
is only incipient, but there is not the slightest doubt that racial factors, 

[J85I 



J 



386 ETHNIC GROUPS [ Ck. V 

that means, common descent, influence the incidence of sexual relations 
and of marriage, sometimes decisively. However, the existence of several 
million mulattoes in the United States speaks clearly against the assump- 
tion of a "natural" racial antipathy, even among quite different races. 
Apart from the laws against biracial marriages in the Southern states, 
sexual relations between the two races are now abhorred by both sides, 
but this development began only with the Emancipation and resulted 
from the Negroes' demand for equal civil rights. Hence this abhorrence 
on the part of the Whites is socially determined by the previously 
sketched tendency toward the monopolization of social power and honor, 
a tendency which in this case happens to be linked to race. 

The conttubium itself, that means, the fact that the offspring from a 
permanent sexual relationship can share in the activities and advantages 
of the father's political, economic or status group, depends on many cir- 
cumstances. Under undiminished patriarchal powers, which we treat 
elsewhere, the father was free to grant equal rights to his children from 
slaves. Moreover, the glorification of abduction by the hero made racial 
mixing a normal event within the ruling strata. However, patriarchal 
discretion was progressively curtailed with the monopolistic closure, by 
now familiar to us, of political, status or other groups and with the 
monopolization of marriage opportunities; these tendencies restricted the 
connubium to the offspring from a permanent sexual union within the 
given political, religious, economic and status group. This also produced 
a high incidence of inbreeding. The "endogamy" of a group is probably 
everywhere a secondary product of such tendencies, if we define it not 
merely as the fact that a permanent sexual union occurs primarily on the 
basis of joint membership in some association, but as a process of social 
action in which only endogamous children are accepted as full members. 
(The term "sib endogamy" should not be used; there is no such thing 
unless we want to refer to the levirate marriage and arrangements in 
which daughters have the right to succession, but these have secondary, 
religious and poJitical origins.) "Pure" anthropological types are often a 
secondary consequence of such closure; examples are sects (as in India) 
as well as pariah peoples, that means, groups that are socially despised 
yet wanted as neighbors because they have monopolized indispensable 
skills. 

Reasons other than actual racial kinship influence the degree to 
which blood relationship is taken into account. In the United States the 
smallest admixture of Negro blood disqualifies a person unconditionally, 
whereas very considerable admixtures of Indian blood do not. Doubt- 
lessly, it is important that Negroes appear estheu'cally even more 'alien 
than Indians, but it remains very significant that Negroes were slaves 



i ] "Race" Membership 387 

and hence disqualified in the status hierarchy. The conventional con- 
nub'mm is far less impeded by anthropological differences than by status 
differences, that means, differences due to socialization and upbringing 
(Bildvng in the widest sense of the word). Mere anthropological differ- 
ences account for little, except in cases of extreme esthetic antipathy. 



2. The Belief in Common Ethnicity: Its Multiple Social 
Origins and Theoretical Ambiguities 

The question of whether conspicuous "racial" differences are based 
on biological heredity or on tradition is usually of no importance as far 
as their effect on mutual attraction or repulsion is concerned. This is true 
of the development of endogamous conjugal groups, and even more so of 
attraction and repulsion in other kinds of social intercourse, i.e., whether 
all sorts of friendly, companionable, or econbmic relationships between 
such groups are established easily and on the footing of mutual trust and 
respect, or whether such relationships are established with difficulty and 
with precautions that betray mistrust. 

The more or less easy emergence of social circles in the broadest 
sense of the word Ooaah VerkehrsgemeinsckafO may be linked to the 
most superficial features of historically accidental habits just as much as 
to inherited racial characteristics. That the different custom is not under- 
stood in its subjective meaning since the cultural key to it is lacking, is 
almost as decisive as the peculiarity of the custom as such. But, as we 
shall soon see, not all repulsion is attributable to the absence of a "con- 
sensual group." Differences in the styles of beard and hairdo, clothes, 
food and eating habits, division of labor between the sexes, and all kinds 
of other visible differences can, in a given case, give rise to repulsion and 
contempt, but the actual extent of these differences is irrelevant for the 
emotional impact, as is illustrated by primitive travel descriptions, the 
Histories of Herodotus or the older prescientific ethnography. Seen from 
their positive aspect, however, these differences may give rise to con- 
sciousness of kind, which may become as easily the bearer of group 
relationships as groups ranging from the household and neighborhood 
to political and religious communities are usually the bearers of shared 
customs. All differences of customs can sustain a specific sense of honor 
or dignity in their practitioners. The original motives or reasons for the 
inception of different habits of life are forgotten and the contrasts are 
then perpetuated as conventions. In this manner, any group can create 
customs, and it can also effect, in certain circumstances very decisively, 
the selection of anthropological types. This it can do by providing favor- 



3 8 8 ETHNIC GROUPS [ Ck. V 

able chances of survival and reproduction for certain hereditary qualities 
and traits. This holds both for internal assimilation and for external 
differentiation. 

Any cultural trait, no matter how superficial, can serve as a starting 
point for the familiar tendency to monopolistic closure. However, the 
universal* force of imitation has the general effect of only gradually 
changing the traditional customs and usages, just as anthropological types 
are changed only gradually by racial mixing. But if there are sharp 
boundaries between areas of observable styles of life, they are due to 
conscious monopolistic closure, which started from small differences that 
were then cultivated and intensified; or they are due to the peaceful 
or warlike migrations of groups that previously lived far from each other 
and had accommodated themselves to their heterogeneous conditions of 
existence. Similarly, strikingly different racial types, bred in isolation, 
may live in sharply segregated proximity to one another either because of 
monopolistic closure or because of migration. We can conclude then that 
similarity and contrast of physical type and custom, regardless of whether 
they are biologically inherited or culturally transmitted, are subject to 
the same conditions of group life, in origin as well as in effectiveness, 
and identical in their potential for group formation. The difference lies 
partly in the differential instability of fype and custom, partly in the fixed 
(though often unknown) limit to engendering new hereditary qualities. 
Compared to this, the scope for assimilation of new customs is incom- 
parably greater, although there are considerable variations in the trans- 
missibility of traditions. 

Almost any kind of similarity or contrast of physical type and of 
habits can induce the belief that affinity or disaffinity exists between 
groups that attract or repel each other. Not every belief in tribal affinity, 
however, is founded on the resemblance of customs or of physical type. 
But in spite of great variations in this area, such a belief can exist and 
cap develop group-forming powers when it is buttressed by a memory of 
an actual migration, be it colonization or individual migration. The 
persistent effect of the old ways and of childhood reminiscences con- 
tinues as a source of native-country sentiment (JieiiYUttsgefuhl) among 
emigrants even when they have become so thoroughly adjusted to the 
new country that return to their homeland Would be intolerable (this 
being the case of most German-Americans, for example). 

In colonies, the attachment to the colonists' homeland survives 
despite considerable mixing with the inhabitants of the colonial land 
and despite profound changes in tradition and hereditary type as well. 
In case of political colonization, the decisive factor is the need for 
political support. In general, the continuation of relationships cheated by 



2 ] The Belief in Common Ethnicity 389 

marriage is important, and so are the market relationships, provided that 
the "customs" remained unchanged. These market relationships between 
the homeland and the colony may be very close, as long as the consumer 
standards remain similar, and especially when colonies are in an almost 
absolutely alien environment and within an alien political territory. 

The belief in group affinity, regardless of whether it has any objec- 
tive foundation, can have important consequences especially for the 
formation of a political community. We shall call "ethnic groups" those 
human groups that entertain a subjective belief in their common descent 
because of similarities of physical type or of customs or both, or because 
of memories of colonization and migration; this belief must be important 

^ for the propagation of group formation; conversely, it does not matter 
whether or not an objective blood relationship exists. Ethnic membership 
(Gemeinsamkait) differs from the kinship group precisely by being a 
presumed identity, not a group with concrete social action, like the latter. 
In our sense, ethnic membership does not constitute a group; it only 
facilitates group formation of any kind, particularly in the political 
sphere. On the other hand, it is primarily the political community, no 
matter how artificially organized, that inspires the belief in common 
ethnicity. This belief tends to persist even after the disintegration of 
the political community, unless drastic differences in the custom, physical 
type, or, above all, language exist among its members. 

This artificial origin of the belief in common ethnicity follows the 
previously described pattern [cf. chapter II: 3] of rational association 
. turning into personal relationships. If rationally regulated action is not 
widespread, almost any association, even the most rational one, creates 
an overarching communal consciousness; this takes the form of a brother- 
hood on the basis of the belief in common ethnicity. As late as the Greek 
city state, even the most arbitrary division of the polis became for the 
member an association with at least a common cult and often a common 
fictitious ancestor. The twelve tribes of Israel were subdivisions of a 
political community, and they alternated in performing certain functions 

' on a monthly basis. The same holds for the Greek tribes Qphylai) and 
their subdivisions; the latter, too, were regarded as units of common 
ethnic descent. It is true that the original division may have been induced 
by political or actual ethnic differences, but the effect was the same when 
such a division was made quite rationally and schematically, after the 

v ' break-up of old groups and relinquishment of local cohesion, as it was 
done by Cleisthenes. It does not follow, therefore, that the Greek polis 
was actually or originally a tribal or lineage state, but that ethnic fictions 
were a sign of the rather low degree of rationalization of Greek political 
life. Conversely, it is a symptom of the greater rationalization of Rome 



3 9° ETHNIC CROUPS [ Ch. V 

that its old schematic subdivisions (cwiae) took on religious importance, 
with a pretense to ethnic origin, to only a small degree. 

The belief in common ethnicity often delimits "social circles," which 
in turn are not always identical with endogamous connubial groups, for 
gready varying numbers of persons may be encompassed by both. Their 
similarity rests on the belief in a specific "honor" of their members, not 
shared by the outsiders, that is, the sense of "ethnic honor" (a phenome- 
non closely related to status honor,- which will be discussed later). These 
few remarks must suffice at this point A specialized sociological study of 
ethnicity would have to make a finer distinction between these concepts 
than we have done for our limited purposes. 

Groups, in turn, can engender sentiments of likeness which will 
persist even after their demise and will have an "ethnic" connotation. 
The political community in particular can produce such an effect. But 
most directly, such an effect is created by the language group, which is 
the bearer of a specific "cultural possession of the masses" (MassenkultuT- 
gut) and makes mutual understanding (Yerstehen) possible or easier. 

Wherever the memory of the origin of a community by peaceful 
secession or emigration ("colony," vet sacrum, and the like) from a 
mother community remains for some reason alive, there undoubtedly 
exists a very specific and often extremely powerful sense of ethnic 
identity, which is determined by several factors: shared political mem- 
ories or, even more importantly in early times, persistent ties with the 
old cult, or the strengthening of kinship and other groups, both in the 
old. and the new community, or other persistent relationships. Where 
these ties are lacking, or once they cease to exist, the sense of ethnic 
group membership is absent, regardless of how close the kinship may be. 

Apart from the community of language, which may or may not coin- 
cide with objective, or subjectively believed, consanguinity, and apart 
£rom common religious belief, which is also independent of consanguin- 
ity, the ethnic differences that remain are, on the one hand, esthetically 
conspicuous differences of the physical appearance (as mentioned be- 
fore) and, on the other hand and of equal weight, the perceptible dif- 
ferences in the conduct of everyday Ufa, Of special importance are 
precisely those items which may otherwise seem to be of small social 
relevance, since when ethnic differentiation is concerned it is always 
the conspicuous differences that come into play. 

Common language and the ritual regulation of life, as determined by 
shared religious beliefs, everywhere are conducive to feelings of ethnic 
affinity, especially since the intelligibility of the behavior of others is the 
most fundamental presupposition of group formation. But since we shall 
not consider these two dements in the present context, we ask: what is 



2 ] - The Belief in Common Ethnicity 391 

it that remains? It must be admitted that palpable differences in dialect 
and differences of religion in themselves do not exclude sentiments of 
common ethnicity. Next to pronounced differences in the economic way 
of life, the belief in ethnic affinity has at all times been affected by out- 
ward differences in clothes, in the style of housing, food and eating 
habits, the division of labor between the sexes and between the free and 
the unfree. That is to say, these things concern one's conception of what 
is correct and proper and, above all, of what affects the individual's sense 
of honor and dignity. All those things we shall find later on as objects 
of specific differences between status groups. The conviction of the ex- 
cellence of one's own customs and the inferiority of alien ones, a con- 
viction which sustains the sense of ethnic honor, is actually quite analo- 
gous to the sense of honor of distinctive status groups. 

The sense of ethnic honor is a specific honor of the masses CMas- 
senehTe'), for it is accessible to anybody who belongs to the subjectively 
believed community of descent. The "poor white trash," i.e., the 
propertyless and, in the absence of job opportunities, very often destitute 
white inhabitants of the southern ^states of the United States of America 
in the period of slavery, were the actual bearers of racial antipathy, 
which was quite foreign to the planters. This was so because the social 
honor of the "poor whites^' was dependent upon the social declassement 
of the Negroes. '^ 

And behind all ethnic diversities there is somehow naturally the 
notion of the "chosen people," which is merely a counterpart of status 
differentiation translated into the plane of horizontal co-existence. The 
idea of a chosen people derives its popularity from the fact that it can be 
claimed to an equal degree by any and every member of the mutually 
despising groups, in contrast to status differentiation which always rests 
on subordination. Consequently, ethnic repulsion may take hold of all 
conceivable differences among the notions of propriety and transform 
them into "ethnic conventions." 

Besides the praviously mentioned elements, which were still more or 
less closely related to the economic order, conventionalization (a term 
expounded elsewhere) may take hold of such things as a hairdo or style 
of beard and the like. The differences thereof have an "ethnically" re- 
pulsive effect, because they are thought of as symbols of ethnic member- 
ship. Of course, the repulsion is not always based merely on the "sym- 
bolic" character of the distinguishing traits. The fact that the Scythian 
women oiled their hair with butter, which then gave off a rancid odor, 
while Greek women used perfumed oil to achieve the same purpose, 
thwarted — according to an ancient report — all attempts at social inter- 
course between the aristocratic ladies of these two groups. The smell of 



"1 



3 9^ ETHNIC CROUPS [ Ch. V 

butter certainly had a more compelling effect than even the most promi- 
nent racial differences, or — as far as I could see — the "Negro odor," of 
which so many fables are told. In general, racial qualities are effective only 
as limiting factors with regard to the belief in common ethnicity, such as 
in case of an excessively heterogeneous and esthetically unaccepted 
physical type; they are not positively group^forming. 

Pronounced differences of custom, which play a role equal to that 
of inherited physical type in the creation of feelings of common ethni- 
city and notions of kinship, are usually caused, in addition to linguistic 
and religious differences, by the diverse economic and political conditions 
of various social group. If we ignore cases of clear-cut linguistic bound- 
aries and sharply demarcated political or religious communities as a 
basis of differences of custom — and these in fact are lacking in wide areas 
of the African and South American continents — then there are only 
gradual transitions of custom and no immutable ethnic frontiers, except 
those due to gross geographical differences. The sharp demarcations of 
areas wherein ethnically relevant customs predominate, which were not 
conditioned either by political or economic or religious factors, usually 
came into existence by way of migration or expansion, when groups of 
people that had previously lived in complete or partial isolation from 
each other and became accommodated to heterogeneous conditions of 
existence came to live side by side. As a result, the obvious contrast 
usually evokes, on both sides, the idea of blood disafBnity OSlutsfremd- 
heii), regardless of the objective state of affairs. 

It is understandably difficult to determine in general- — and even in a 
concrete individual case — what influence specific ethnic factors (i.e., 
the belief in a blood relationship, or its opposite, which rests on similari- 
ties, or differences, of a person's physical appearance and style of life) 
have on the formation of a group. 

There is no difference between the ethnically relevant customs and 
customs in general, as far as their effect is concerned. The belief in 
common descent, in combination with a similarity of customs, is likely 
to promote the spread of the activities of one part of an ethnic group 
among the rest, since the awareness of ethnic identity furthers imitation. 
This is especially true of the propaganda of religious groups. 

It is not feasible to go beyond these vague generalizations. The con- 
tent of joint activities that are possible on an ethnic basis remains in- 
definite. There is a corresponding ambiguity of concepts denoting 
ethnically determined action, that means, determined by the belief in 
blood relationship. Such concepts are Volkerschaft, Stamm (tribe), 
Vdk (people), each of which is ordinarily used in the sense of an ethnic 
subdivision of the following one (although the first two may be used in 



2 ] _ The Belief in Common Ethnicity 393 

reversed order). Using such terms, one usually implies either the exist- 
ence of a contemporary political community, no matter how loosely 
organized, or memories of an extinct political community, such as they 
are preserved in epic tales and legends; or the existence of a linguistic 
or dialect group; or, finally, of 3 religious group. In the past, cults in 
particular were the typical concomitant of a tribal or Votk consciousness. 
But in the absence of the political community, contemporary or past, the 
external delimitation of the group was usually indistinct. The cult com- 
munities of Germanic tribes, as late as the Burgundian period [6th 
century A.D.], were probably rudiments of political communities and 
therefore pretty well defined. By contrast, the Delphian oracle, the un- 
doubted cultic symbol of Hellenism, also revealed information to the 
barbarians and accepted their veneration, and it was an organized cult 
only among some Greek segments, excluding the most powerful cities. 
The cult as an exponent of ethnic identity is thus generally either a 
remnant of a largely political community which once existed but was 
destroyed by disunion-and colonization, or it is — as in the case of the 
Delphian Apollo — a product of a Kulturgemeinschaft brought about by 
other than purely ethnic conditions, but which in turn gives rise to the 
belief in blood relationship. All history shows how easily political action 
can give rise to the belief in blood relationship, unless gross differences 
of anthropological type impede it. 



3. Tribe and Political Community: The Disutility of the 
Notion of "Ethnic Group" 

The tribe is clearly delimited when it is a subdivision of a polity, 
which, in fact, often establishes it. In this case, the artificial origin is 
revealed by the round numbers in which tribes usually appear, for 
examplej the previously mentioned division of the people of Israel into 
twelve tribes, the three Doric fhylai and the various ■phyh.i of the other 
Hellenes. When a political community wa; newly established or re- 
organized, the population was newly divided. Hence the tribe is here a 
political artifact, even though it soon adopts the whole symbolism of 
blood-relationship and particularly a tribal cult. Even today it is not rare 
that political artifacts develop a sense of affinity akin to that of blood- 
relationship. Very schematic constructs such as those states of the United 
States that were made into squares according to their latitude have a 
strong sense of identity; it is also not rare that families travel from New 
York to Richmond to make an expected child a "Virginian." 



3 9 4 ETHNIC GROUPS [ Ck. V 

Such artificiality does not preclude the possibility that the Hellenic 
phylai, for example, were at one time independent and that the polis 
used them schematically when they were merged into a political associa- 
tion. However, tribes that existed before the polls were either identical 
with the corresponding political groups which were subsequently as- 
sociated into a polis, and in this case they were called ethnos, not phyle; 
or, as it probably happened many times, the politically unorganized tribe, 
as a presumed "blood community," lived from the memory that it once 
engaged in joint political action, typically a single conquest or defense, 
and then such political memories constituted the tribe. Thus, the fact 
that tribal consciousness was primarily formed by common political ex- 
periences and not by common descent appears to have been a frequent 
source of the belief in common ethnicity. 

Of course, this was not the only source: Common customs may have 
diverse origins. Ultimately, they derive largely from adaptation to natural 
conditions and the imitation of neighbors. In practice, however, tribal 
consciousness usually has a political meaning: in case of military darger 
or opportunity, it easily provides the basis for joint political action on the 
part of tribal members or Volksgenossen who consider one another as 
blood relatives. The eruption of a drive to political action is thus one of 
the major potentialities inherent in the rather ambiguous notions of tribe 
and people. Such intermittent political action may easily develop into the 
moral duty- of all members of tribe or people (Vo&) to support one 
another in case of a military attack, even if there is no corresponding 
political association; violators of this solidarity may suffer the fate of the 
[Germanic, pro-Roman] sibs of Segestes and Inguiomer — expulsion from 
the tribal territory — , even if the tribe has no organized government. If 
the tribe has reached this stage, it has indeed become a continuous 
political community, no matter how inactive in peacetime, and hence 
unstable, it may be. However, even under favorable conditions the tran- 
sition from the habitual to the customary and therefore obligatory is very 
fluid. All in all, the notion of "ethnically" determined social action sub- 
sumes phenomena that a rigorous sociological analysis — as we do not 
attempt it here— ^would have to distinguish carefully: the actual sub- 
jective effect of those customs conditioned by heredity and those deter- 
mined by tradition; the differential impact of the varying content of 
custom; the influence of common language, religion and political action, 
past and present, upon the formation of customs; the extent to which 
such factors create attraction and repulsion, and especially the belief in 
affinity or disaffinity of blood; the consequences of this belief for social 
action in general, and specifically for action on the basis of shared custom 
or blood relationship, for diverse sexual relations, etc. — all of this would 



3 ] Tribe and Political Community 3 9 5 

have to be studied in detail. It is certain that in this process the collective 
term "ethnic" would be abandoned, for it is unsuitable for a really rigor- 
ous analysis. However, we do not pursue sociology for its own sake and 
therefore limit ourselves to showing briefly the diverse factors that are 
hidden behind this seemingly uniform phenomenon. 

The concept of the "ethnic" group, which dissolves if we define our 
terms exactly, corresponds in this regard to one of the most vexing, since 
emotionally charged concepts.: the nation, as soon as we attempt a socio- 
logical definition. 



4. Nationality and Cultural Prestige 2 

The concept of "nationality" shares with that of the "people" (Volk") 
— in the "ethnic" sense — the vague connotation that whatever is felt to be 
distinctively common must derive from common descent. In reality, of 
course, persons who consider themselves members of the same nationality 
are often much less related by common descent than are persons belonging 
to different and hostile nationalities. Differences of nationality may exist 
even among groups closely related by common descent, merely because 
they have different religious persuasions, as in the case of Serbs and Croats. 
The concrete reasons for the belief in joint nationality and for the resulting 
social action vary greatly. 

Today, in the age of language conflicts, a shared common language 
is pre-eminently considered the normal basis of nationality. Whatever 
the "nation" means beyond a mere "language group" can be found in 
the specific objective of its social action, and this can only be the autono- 
mous polity. Indeed, "nation state" has become conceptually identical 
with "state" based on common language. In reality, however, such mod- 
ern nation states exist next to many others that comprise several language 
groups, even though these others usually have one official language. A 
common language is also insufficient in sustaining a sense of national 
identity (.NationalgejuhV) — a : concept which we will leave undefined 
for the present. Aside from the examples of the Serbs and Croats, this 
is demonstrated by the Irish, the Swiss and the German-speaking Alsa- 
tians; these groups do not consider themselves as members, at least not 
as full members, of the "nation" associated with their language. Con- 
versely, language differences do not necessarily preclude a sense of joint 
nationality: The German-speaking Alsatians considered themselves — and 
most of them still do — as part of the French "nation," even though not 
in the same sense as French-speaking nationals. Hence there are qualita- 
tive degrees of the belief in common nationality. 



396 ETHNIC GROUPS [ Ch. V 

Many German-speaking Alsatians feel a sense of community with 
the French because they share certain customs and some of their "sensual 
culture" (JSinnevikultur) — as Wittich in particular has pointed out — and 
also because of common political experiences. This can be understood 
by any visitor who walks through the museum in Colmar, which is rich 
in relics such as tricolors, pompier and military helmets, edicts by Louis 
Philippe and especially memorabilia from the French Revolution; these 
may appear trivial to the outsider, but they have sentimental value for 
the Alsatians. 8 This sense of community came into being by virtue of ■ 
common political and, indirectly, social experiences which are highly 
valued by the masses as symbols of the destruction of feudalism, and the 
story of these events takes the place of the heroic legends of primitive 
peoples. La grande nation was the liberator from feudal servitude, she 
was the bearer of civilization Q&ultur), her language was the civilized 
language; German appeared as a dialect suitable for everyday communi- 
cation. Hence the attachment to those who speak the language of civili- 
zation is an obvious parallel to the sense of community based on common 
language, but the two phenomena are not identical; rather, we deal here 
with an attitude that derives from a partial sharing of the same culture 
and from shared political experiences. 

Until a short time ago most Poles in Upper Silesia had no strongly 
developed sense of Polish nationality that was antagonistic to the 
Prussian state, which is based essentially on the German language. The 
Poles were loyal if passive "Prussians," but they were not "Germans" 
interested in the existence of the Reich; the majority did not feel a 
conscious or a strong need to segregate themselves from German-speaking 
fellow-citizens. Hence, in this case there was no sense of nationality 
based on common language, and there was no Kulturgemeinsckaft in 
view of the lack of cultural development. 

Among the Baltic Germans we find neither much of a sense of nation- 
ality amounting to a high valuation of the language bonds with the 
Germans, nor a desire for political union with the Reich; in fact, most 
of them would abhor such a unification. However, they segregate them- 
selves rigorously from the Slavic environment, and especially from the 
Russians, primarily because of status considerations and partly because 
both sides have different customs and cultural values which are mutually 
unintelligible and disdained. This segregation exists in spite of, and 
partly because of, the fact that the Baltic Germans are intensely loyal 
vassals of the Tsar and have been as interested as any "national" Russian 
(Nationalrusse') in the predominance of the Imperial Russian system, 
which they provide with officials and which in turn maintains their 
descendants. Hence, here too we do not find any sense of-nationality in 



4 ] Nationality and Cultural Prestige 3 9 7 

die modem meaning of the term (oriented toward a common language 
and culture). The case is similar to that of the purely proletarian Poles: 
loyalty toward the- state is combined with a sense of group identity that 
is limited to a common language group within this larger community 
and strongly modified by status factors. Of course, the Baltic Germans 
are no longer a cohesive status group, even though the differences are not 
as extreme as within the white population of the American South. 

Finally, there are cases for which the term nationality does not seem 
to be quite fitting; witness the sense of identity shared by the Swiss and 
the Belgians or the inhabitants of Luxemburg and Liechtenstein. We 
hesitate to call them "nations." not because of their relative smallness — 
the Dutch appear to us as a nation — , hut because these neutralized 
states have purposively forsaken power. The Swiss are not a nation if we 
take as criteria common language or common literature and art. Yet they 
have a strong sense of community despite some recent disintegrative 
tendencies. This sense of identity is not only sustained by loyalty toward 
the body politic but also by what are perceived to be common customs 
(irrespective of actual differences). These customs are largely shaped 
by the differences in social structure between Switzerland and Germany, 
but also all other big and hence militaristic powers. Because of the impact 
of bigness on the internal power structure, it appears to the Swiss that 
their customs can be preserved only by a separate political existence. 

The loyalty of the French Canadians toward the English polity is 
today determined above all by the deep antipathy against the economic 
and social structure, and the way of life, of the neighboring United 
States; hence membership in the Dominion of Canada appears as a 
guarantee of their own traditions. 

This classification could easily be enlarged, as every rigorous socio- 
logical investigation would have to do. It turns out that feelings of 
identity subsumed under the term "national" are not uniform but may 
derive from diverse sources: Differences in the economic and social 
structure and in the interna] power structure, with its impact on the 
customs, may play a role, but within the German Reich customs are very 
diverse; shared political memories, religion, language and, finally, racial 
features may be source of the sense of nationality. Racial factors often 
have a peculiar impact. From the viewpoint of the Whites in the United 
States, Negroes and Whites are not united by a common sense of nation- 
ality, but the Negroes have a sense of American nationality at least by 
claiming a right to it. On the other hand, the pride of the Swiss in their 
own distinctiveness, and their willingness to defend it vigorously, is 
neither qualitatively different nor less widespread than the same attitudes 
in any "great" and powerful "nation." Time and again we find that the 



3 9 8 ETHNIC GROUPS [ Ck. V 

concept "nation" directs us to political power/ Hence, the concept seems 
to refer — if it refers at all to a uniform phenomenon — to a specific kind 
of pathos which is linked to the idea of a powerful political community 
of people who share a common language, or religion, or common customs, 
or political memories; such a state may already exist or it may be desired. 
The more power is emphasized, the closer appears to be the link between 
nation and state. This pathetic pride in the power of one's own com- 
munity, or this longing for it, may be much more widespread in relatively 
small language groups such as the Hungarians, Czechs or Greeks than 
in a similar but much larger community such as the Germans 150 years 
ago, when they were essentially a language group without pretension^ 
to national power. 



NOTES 

1 . On race and civilization, see also Weber's polemical speech against A. 
Ploetz at the first meeting of the German Sociological Association, Frankfurt, 
1910, in GAzSS, 456-62. Two years later, at the second meeting of the Associa- 
tion in Berlin, Weber took the floor again after a presentation by Franz Oppen- 
heimer. Among other things, Weber said (op. tit., 489): 

"With race theories you can prove and disprove anything you want. It is a 
scientific crime to attempt the circumvention, by the 'uncritical use of completely 
unclarified racial hypotheses, of the sociological study of Antiquity, which of course 
is much more difficult, but by no means without hope of success; after all, we can 
no longer find out to what extent the qualities of the Hellenes and Romans rested 
on inherited dispositions. The problem of such relationships has not yet been 
solved by the most careful and toilsome investigations of living subjects, even' if 
undertaken in the laboratory and with the means of exact experimentation." 

2. Cf. the related section on "The Nation" inch. IX; 5. 

3. See Werner Wittich, Deutsche and franzoshche Kultur im Elsass (Strass- 
burg: Schlesier und Schweikhardt, 1900), 38ff; for a French transl., see "I_e 
genie national des races franchise ef allemande en Alsace." Revue Internationale 
de Sociologie, vol. X, 1902, 777-824 and 857-907, esp. 814(1. Cf. also We- 
ber, GAzRS, I, 25, n. 1; GAzSS, 484. "Outsiders," in contrast to the pre-1914 
custodian who showed Weber his greatest treasures, cherish the Colmar museum 
for one of the most powerful works of art of the late Middle Ages, Grunewald's 
"Isenheim Altar." 



CHAPTE 



. VI 



RELIGIOUS GROUPS 
(THE SOCIOLOGY 
OF RELIGION)' 



/ i 

The Origins of Religion 



i . The Original This-Worldly Orientation of Religious 
and Magical Action 

To define "religion," to say what it is, is not possible at the start of a 
presentation su|# as this. Definition can be attempted, jf at all, only at 
the conclusion of the study. The essence of religion is not even our con- 
cern, as we make it our task to study the conditions and effects of a 
particular type of social action. 

The external courses of religious behavior are so diverse that an 
understanding of this behavior can only be achieved from the viewpoint 
of the subjective experiences, ideas, and purposes of the individuals con- 
cerned — in short, from the viewpoint of the religious behavior's "mean- 
ing" (Sinn'). 

The most elementary forms of behavior motivated by religious 
or magical factors are oriented to this world. "That it may go well with 
thee . . . and that thou mayest prolong thy days upon the earth" [Deut. 

f3993 ■ 



4 O O RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

4:40] expresses the reason for the performance of actions enjoined by 
religion or magic. Even human sacrifices, although uncommon among 
urban peoples, were performed in the Phoenician maritime cities with- 
out any otherworldly expectations whatsoever. Furthermore, religiously 
or magically motivated behavior is relatively rational behavior, especially 
in its earliest manifestations. It follows rules of experience, though it is 
not necessarily action in accordance with a means-end schema. Rubbing 
will elicit sparks from pieces of wood, and in like fashion the mimetical 
actions of a magician will evoke rain from the heavens. The sparks result- 
ing from twirling the wooden sticks are as much a "magical" effect as 
the rain evoked by the manipu! >tions of the rainmaker. Thus, religious 
or magical behavior or thinking must not be set apart from the range 
of everyday purposive conduct, particularly since even the ends of the 
religious and magical actions are predominantly economic. 

Only we, judging from the standpoint of our modern views of nature, 
can distinguish objectively in such behavior those attributions of causality 
which are "correct" from those which are "fallacious," and then designate 
the fallacious attributions of causality as irrational, and the corresponding 
acts as "magic." Quite a different distinction will be made by the person 
performing the magical act, who will instead distinguish between the 
greater or lesser ordinariness of the phenomena in question. For example, 
not every stone can serve as a fetish, a source of magical power. Nor does 
every person have the capacity to achieve the ecstatic states which are 
viewed, in accordance with primitive experience, as the pre-conditions 
for producing certain effects in meteorology, healing, divination, and 
telepathy. It is primarily, though not exclusively, these extraordinary 
powers that have been designated by such special terms as "mana," 
"orenda," and the Iranian "maga" (the term from which our word 
"magic" is derived). We shall henceforth employ the term "charisma" 
for such extraordinary powers. 

Charisma may he either of two types. Where this appellation is fully 
merited, charisma is a gift that inheres in an object or person simply by 
virtue of natural endowment. Such primary charisma cannot be acquired 
by any means. But charisma of the other type may be produced artificially 
in an object or person through some extraordinary means. Even then, 
it is assumed that charismatic powers can be developed only in people 
or objects in which the germ already existed but would have remained 
dormant unless evoked by some ascetic or other regimen. Thus, even at 
the earliest stage of religious evolution there are already present in nuce 
all forms of the doctrine of religious grace, from that of gratia infusa to 
the most rigorous tenet of salvation by good works. The strongly natu- 
ralistic orientation (lately termed "pre-animistic") of the earliest religious 



t ] The Origins of Religion 401 

phenomena is still a feature of folk religion. To this day, no- decision 
of church councils, differentiating the "worship" of God from the "adora- 
tion" of the icons of saints, and defining the icons as merely a devotional 
means, has succeeded in deterring a south European peasant from spit- 
ting in front of the statue of a saint when he holds it responsible for 
withholding a favor even though the customary procedures were per- 
formed. 



2. The Belief in Spirits, Demons, and the Soul 

A process of abstraction, which only appears to be simple, has usually 
already been carried out in the most primitive instances of religious 
behavior which we examine. Already crystallized is the notion that cer- 
tain beings are concealed "behind" and responsible for the activity of the 
charisma tically endowed natural objects, artifacts, animals, or persons. 
This is the belief in spirits. At the outset, "spirit" is neither soul, demon, 
nor god, but something indeterminate, material yet invisible, nonpersonal 
and yet somehow endowed with volition. By entering into a concrete 
object, spirit endows the latter with its distinctive power. The spirit may 
depart from its host or vessel, leaving the latter inoperative and causing 
the magician's charisma to faij. In other cases, the spirit may diminish 
into nothingness, or it may enter into another person or thing. 

That any particular economic conditions are prerequisites for the 
emergence of a belief in spirits does not appear to be demonstrable. But 
belief in spirits, like all abstraction, is most advanced in those societies 
within which certain persons possess charismatic magical powers that 
inhere only in those with special qualifications. Indeed it is this circum- 
stance that lays the foundation for the oldest of all "vocations," that of 
the professional necromancer. In contrast to the ordinary person, the 
"layman" in the magical sense, the magician is permanently endowed 
with charisma. Furthermore, he has turned into an "enterprise" the dis- 
tinctive subjective condition that notably represents or mediates charisma, 
namely ecstasy. For the layman, this psychological state is accessible only 
in occasional actions. Unlike the merely rational practice of wizardry, 
ecstasy occurs in a social form, the orgy, which is the primordial form of 
religious association. But the orgy is an occasional activity, whereas the 
enterprise of the magician is continuous and he is indispensable for its 
operation. 

Because of the routine demands of hying, the layman can experience 
ecstasy only occasionally, as intoxication. To induce ecstasy, he may em- 
ploy any type of alcoholic beverage, tobacco, or similar narcotics — and 



.4 O 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

especially music — all of which originally served orgiastic purposes. In 
addition to the rational manipulation of spirits in accordance with eco- 
nomic interests, the manner in which ecstasy was employed constituted 
another important, but historically secondary, concern of the magician's 
art, which, naturally enough, developed almost everywhere into a secret 
lore. On the basis of the experience with the conditions of orgies, and 
in all likelihood under the influence of his professional practice, there 
evolved the concept of "soul" as a separate entity present in, behind or 
"near natural objects, even as the human body contains something that 
leaves it in dream, syncope, ecstasy, or death. 

This is not the place to treat extensively the diversity of possible 
relationships between spiritual beings and the objects behind which they 
lurk and with which they are somehow connected. These spirits or souls 
may "dwell" more or less continuously and exclusively near or within 
a concrete object or process. But on the other hand, they may somehow 
"possess" types of events, things, or categories thereof, the behavior and 
efficacy of which they will decisively determine. These and similar views 
are properly called animistic. The spirits may temporarily "incorporate" 
themselves into things, plants, animals, or people; this is a further stage 
of abstraction, achieved only gradually. At the highest stage of abstrac- 
tion, which is scarcely ever maintained consistently, spirits may he re- 
garded as invisible essences that follow their own laws, and are merely 
"symbolized by" concrete objects. In between these extremes of natural- 
ism and abstraction there are many transitions and combinations. Yet 
even at the first stage of the simpler forms of abstraction, there is present 
in principle the notion of "supersensual" forces that may intervene in 
the destiny of people in the same way that a man may influence the 
course of the world about him. 

At these earlier stages, not even the gods or demons are yet personal 
or enduring, and sometimes they do not even have names of their own. 
A god may be thought of as a power controlling the course of one 
particular event (Usener's Augenblicksgotter'),' to whom no one gives 
a st nd thought until the event in question is repeated. On the other 
hand, a god may he the power which somehow emanates from a great 
hero after his death. Either personification or depersonalization may he 
a later development. Then, too, we find gods without any personal name, 
who are designated only by the name of the process they control. At a 
later time, when the semantics of this designation is no longer under- 
stood, the designation of this process may take on the character of a 
proper name for the god. Conversely, the proper names of powerful 
chieftains or prophets have become the designations of divine powers, a 
procedure employed in reverse by myth to derive the right to transform 



i ] The Origins of Religion 4 ° 3 

purely divine appellations into personal names of deiBed heroes. Whether 
a given conception of a deity becomes enduring and therefore is always 
approached by magical or symbolic means, depends upon many different 
circumstances. The most important of these is whether and in what 
manner the magician or the secular chieftain accepts the god in question 
on the basis of their own personal experiences. 

Here we may simply note that the result of this process is the rise on 
one hand of the idea of the "soul," and on the other of ideas of "gods," 
"demons," hence of "supernatural" powers, the ordering of whose, rela- 
tions to men constitutes the realm of religious behavior. At the outset, the 
soul is neither a personal nor yet an impersonal entity. It is frequeridy 
identified — in a naturalistic fashion — with something that disappears 
after death, e.g., with the breath or with the beat of the heart in which 
it resides and by the ingestion of which one may acquire the courage of 
his dead adversary. Far more important is the fact that the soul is fre- 
quendy viewed as a heterogeneous entity. Thus, the soul that leaves man 
during dreams is distinguished from the soul that leaves him in ecstasy 
— when his heart beats in his throat and his breath fads, and from the 
soul that inhabits his shadow. Different yet is the soul that, after death, 
clings to the corpse or stays near it as long as something is left of it, and 
the soul that continues to exert influence at the site of the person's 
former residence, observing with envy and anger how the heirs are relish- 
ing what had belonged to it in its life. Still another soul is that which 
appears to the descendants in dreams or visions, threatening or counsel- 
ing, or that which enters into some animal or into another person — 
especially a newborn baby — bringing blessing or curse, as the case may .. 
be. The conception cf the "soul" as an independent entity set over * 
against the "body" is by no means universally accepted, even in the 
religions of salvation. Indeed, some of these religions, such as Buddhism, 
specifically reject this notion. 



3. Naturalism and Symbolism 

What is primarily distinctive in this whole development is not the 
personality, impersonality or superpersonah'ty of these supernatural 
powers, but the fact that new experiences now play a role in life. Before, 
only the things or events that actually exist or take place played a role 
in life; now certain experiences, of a different order in that they only 
signify something, also play a role. Thus magic is transformed from a 
direct manipulation of forces into a symbolic activity. 



404 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch, VI 

A notion that the soul of the dead must be rendered innocuous de- 
veloped, beyond the direct fear of the corpse (2 fear manifested even 
by animals), which direct fear often' determined burial postures and 
procedures, e.g., the squatting posture, cremation, etc. After the develop- 
ment of ideas of the soul, the body had to be removed or restrained in 
the grave, provided with a tolerable existence, and prevented from be- 
coming envious of the possessions enjoyed by the living; or its good will 
"had to be secured in other ways, if the survivors were to live in peace. 
Of the various magical practices relating to the disposal of the dead, the 
notion with the most enduring economic consequences is that the corpse 
must be accompanied to the grave by all its personal belongings. This 
notion was gradually attenuated to the requirement that the goods of the 
deceased must not be touched for at least a brief period after his death, 
and frequendy the requirement that the survivors must not even enjoy 
their own possessions lest they arouse the envy of the dead. The funerary 
prescriptions of the Chinese still fully retain this view, with conse- 
quences that are equally irrational in both the economic and the political 
spheres. (One of the interdictions during the mourning period related to 
the occupancy of a benefice; since the usufruct thereof constituted a pos- 
session, it had tobe avoided.) 

The development of a realm of souls, demons, and gods in turn af- 
fected the meaning of the magical arts. For these beings cannot be 
grasped or perceived in any concrete sense but .possess a kind of tran- 
scendental existence which is normally accessible only through the media- 
tion of symbols and meanings and which consequendy appears to be 
shadowy and sometimes outright unreal. Since it is assumed that behind 
real things and events there is something else, distinctive and spiritual, 
of which real events are only the symptoms or indeed the symbols, an 
effort must be made to influence the spiritual power that expresses itself in 
concrete things. This is done through actions that address themselves 
to a spirit or soul, hence by instrumentalities that "mean" something, 
i,e., symbols. Thereafter, naturalism may be swept away by a flood of 
symbolic actions. The occurrence of this displacement of naturalism 
depends upon the pressure which the professional masters of such 
symbolism can put behind their belief and its intellectual elaboration, 
hence, on the power which they manage to gain within the community. 
The displacement of naturalism will depend upon the importance of 
magic for the economy and upon the power of the organization the 
necromancers succeed in creating. 

The proliferation of symbolic acts and their supplanting of the origi- 
nal naturalism will have far-reaching consequences. Thus, if the dead 
person is accessible only through symbolic actions, and indeed if the 



i ] The Origins of Religion 4 ° 5 

god expresses himself only through symbols, then the corpse may he 
satisfied with symbols instead of real things. As a result, actual sacrifices 
may be replaced by shewbreads and puppet-like representations of the 
surviving wives and servants of the deceased. It is of interest that the 
oldest paper money was used to pay, not the living, but the dead. A 
similar substitution occurred in the relationships of men to gods and 
demons. More and more, things and events assumed meanings beyond 
the potencies that actually or presumably inhered in them, and efforts 
were made to achieve 'real effects by means of symbolically significant 
action. 

Every purely magical act that had proved successful in a naturalistic 
sense was, of course, repeated in the form once established as effective. 
Subsequently, this principle extended to the entire domain of symbolic 
significances, since the slightest deviation from the ostensibly successful 
method might render the procedure inefficacious. Thus, all areas of 
human activity were drawn into this circle of magical symbolism. For 
this reason the greatest contrasts of purely dogmatic views, even within 
religions that have undergone rationalization, may be tolerated more 
easily than innovations in symbolism, which threaten the magical efficacy 
of action or even— and this is the new concept supervening upon sym- 
bolism — arouse the anger of a god or an ancestral spirit. Thus, the ques- 
tion whether the sign of the cross should be made with two or three fingers 
was a basic reason for the schism of the Russian church as late as the seven- 
teenth century. Again, the fear of giving serious affront to two dozen 
saints by omitting the days sacred to them from the calendar year has 
hindered the reception of the Gregorian calendar in Russia until today. 
Among the magicians of the American Indians, faulty singing during 
ritual dances was immediately punished by the death of the guilty singer, 
to remove the evil magic or to avert the anger of the god. 

The religious stereotyping of the products of pictorial art, the oldest 
form of stylization, was directly determined by magical conceptions and 
indirectly determined by the fact that these artifacts came to be produced 
professionally for their magical significance; professional production 
tended automatically to favor the creation of art objects based upon 
design rather than upon representational reproduction of the natural 
object. The full extent of the influence exerted by the religious factor 
in art is exemplified in Egypt, where the devaluation of the traditional 
religion by the monotheistic campaign of Amenhotep IV (Ikhnaton) im- 
mediately stimulated naturalism. Other examples of the religious styliza- 
tion of art may be found in the magical uses of alphabetical symbols; the 
devefopmentof mimicry and dance as homeopathic, apotropaic, exorcistic, 
or magically coercive symbolism; and the stereotyping of admissible 



4 O 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [ Ch. VI 

musical scales, or at least admissible musical keynotes (.raga in India), in 
contrast to the chromatic scale. Another manifestation of such religious 
influence is found in the widespread substitutions of therapy based upon 
exorcism or upon symbolic homeopathy for the earlier empirical metncds 
of medical treatment, which frequently were considerably developed but 
seemed only a cure of the symptoms, from the point of view of symbolism 
and the animistic doctrine of possession by spirits. From the standpoint 
of animistic symbolism's own basic assumptions its therapeutic methods 
might be regarded as rational, but they bear the same relation to empirical 
therapy as astrology, which grew from the same roots, bears to empirical 
computation of the calendar. 

All these related phenomena had incalculable importance for the 
substantive evolution of culture, but we cannot pursue this here. The 
first and fundamental effect of religious views upon the conduct of life 
and therefore upon economic activity was generally stereotyping. The 
alteration of any practice which is somehow executed under the pro- 
tection of supernatural forces may affect the interests of spirits and gods. 
To the natural uncertainties and resistances facing every innovator, reli- 
gion thus adds powerful impediments of its own. The sacred is the 
uniquely unalterable. 

The details of the transitions from pre-animistic naturalism to sym- 
bolism are altogether variable. When the primitive tears out the heart 
of a slain foe, or wrenches the sexual organs from the body of his victim, 
or extracts the brain from the skull and then mounts the skull in his 
home or esteems it as the most precious of bridal presents, or eats parts 
of the bodies of slain foes or the bodies of especially fast and powerful 
animals — he really believes that he is coming into possession, in a natu- 
ralistic fashion, of the various powers attributed to these physical organs. 
The war dance is in the first instance the product of a mixture of fury 
and fear before the battle, and it directly produces the heroic frenzy; 
to this extent it too is naturalistic rather than symbolic. The transition 
to symbolism is at hand insofar as the war dance (somewhat in the 
manner of our manipulations by "sympathetic" magic) mimetically an- 
ticipates victory and thereby endeavors to insure it by magical means, 
insofar as animals and men are slaughtered in fixed rites, insofar as the 
spirits and gods of the tribe are summoned to participate in the cere- 
monial repast, and insofar as the consumers of a sacrificial animal regard 
themselves as having a distinctively close kin relationship to one another 
because the "soul" of this animal has entered into them. 

The term "mythological thinking" has been applied to the pattern 
of thought that is the basis of the fully developed realm of symbolic 
concepts, and considerable attention has been given to the detailed elu- 



i ] The Origins of Religion 4 ° 7 

cidation of its character. We cannot occupy ourselves with these prob- 
lems here. Only one generally important aspect of this way of thinking 
is of concern to US', the significance of analogy, especially in its most 
effective form, the parable. Analogy has exerted a lasting influence upon, 
indeed has dominated not only forms of religious expression but also 
juristic thinking, even the treatment of precedents in purely empirical 
forms of law. The syllogistic constructions of concepts through rational 
subsumption only gradually replaced analogical thinking, which origi- 
nated in symbolistically rationalized magic, whose structure is wholly 
analogical. 

Gods, too, were not originally represented in human forms. To be 
sure they came to possess the form of enduring beings, which is essential 
for them, only after the suppression of the purely naturalistic view still 
evident in the Vedas (e.g., that a fire is the god, or is at least the body 
of a concrete god of fire) in favor of the view that a god, forever identical 
with himself, possesses all fires, produces or controls them, or somehow is 
incorporated in each of them- This abstract conception becomes really 
secure only through the continuing activity of a "cult" dedicated to one 
and the same god — through the god's connection with an enduring 
association of men, for which he has special significance as the enduring 
god. We shall presently consider this process further. Once this persevera- 
tion of the forms of the gods has been secured, the intellectual activity of 
those concerned in a professional way with such problems may be devoted 
to the systematization of these ideas. 



4. Pantheon and Functional Gods 

The gods frequently constituted an unordered miscellany of ac- 
cidental entities, held together fortuitously by the cult, and this condi- 
tion was by no means confined to periods of low social differentiation. 
Thus, even the gods of the Vedas did not form an orderly common- 
wealth. But as a rule there is a tendency for a pantheon to evolve once 
systematic thinking concerning religious practice and the rationalization 
of life generally, with its increasing demands upon the gods, have reached 
a certain level, the details of which may differ greatly from case to case. 
The emergence of a pantheon entails the specialization and characteriza- 
tion of the various gods as well as the allocation of constant attributes 
and the differentiation of their jurisdictions. Yet the increasing anthro- 
pomorphic personification of the gods is in no way identical with or 
parallel to the increasing delimitation of jurisdictions. Frequently the 
opposite is true. Thus, the scope of the Roman nutnina is incomparably 



4 O 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

more fixed and unequivocal than that of the Hellenic gods. On the other 
hand, the anthropomorphization and plastic representation of the latter 
as real personalities went very much further than in the authentic 
Roman religion. 

Sociologically, the most important basis for this development is to 
be found in the fact that the genuine Roman view concerning the 
general nature of the supernatural tended to retain the pattern of a 
national religion appropriate to a peasantry and a landed gentry. On the 
other hand, Greek religion inclined to reflect the general structure of 
an interlocal regional knighdy culture, such as that of the Homeric age 
with its heroic gods. The partial reception of these conceptions and their 
indirect influence on Roman soil changed nothing of the national reli- 
gion, many of these conceptions attaining only an esthetic existence 
there. The primary characteristics of the Roman tradition were conserved 
virtually unchanged in ritual practices. In contrast to the Greek way, 
the Roman attitude also remained permanendy adverse to religions of 
the orgiastic or mystery type (for reasons to be discussed later). Quite 
naturally, the capacity of magical powers to develop differentiated forms 
is much less elastic than the "jurisdiction" of a god conceived as a person. 
Roman religion remained religio (whether the word be derived etymologi- 
cally from religare [to tie] or from relegere [to reconsider]); it denoted a 
tie with tested cultic formulae and a "consideration" for spirits (numina) 
of all types which are active everywhere. 

The authentic Roman religion contained, besides the trend toward 
formalism which resulted from the factors just mentioned, another im- 
portant characteristic trait that stands in contrast with Greek culture, 
namely a conception of the impersonal as having an inner relationship 
to the objectively rational. The religio of the Roman surrounded his 
entire daily life and his every act with the casuistry of a sacred law, a 
casuistry which temporally and quantitatively occupied his attention 
quite as much as the attention of the Jews and Hindus was occupied by 
their ritual laws, quite as much as the attention of the Chinese was 
occupied by the sacred laws of Taoism. The Roman priestly lists (m- 
digttamenta)* contained an almost infinite number of gods, particularized 
and specialized. Every act and indeed every specific element of an act 
stood under the influence of special numina. It was therefore a precau- 
tion for one engaged in an important activity to invoke and honor, 
besides the d» certi to whom tradition had already assigned a fixed 
responsibility and influence, various ambiguous gods (wcerti) whose 
jurisdiction was uncertain and indeed whose sex, effectiveness, and pos- 
sibly even existence were dubious. As many as a dozen of the du. certi* 
might be involved in certain farming activities. While the Romans 



i ] The Origins of Religion 409 

tended to regard the ekstasis (Latin; supers Htio) of the Greeks as a men- 
tal alienation Qabalienatio mentis') that was socially reprehensible, the 
casuistry of Roman reltgio (and of the Etruscan, which went even 
further) appeared to the Greek as slavish fear Qdeistiaimonia). The 
Roman interest in keeping the numina satisfied had the effect of pro- 
ducing a conceptual analysis of all individual 'actions into their com- 
ponents, each being assigned to the jurisdiction of a particular numen 
whose special protection it enjoyed. 

Although analogous phenomena occurred in India and elsewhere, 
the listed number of spirits (numina) to be derived and formally listed 
(indigitieren) on the basis of purely conceptual analysis, and hence intel- 
lectual abstraction, was nowhere as large as among the Romans, for 
whom ritual practice was thoroughly concentrated upon this procedure. 
The characteristic distinction of the Roman way of life which resulted 
from this abstraction (and this provides an obvious contrast to the in- 
fluence of Jewish and Asiatic rituals upon their respective cultures) was 
its ceaseless cultivation of a practical, rational casuistry of sacred law, the 
development of a sort of cautelary sacred jurisprudence 8 and the tend- 
ency to treat these matters to a certain extent as lawyers* problems. In 
this way, sacred law became the mother of rational juristic thinking. 
This essentially religious characteristic of Roman culture is still evident 
in the histories of Livy. 5n contrast to the practical orientation of the 
Jewish tradition, the Roman emphasis was always on the demonstration 
of the "correctness" of any given institutional innovation, from the point 
of view of sacred and national law. In Roman thought questions of juris- 
tic etiquette were central, not sin, punishment, penitence and salvation. 

For die ideas of deity, however, to which we must here first devote 
our attention, it was relevant that both of those processes, anthropomor- 
phization and the delimitation of jurisdictions, which ran pardy parallel 
and partly in opposition to each other, contained the tendency to propel 
ever further the rationalization of the worship of the gods as well as of 
the very idea of god, even though the starting point was the given 
variety of deities. For our purposes here, the examination of the various, 
kinds of gods and demons would be of only slight interest, although or 
rather because it is naturally true that they, like the vocabulary of a 
language, have been shaped direcdy by the economic situation and the 
historical destinies of different peoples. Since these developments are 
concealed from us by the mists of time, it is frequendy no longer possible 
to determine the reasons for the predominance of one over another kind 
of deity. These may lie in objects of nature that are important to the 
economy, such as stellar bodies, or in organic processes that the gods 



4 I O RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) t Ch. VI 

and demons possess or influence, evoke or impede; disease, death, birth, 
fire, drought, rainstorm, and harvest failure. The outstanding economic 
importance of certain events may enable a particular god to achieve 
primacy within the pantheon, as for example the primacy of the god of 
heaven. He may be conceived of primarily as the master of light and 
warmth, but among groups that raise cattle he is most frequently con- 
ceived of as the lord of reproduction. 

That the worship of chthonic deities such as Mother Earth generally 
presupposes a relative importance of agriculture is fairly, obvious, but 
such parallelism is not always direct. Nor can it be maintained that the 
heavenly gads, as representatives of a heroes' paradise beyond the earth, 
have everywhere been noble gods rather than chthonic deities of the 
peasantry. Even less can it be maintained that the development of 
Mother Earth as a goddess parallels the development of matriarchal 
organization. Nevertheless, the chthonic deities who controlled the har- 
vest have customarily borne a more local and popular character than the 
other gods. In any case, the inferiority of earth divinities to celestial 
personal gods who reside in the clouds or on the mountains is frequently 
determined by the development of a knightly culture, and there is a 
tendency to permit originally tellurian deities to take their place among 
the gods who are resident in the skies. Conversely, the chthonic deities 
frequently combine two functions in primarily agrarian cultures: they 
control the harvest, thus granting wealth, and they are also the masters 
of the dead who have been laid to rest in the earth. This explains why 
frequently, as in the Eleusinian mysteries, these two most important 
practical interests, namely earthly riches and fate in the hereafter, depend 
upon them. On the other hand, the heavenly gods are the lords of the 
stars in their courses. The fixed laws by which the celestial bodies are 
obviously regulated favor a development whereby the rulers of the celes- 
tial bodies become masters of everything that has or ought to have fixed 
laws, particularly of judicial decisions and morality. 

Both the increasing objective significance of typical components -and 
types of conduct, and subjective reflection about them, lead to functional 
specialization among the gods. This may be of a rather abstract type, as in 
the case of the gods of "incitation" (Antreibens) and many similar gods 
in India." Or it may lead to qualitative specialization according to partic- 
ular lines of activity, e.g., praying, fishing, or plowing. The classic 
paradigm of this fairly abstract form of deity-formation is the highest 
conception of (he ancient Hindu pantheon, Brahma, as the lord of 
prayer. Just as the Brahmin priests monopolized the power of effective 
prayer, i.e., of the effective magical coercion of the gods, so did a god in 



i ] The Origins of Religion 4 1 1 

turn now monopolize the disposition of this capacity, thereby controlling 
what is of primary importance in all religious behavior; as a result, he 
finally came to be the supreme -god, if not the only one. In Rome, Janus, 
as the god of the correct "beginning" [of an action] who thus decides 
everything, achieved more unpretentiously a position of relatively uni- 
versal importance. 

Yet there is no concerted action, as there is no individual action, 
without its special god. Indeed, if an association is to be permanently 
guaranteed, it must have such a god. Whenever an organization is not 
the personal power base of an individual ruler, but genuinely an associa- 
tion of men, it has need of a god of its own. 



5. Ancestor Cult and the Priesthood, of the Family Head 

To begin with, household and kin group need a god of their own, 
and they naturally turn to the spirits of the ancestors, actual or imaginary. 
To these are later added the numina and the gods of the hearth and the 
hearth fire. The importance attributed by the group to its cult, which is 
performed by the head of the house or gens, is quite variable and de- 
pends on the structure and practical importance of the family. A high 
degree of development in the domestic cult of ancestors generally runs 
parallel to a patriarchal structure of the household, since only in a patri- 
archal structure is the home of central importance for the men. But as 
the example of Israel demonstrates, the connection between these factors 
is not a simple one, for the gods of other social groups, especially those 
of a religious or political type, may by reason of their priests' power ef- 
fectively suppress or entirely destroy the domestic cult and the priestly 
functioning of the family head. 

But where the power and significance of the domestic cult and priest- 
hood remain unimpaired, they naturally form an extremely strong per- 
sonal bond, which exercises a profound influence on the family and the 
gens, unifying the members firmly into a strongly cohesive group. This 
cohesive force also exerts a strong influence on the internal economic 
relationships of the households. It effectively determines and 'stamps all 
the legal relationships of the family, the legitimacy of the wife and heirs, 
and the relation of sons to their father and of brothers to one another. 
From the viewpoint of the family and kin group, the religious repre- 
hensfbility of marital infidelity is that it may bring about a situation 
where a stranger, i.e., one not related by blood, might offer sacrifice to 
the ancestors of the kin group, which would tend to arouse their indigna- 



4 12 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

tion against the blood relatives. For the gods and numincc of a stricdy 
personal association will spurn sacrifices brought by one lacking authori- 
.zation. Strict observance of the principle of agnate relationship, wherever 
it is found, certainly is closely connected with this, as are all questions 
relating to the legitimation of the head of the household for his function- 
ing as priest. 

Similar sacral motivations have influenced the testamentary rights of 
succession of the eldest son, either as sole or preferred heir, though mili- 
tary and economic factors have also been involved in this matter. Further- 
more, it is largely to this religious motivation that the Asiatic (Chinese 
and Japanese) family and clan, and that of Rome in the Occident, owe 
the maintenance of the patriarchal structure throughout all changes in 
economic conditions. Wherever such a religious bond of household and 
Itin group exists, only two possible types of more inclusive associations, 
especially of the political variety, may emerge. One of these is the 
religiously dedicated confederation of actual or imaginary kin groups. 
The other is the patrimonial rule of a royal household over comparable 
households of the subjects, in the manner of an attenuated patriarchal- 
ism. Wherever the patrimonial rule of the royal household developed, 
the ancestors, the numina, genii or personal gods of that most powerful 
household took place beside the domestic gods belonging to subject 
households and thus lent a religious sanction to the position of the ruler. 
This was the case in the Far East, as in China, where the emperor as 
high priest monopolized the cult of the supreme spirits of nature. The 
sacred role of the genius of the Roman ruler Qprincefs), which resulted 
in the universal reception of the person of the emperor into the lay cult, 
was calculated to produce similar results. 



6. Political and Local Gods 

Where the development was in the direction of a religiously but- 
tressed confederation, there developed a special god of the political 
organzation as such, as was the case with Yahweh. That he was. a God of 
the federation — which according to tradition was an alliance between 
the Jews and the Midianites — led to a fateful consequence. His relation 
to the people of Israel, who had accepted him under oath, together with 
the political confederation and the sacred order of their social relation- 
ships, took the form of a covenant (beritK), a contractual relationship 
imposed by Yahweh and accepted submissively by Israel. From this, 
various ritual, canonical, and ethical obligations which were binding 



i ] The Origins of Religion 4*3 

upon the human partner were presumed to flow. But this contractual 
relationship also involved very definite promises by the Divine partner, 
it was deemed appropriate for the human partner to remind him of their 
inviolability, within the limits enjoined as proper vis-a-vis an omnipotent 
god. This is the primary root of the promissory character of Israelite 
religion, a character that despite numerous analogues is found nowhere 
else in such intensity. 

On the other hand, it is a universal phenomenon that the formation 
of a political association entails subordination to its corresponding god. 
The Mediterranean synotkism as was always a reorganization, if not neces- 
sarily a new creation, of a cultic community under a fdiis deity. The 
classical bearer of the important phenomenon of a political local god was 
of course the -polis, yet it was by no means the only one. On the contrary, 
ever)' permanent political association had a special god who guaranteed 
the success of the political action of the group. When fully developed, 
this god was altogether exclusive with respect to outsiders, and in princi- 
ple he accepted offerings and prayers only from the members of his 
1 group, or at least he was expected to act in this fashion. But since one 
could not be certain of this, disclosure of the method of effectively in- 
fluencing the god was usually prohibited stricdy. The stranger was thus 
not only a political, but also a religious alien. Even when the god of 
another group had the same name and attributes as that of one's own 
politv, he was still considered to be different. Thus the Juno of the 
Veientines is not that of the Romans, just as for the Neapolitan the 
Madonna of each chapel is different from the others; he may adore the 
one and berate or dishonor the other if she helps his competitors. An 
effort may be made to render the god disloyal to one's adversaries by 
promising him, for example, welcome and adoration in the new territory 
if only he will abandon the foes of the group in question (evocare deoi). 
This invocation to the gods of a rival tribe to reject their group in behalf 
of another was practiced by Camillus before Veii. T The gods of one group 
might be stolen or otherwise acquired by another group, but this does not 
always accrue to the benefit of the latter, as in the case of the ark of the 
Israelites which brought plagues upon the Philistine conquerors. 

In general, political and military conquest also entailed the victory of 
the stronger god over the weaker god of the vanquished group. Of course 
not every god of a political group was a local god, spatially anchored to 
the group's administrative center. The lares of the Roman family changed 
their venue as the family moved; the God of Israel was represented, in 
the narrative of the wandering in the wilderness, as journeying with and 
at the head of his people. Yet, in contradiction to this account, Yahweh 



414 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

was also represented — and this is his decisive hallmark — as a God from 
afar, a God of the nations who resided on Sinai, and who approached 
in the storm with his heavenly hosts (zehaotK) only when the military 
need of his people required his presence and participation. It probably 
has been assumed correctly that this particular quality of "effective in- 
fluence from afar," which resulted from the reception of a foreign god 
by Israel, was a factor in the evolution of the concept of Yahweh as the 
universal and omnipotent God. For, as a rule, the fact that a god was 
regarded as a local deity, or that he sometimes demanded of his fol- 
lowers exclusive "monolatry" did not lead to monotheism, but rather 
tended to strengthen religious particularism. Conversely, the develop- 
ment of local gods resulted in an uncommon strengthening of political 
particularism. 

This was true even of the polls, which was as exclusive of other 
communities as one church is toward another, and which was absolutely 
opposed to the formation of a unified priesthood overarching the various 
groupings. In marked contrast to our state, which is conceived as a com- 
pulsory territorial institution, the polls, as a result of this particularism, 
remained essentially a personal association of otitic adherents of the civic 
god. The polis was further organized internally into personal cultic 
associations of tribal, clan, and domestic gods, which were exclusive 
with respect to their individual cults. Moreover, the polls was also exclusive 
internally, with regard to those who stood apart from the particular cults 
of kin groups and households. Thus in Athens, a man who had no 
household god (Zeus herkeios~) could not hold office, as was the case in 
Rome with anyone who did not belong to the association of the patres. 
The special plebeian official (trihuttus plehis) was covered only by a hu- 
man oath (sacro sanctus'); he had no auspices, and hence no legitimate 
imperium, but only a potestas* 

The local geographical connection of the association's god reached its 
maximum development where the very site of a particular association 
came to be regarded as specifically sacred to the god. This was increas- 
ingly the case of Palestine in relation to Yahweh, with the result that the 
tradition depicted him as a god who, living far off but desiring to par- 
ticipate in ( his cultic association and to honor it, required cartloads of 
Palestinian soil to be brought to him. 

The rise of genuinely local gods is associated not only with perma- 
nent setdement, hut also with certain other conditions that mark the 
local association as an agency of political significance. Normally, the god 
of a locality and his cultic association reach fullest development on the 
foundation of the city as a separate political association with corporate 



i ] The Origins of Religion 4 1 5 

rights, independent of the court and the person of the ruler. Conse- 
quently, sucli a full development of the local god is not found in India, 
the Far East, or Iran, and occurred only in limited measure in northern 
Europe, in the form of the tribal god. On the other hand, outside the 
sphere of autonomous cities this development occurred in Egypt, as early 
as the stage of zoolatric religion, in the interest of apportioning districts. 
From the city-states, local deities spread to confederacies such as those of 
the Israelites, Aetolians, etc., which were oriented to this model. From 
the viewpoint of the history of ideas, this concept of the association as the 
local carrier* of the cult is an intermediate link between the strict patri- 
monial view of political action and the notion of the purely instrumental 
association and compulsory organization, such as the [Gierke and Preuss] 
view of the modern "territorial corporate organization" (.Gebietskorper- 
schaft). 

Not only political associations but also occupational and vocational 
associations have their special deities or saints. These were still entirely 
'absent in the Vedic pantheon, which was a reflection of that particular 
level of economic development. On the other hand, the ancient Egyptian 
god of scribes indicates bureaucratization, just as the presence all over 
the globe of special gods and saints for merchants and all sorts of crafts 
reflects increasing occupational differentiation. As late as the 19th cen- 
tury, the Chinese army carried through the canonization of its war god, 
signifying that the military was regarded as a special vocation among 
others. This is in contrast to the conception of the war gods of the 
ancient Mediterranean littoral and of the Medes, who were always great 
national gods. 



7. Universalism and Monotheism in Relation to Everyday 
Religions Needs and Political Organization 

JuSt as the forms of the gods vary, depending on natural and social 
conditions, so too there arc variations in the potential of a god to achieve 
primacy in the pantheon, or to monopolize divinity. Only Judaism and 
Islam are strictly monotheistic in their essence. The Hindu and Christian 
forms of the sole or supreme deity are theological concealments of the 
fact that an important and unique religious interest, namely in salvation 
through the incarnation of a divinity, stands in the way of strict mono- 
theism. The path to monotheism has been traversed with varying degrees 
of consistency, but nowhere — not even during the Reformation— was the 



4 I 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [ Ck. VI 

existence of spirits and demons permanendy eliminated; rather, they were 
simply subordinated unconditionally to the one god, at least in theory. 

The decisive consideration was and remains: who is deemed to exert 
the stronger influence on the interests of the individual in his everyday 
life, the theoretically supreme god or the lower spirits and demons? If the 
spirits, then the religion of everyday life is decisively determined by 
them, regardless of die official god-concept of the ostensibly rationalized 
religion. Where a political god of a locality developed, it was natural 
enough that he frequently achieved primacy. Whenever a plurality of 
setded communities with established local gods expanded the area of 
the political association through conquest, the usual result was that 
various local gods of the newly amalgamated communities were there- 
upon associated into a religious totality. Within this amalgam, the em- 
pirical and functional specializations of the gods, whether original or 
subsequendy determined by new experiences concerning the special 
spheres of the gods' influences, would reappear in a division of labor, 
with varying degrees of clarity. 

The local deities of the most important political and religious centers 
(and hence of the rulers and priests in these centers), e.g., Marduk of 
Babel or Amon of Thebes, thus advanced to the rank of the highest gods, 
only to disappear again with the eventual destruction or removal of the 
residence, as happened in the case of Assur after the fall of the Assyrian 
empire. Once a political association came under the tutelage of a par- 
ticular deity, its protection appeared inadequate until the gods of the 
individual members were also incorporated, "associated," and adopted 
locally in a sort of "synoikism." This practice, so common in Antiquity, 
was re-enacted when the great sacred relics of the provincial cathedrals 
were transferred to the capital of the unified Russian empire." 

The possible combinations of the various principles involved in the 
construction of a pantheon or in the achievement of a position of primacy 
by one or another god are almost infinite in number. Indeed, the juris- 
dictions of the divine figures are as fluid as those of the officials of patri- 
monial regimes. Moreover, the differentiation among jurisdictions of the 
various gods is intersected by the practice of religious attachment to a 
particulady reliable god, or courtesy to a particular god who happens to 
be invoked. He is then treated as functionally universal; thus all kinds 
of functions are attributed to him, even functions which have been 
assigned previously to other deities. This is the "henotheism" which Max 
Mtiller erroneously assumed to constitute a special stage of evolution. 10 
In the attainment of primacy by a particular god, purely rational factors 
have often played an important role. Wherever a considerable measure of 



i ] _. The Origin^ of Religion 4 i 7 

constancy in regard to certain prescriptions became clearly evident — most 
often in the case of stereotyped and fixed religious rites — and where this 
was recognized by rationalized religious thought, then those deities that 
evinced the greatest regularity in their behavior, namely the gods of 
heaven and the stars, had a chance to achieve primacy. 

Yet in the religion of everyday life, only a comparatively minor role 
was played by those gods who, because they exerted a major influence 
upon universal natural phenomena, were interpreted by metaphysical 
speculation as very important and occasionally even as world creators. 
The reason for this is that these natural phenomena vary but little in 
their course, and hence it is not necessary to resort in everyday religious 
practice to the devices of sorcerers and priests in order to influence them. 
A particular god might be of decisive importance for the entire religion of 
a people (e.g., Osiris in Egypt) if he met a pressing religious need, in 
this case a soteriological one, yet he might not achieve primacy in the 
pantheon. Reason favored the primacy of universal gods; and every con- 
sistent crystallization of a pantheon followed systematic rational principles 
to some degree, since it was always influenced by professional sacerdotal 
rationalism or by the rational striving for order on the part of secular 
individuals. Above all, it is the aforementioned similarity of the rational 
regularity of the stars in their heavenly courses, as regulated by divine 
order, to the inviolable sacred social order in terrestrial affairs, that makes 
the universal gods the responsible guardians of both these phenomena. 
Upon these gods depend both rational economic practice and the secure, 
regulated hegemony (.Herrschaft) of sacred norms in the community. 
The priests are the primary protagonists and representatives of these 
sacred norms. Hence the competition of the stellar deities Varuna and 
Mitra, the guardians of the sacred order, with the storm god Indra," a 
formidable warrior and the slayer of the dragon, was a reflection of the 
conflict between the priesthood, striving for a firm regulation and control 
of life, and the powerful warlike nobility. Among this warrior class, the 
appropriate reaction to supernatural powers was to believe in a heroic god 
avid for martial exploits as well as in the disorderly irrationality of fate 
and adventuresomeness. We shall find this same contrast significant in 
many other contexts. 

The ascension of celestial or astral gods in the pantheon is advanced by 
a priesthood's propagation of systematized sacred ordinances, as in India, 
Iran, or Babylonia, and is assisted by a rationalized system of regulated sub- 
ordination of subjects to their overlords, such as we find in the bureaucratic 
states of China and Babylonia. In Babylonia, religion plainly evolved 
toward a belief in the dominion of the stars, particularly the planets, over 



4 I 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ch. VI 

all things, from the days of the week to the fate of the individual in the 
afterworld. Development in this direction culminates in astrological 
fatalism. But this development is actually a product of later sacerdotal 
lore, and it is still unknown to the national religion of the politically in- 
dependent state. A god may dominate a pantheon without being an in- 
ternational or "universal" deity. But his dominance of a pantheon usually 
suggests that he is on his way to becoming that. 

As reflection concerning the gods deepened, it was increasingly felt 
that the existence and nature of the deity must be established unequivocally 
and that the god should be "universal" in this sense. Among the Greeks, 
philosophers interpreted whatever gods were found elsewhere as equiva- 
lent to and so identical with the deities of the moderately organized 
Greek pantheon. This tendency toward universalization grew with the 
increasing predominance of the primary god of the pantheon, that is, as 
he assumed more of a "monotheistic" character. The growth of empire 
in China, the extension of the power of the Brahmin caste throughout 
all the varied political formations in India, and the development of the 
Persian and Roman empires favored the rise of both universalism and 
monotheism, though not always in the same measure and with quite 
different degrees of success. 

The growth of empire (or comparable adjustment processes that tend in 
the same direction) has by no means been the sole or indispensable lever 
for the accomplishment of this development. In the Yahweh cult, the 
most important instance in the history of religion, there evolved at least 
a first approach to universalistic monotheism, namely monolatry, as a 
result of a concrete historic event — the formation of a confederacy. In this 
case, universalism was a product of international politics, of which the 
pragmatic interpreters were the prophetic protagonists of the cult of 
Yahweh and the ethics enjoined by him. As a consequence of their 
preaching, the deeds of other nations that were profoundly affecting 
Israel's vital interests also came to be regarded as wrought by Yahweh. 
At this point one can see clearly the distinctively and eminently historical 
character of the theorizing of the Hebrew prophets, which stands in 
sharp contrast to the speculations concerning nature characteristic of the 
priesthoods of India and Babylonia. Equally striking is the ineluctable 
obligation resulting from Yahweh 's promises: the necessity of interpreting 
the entire history of the Hebrew nation as consisting of the deeds of Yah- 
weh, and hence as constituting a pattern of "world history" in view of 
the many dire threats to the people's survival, the historical contradictions 
to the divine promises, as well as the inextricable linkage with the 
destinies of other nations. Thus, the ancient warrior god of the con- 



i ] - The Origins of Religion 4 1 9 

federacy, who had become the local god of the city of Jerusalem, took on 
the prophetic and universalistic traits of transcehdendy sacred omni- 
potence and inscrutability. 

In Egypt, the monotheistic, and hence necessarily universalistic, 
transition of Amenbotep IV (Ikhnaton) to the solar cult resulted from an 
entirely different situation. One factor was again the extensive rationalism 
of the priesthood, and in all likelihood of the laity as well, which was of 
a purely naturalistic character, in marked contrast to Israelite prophecy. 
Another factor was the practical need of a monarch at the head of a 
bureaucratic unified state to break the power of the priests by eliminating 
the multiplicity of their gods, and to restore the ancient power of the 
deified Pharaoh by elevating the monarch to the position of supreme 
solar priest. On the other hand, the universalistic monotheism of Chris- 
tianity and Islam must be regarded as derivative of Judaism, while the 
relative monotheism of Zoroastrianism was in all likelihood determined at 
least in part by Near Eastern rather than intra-Iranian influences. All of 
these monotheisms were critically influenced by the distinctive character 
of "ethical" prophecy, rather than by the "exemplary" type — a distinction 
to be expounded later [Hi: 5]. All other relatively monotheistic and uni- 
versalistic developments are the products of the philosophical speculations 
of priests and laymen. They achieved practical religious importance only 
when they became associated with the quest for salvation. (We shall re- 
turn to this matter later.) 

Almost everywhere a beginning was made toward some form of con- 
sistent monotheism, but practical impediments thwarted this develop- 
ment in the workaday mass religion {Alltagsreligion), with the excep- 
tions of Judaism, Islam, and Protestant Christianity. There are different 
reasons for the failure of a consistent monotheism to develop in different 
cultures, but the main reason was generally the pressure of the powerful 
material and ideological interests vested in the priests, who resided iri the 
' cultic centers and regulated the cults of the particular gods. Still another 
impediment to the development of monotheism was the religious need of 
the laity for an accessible and tangible familiar religious object which 
could be brought into relationship with concrete life situations or with 
definite group of people to the exclusion of outsiders, an object which 
would above all be accessible to magical influences. The security provided 
by a tested magical manipulation is far more reassuring than the experi- 
ence of worshipping a god who — precisely because he is omnipotent — is 
not subject to magical influence. The crystallization of developed con- 
ceptions of supernatural forces as gods, even as a single transcendent god, 
by no means automatically eliminated the ancient magical notions, not 



420 jRELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [Ch. VI 

even in Christianity. It did produce, however, the possibility of a dual 
relationship between men and the supernatural This must now be dis- 
cussed. 



NOTES 

i. Since the Fiscboff translation did not contain a footnote apparatus, an at- 
tempt had to be made to identify at least Weber's major references. Unless other- 
wise indicated, all notes are by Roth. 

In this unfinished "chapter" on religious groupings, Weber provides a setting 
for his earlier writings on the "Protestant Ethic and the Spirit of Capitalism" and 
the 1906 version of "The Protestant Sects and die Spirit of Capitalism" (see 
Getth and MiHs, eds., op. dt„ 302—22). The proper place of the present study 
within his other studies in the sociology of religion is indicated in the introduc- 
tion to the three-volume Collected Essays in the Sociology of Religion (see The 
Protesfcmt Ethic, transl. T. Parsons, 13-31, esp. 29ff.), where Weber writes: "Some 
justification is needed for the fact that ethnographic material has not been 
utilized to anything like the extent which the value of its contributions naturally 
demands in any really thorough investigation, especially in Asiatic religions. This 
limitation has not only been imposed because human powers of work are re- 
stricted. This omission has also seemed to be permissible because we are here nec- 
essarily dealing with the religious ethies of the classes which were the culture- 
bearers of their respective countries. We are concerned with the influence which 
their conduct has had. Now it is quite true that this can only be completely 
known in all its details when the facts of ethnography and folklore have been 
compared with it. Hence we must expressly admit and emphasize that this is a 
gap to which the ethnographer will legitimately object. I hope to contribute some- 
thing to the closing of this gap in a systematic study of the Sociology of Religion." . 

Tit present book-length chapter is part of this systematic study. However, the 
ethnographic treatment in the first three subchapters remains sketchy since Weber 
wants to press on to the core of his analysis. After working on the present chapter, 
Weber's next writing in this field was his essay on Confucianism (begun in 191 3). 

2. See Hermann Usener, Gdtternomen. Versuch einer Lehre von der religi- 
osen Begriftsbildung (Bonn; Cohen, 1896), 2795. (W) 

3. Indigamenta: See Chantepie-Bertholet-Lehmann (abbr. Chant.), Lehr- 
buck der Religionsgeschichte (Tubingen: Mohr, 1925), 4th ed., vol. I, 69. (W) 
Weber used the earlier editions as one of his sources. 

4. Cf. Chant., op. at., vol. II, 455^ (W) 

5. On cautelary jurisprudence, see below, ch. Vffi:«i:i. — Ludwig Deubner 
(in Chant., loc. tit.') emphasizes the magical nature of the Roman insistence on 
ritual correctness and rejects the interpretation of this practice as a "specifically 
juristic approach." However, this does not necessarily conflict with Weber's 
presentation which derives Roman legal rationalism from these magical sources. 

6. Cf. Helmuth von Glasenapp, Der Hinduismus (Munich: Wolff, 1922), 
25. (W) 

7. According to legend, M. Furius Camillus was appointed dictator at a 
critical juncture in the long war with Veii ca. 400 B.C. The legend has certain 
parallels with the siege and capture of Troy. Camillus is alleged to have used a 



i ]' The Origins of Religion 421 

secret passage to the altar of Juno in Veii tit order to offer a sacrifice to her. The 
goddess changed her allegiance and was taken in triumph to Rome where she re- 
sided forever after on the Aventine Hill. 

"• * 8. ForafulIerdiscussJon,seeThcC(ty,ch.XVI:iv:4. 

■.j. 9. See also infra, 1 174. Weber may have had in mind the transfer of impor- 
trar cult objects — such as the icon of the Madonna of Kazan (from Moscow) and 

- the remains of Alexander Nevskii (from Vladimir) — to his newly founded capital 
dry on the Neva by Peter the Great; cf Anatole Leroy-Beaulieu, The Empire of 
the Tsars and the Russians (transl. 2. A. Ragozin, London 1898), III, ioof., 197^. 
In earlier centuries, similar moves played a role in thegradual ascendance of Moscow 
over the othjpr udel principalities or reenforced it. Thus in 1395 the Madonna of 
Vladimir, the former seat of the Metropolitan, was transferred to Moscow, and at 
various times subjugated competing cities had to hand over their main church bells 
(Tver in 1 340; Great Novgorod in 1 478, Pskov in 1 5 1 o — in the latter two cases, 
however, this was probably of more directly political significance, since these were 
the bells for the citizen assembly, the veche). At a later date, in the 1640s, the 
remains of several Russian Patriarchs were transferred for reburial in Moscow. Cf. 
Karl Stablin, Geschi$hte Russlands (Stuttgart 1923), I, 14a, 164, 213, 238; Albert 
M. Ammann S.J., Ostslawische Kirchengesckichte (Vienna 1950), 42, 282. 

roXSee Max Miiller, Anthropological Religion (London: Longmans, Green, 
1892), T&iMuller's three stages are Henotheism (each god supreme in his own 
domain), Polytheism (one god supreme among many), Monotheism (the su- 
premacy cf the\one and only god); see also id,, Contributions to the Science of 
Mythology (Lontfon: Longmans, Green, 1897), 1388. 

11. On Varuna, Mitra and Indra, cf. Weber, "Hinduismus und Buddhistnus," 
in GAtRS, II, 29, $75 (Religion of India, 27, 1 70), 



42 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 



11 

Magic and Religion 



i . Magical Coercion Versus Swpflication, Prayer and 
Sacrifice 

A power conceived by analogy to man endowed with a sou] may be 
coerced into the service of man, just as the naturalistic power of a spirit 
could be coerced. Whoever possesses the requisite charisma for employ- 
ing the proper means is stronger even than the god, whom he can compel 
to do his will. In these cases, religious behavior is not worship of the god 
but rather coercion of the god,* and invocation is not prayer but rather 
the exercise of magical formulae. Such is one ineradicable basis of popu- 
lar religion, particularly in India. Indeed, such magical coercion is uni- 
versally diffused, and even the Catholic priest continues to practice 
something of this magical power in executing the miracle of the mass and 
in exercising the power of the keys. By and large this is the original, 
though not exclusive, origin of the orgiastic and mimetic components of 
the religious cult — especially of song, dance, drama, and the typical fixed 
formulae of prayer. 

The process of anthropomorphization may also take the form of at- 
tributing to the gods the human behavior patterns appropriate to a 
mighty terrestrial potentate, whose discretionary favor can be obtained 
by entreaty, gifts, service, tributes, cajolery, and bribes- On the other 
hand, his favor may be earned as a consequence of the devotee's own 
faithfulness and good conduct in conformity with his will. In these ways, 
the gods are conceived by analogy to earthly rulers : mighty beings whose 
power differs only in degree, at least at first. As gods of this type evolve, 
worship of divinity comes to be regarded as a necessity. 

Of course, the two characteristic elements of divine worship, prayer 
and sacrifice, have their origin in magic. In prayer, the boundary between 
magical formula and supplication remains fluid. The technically ra- 
tionalized enterprise of prayer On th.e form of prayer wheels and similar 
devices, or of prayer strips hung in the wind or attached to icons of gods 



U ] Magic and Religion 4 2 

or saints, or of carefully measured rosary bead counting— virtually all < 
which are products of the methodical compulsion of the gods by th 
Hindus) everywhere stands far closer to magic than to entreaty. Jndividui 
prayer as real supplication is found in religions that are otherwise ur; 
differentiated, but in most cases such prayer has a purely bu'siness-Iikf 
rationalized form that sets forth the achievements of the supplicant ii 
behalf of the god and then claims adequate recompense therefor. 

Sacrifice, at its first appearance, is a magical instrumentality that ir 
part stands at the immediate service of the coercion of the gods. For tht 
gods also need the soma juice 3 of the sorcerer-priests, the substance which 
engenders their ecstasy and enables them to perform their deeds. This is 
the ancient notion of the Aryans as to why it is possible to coerce the 
gods by sacrifice. It may even be held that a pact can be concluded with 
the gods which imposes obligations on both parties; this was (he fateful 
conception of the Israelites in particular. Still another view of sacrifice 
holds that it is a means of deflecting, through magical media, the wrath 
of the god upon another object, a scapegoat or above all a human 
sacrifice. 

But another motive for sacrifice is of greater importance, and it is 
probably older too: the sacrifice, especially of animals, is intended as a 
communio, a ceremony of eating together which serves to produce a fra- 
ternal community between the sacrificers and the god. This represents a 
transformation in the significance of the even older notion that to rend 
and consume a strong (and later a sacred) animal enables the eaters to 
absorb its potencies. Some such older magical meaning — and there are 
various other possibilities — may still provide the act of sacrifice with its 
essential form, even after genuine cultic views have come to exert con- 
siderable influence. Indeed, such a magical significance may even regain 
dominance over the cultic meaning. The sacrificial rituals of the Brah- 
manas, and even of the Atharva Veda, were almost purely sorcery, in 
contrast to the ancient Nordic ones. On the other hand, there are many 
departures from magic, as when sacrifices are interpreted as tribute. First 
fruits may be sacrificed in order that die god may not deprive man of the 
enjoyment of the remaining fruits; and sacrifice is often interpreted as a 
self-imposed punishment or atonement that averts the wrath of the gods 
before it falls upon the sacrificer. To be sure, this does not yet involve 
any awareness of sin, and it initially takes place in a mood of cool and 
calculated trading, as for example in India. 

An increasing predominance of non-magical motives is later brought 
about by the growing recognition of the power of a god and of his 



4 2 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

character as a personal overlord. The god becomes a great lord who may 
fail on occasion, and whom one cannot approach with devices of magical 
compulsion, but only with entreaties and gifts. But if these motives add 
anything new to mere wizardry, it is initially something as sober and 
rational as the motivation of magic itself. The pervasive and central theme 
isr do ut des. This aspect clings to the routine and the mass religious 
behavior of all peoples- at all times and in all religions. The normal 
situation is that the burden of all prayers, even in the most other-worldly 
religions, is the aversion of the external evils of this world and the in- 
ducement of the external advantages of this world. 

Every aspect-of religious phenomena that points beyond evils and 
advantages in this world is the work of a special evolutionary process, one 
characterized by distinctively dual aspects. On the one hand, there is an 
ever-broadening* rational systematization of the god concept and of the 
thinking concerning the possible relationships of man to the divine. On 
the other hand, there ensues a characteristic recession of the original, 
practical and calculating rationalism. As such primitive rationalism re- 
cedes, the significance of distinctively religious behavior is sought less and 
less in the purely external advantages of everyday economic success. 
Thus, the goal of religious behavior is successively "irrationalized" until 
finally otherworldly non-economic goals come to represent what is dis- 
tinctive in religious behavior. But for this very reason the extra-economic 
evolution just described requires as one of its prerequisites the existence 
of specific personal carriers. 

The relationships of men to supernatural forces which take the forms 
of prayer, sacrifice and worship may be termed "cult" QKultus) and 
"religion" as distinguished from "sorcery" which is magical coercion. 
Correspondingly, those beings that are worshipped and entreated re- 
ligiously may be termed "gods," in contrast to "demons," which are 
magically coerced and charmed. There may be no instance in which it is 
possible to apply this differentiation absolutely, since the cults we have 
just called "religious" practically everywhere contain numerous magical 
components. The historical development of the aforementioned differen- 
tiation frequendy came about in a very simple fashion when a secular or 
priestly power suppressed a cult in favor of a new religion, with the older 
gods continuing to live on as demons. 



2. The Differentiation of Priests from Magicians 

The sociological aspect of this differentiation [into gods and demons] 
is the rise of the "priesthood" as something distinct from "practitioners of 



« ] Magic and Religion 4 2 5 

magic." Applied to reality, this contrast is fluid, as are almost all socio- 
logical phenomena. Even the theoretical differentiae o£ these types are 
not unequivocally determinable. Following the distinction between "cult" 
and "sorcery," one may contrast those professional functionaries who in- 
fluence the gods by means of worship with those magicians who coerce 
demons by magical means; but in many great religions, including Chris- 
tianity, the concept of the priest includes such a magical qualification. 

Or the term "priest" may be applied to the functionaries of a regularly 
organized and permanent enterprise concerned with influencing the gods, 
in contrast with the individual and occasional efforts of magicians. Even 
this contrast is bridged over by a sliding scale of transitions, but as a pure 
type the priesthood is unequivocal and can be said to be characterized by 
the presence of certain fixed cultic centers associated with some actual 
cultic apparatus. 

Or it may be thought that what is decisive for the concept of priest- 
hood is that the functionaries, regardless of whether their office is heredi- 
tary or persona], be actively associated with some type of sodal organiza- 
tion, of which they are employees or organs operating in the interests 
of the organization's members, in contrast with magicians, who are self- 
employed. Yet even this distinction, which is clear enough fconceptually, 
is fluid in actuality. The sorcerer is not infrequently a member of an or- 
ganized guild, and is occasionally the member of a hereditary caste which 
may hold a monopoly of magic within the particular community. Even 
the Catholic priest is not always the occupant of an official post. In Rome 
he is occasionally a poor mendicant who lives a hand-to-mouth existence 
from the proceeds of single masses which he performs. 

Yet another distinguishing quality of the priest, it is asserted, is his 
professional equipment of special knowledge, fixed doctrine, and voca- 
tional qualifications, which brings him into contrast with either sorcerers 
or prophets, who exert their influence by virtue of personal gifts (char- 
isma) made manifest in miracle and revelation. But this again is no 
simple and absolute distinction, since the sorcerer may sometimes be very^ 
learned, while deep learning need not always characterize priests. Rather,, 
the distinction between priest and magician must be established qualita- 
tively with reference to the different nature of the learning in the two 
cases. As a matter of fact we must later, in our exposition of the forms of 
domination [see ch. XIV:9, and also ch. XV:4], distinguish the rational 
training and discipline of priests from the different preparation of charis- 
matic magicians. The latter preparation proceeds in part as an "awaken- 
ing" using irrational means and aiming at rebirth, and proceeds in part 
as a training in purely empirical lore. But in this case also, the two 
contrasted types flow into one another. 



426 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

"Doctrine" has already been advanced as one of the fundamental 
traits of the priesthood. We may assume that the outstanding marks of 
doctrine are the development of a rational system of religious concepts 
and (what is of the utmost importance for us here) the development of a 
systematic and distinctively religious ethic based upon a consistent and 
stable doctrine which purports to be a "revelation." An example is found 
in Islam, which contrasted scriptural religion with simple paganism- But 
this description of priesthood and this assumption about the nature of 
doctrine would exclude from the concept of priesthood the Japanese 
Shinto priests and such functionaries as the mighty hierocrats of the 
Phoenicians. The adoption of such an assumption would have the effect - 
of making the decisive characteristic of the priesthood a function which, 
while admittedly important, is not universal. 

It is more correct for our purpose, in order to do justice to the diverse 
and mixed manifestations of this phenomenon, to set up as the crucial 
feature of the priesthood the specialization of a particular group of per- 
sons in the continuous operation of a cultic enterprise, permanently asso- 
ciated with particular norms, places and times, and related to specific 
social groups. There can be no priesthood without a cult, although there 
may well be a cult without a specialized priesthood. The latter was the 
case in China, where state officials and the heads of households ex- 
clusively conducted the services of the official gods and the ancestral 
spirits. On the other hand, both novitiate and doctrine are to be found 
among typical, pure magicians, as in the brotherhood of the Hametze 
among the Indians, and elsewhere in the world. These magicians may 
wield considerable power, and their essentially magical celebrations may 
play a central role in the life of their people. Yet they lack a continuously 
operative cult, and so the term "priests" cannot be applied to them. 

A rationalization of metaphysical views and a specifically religious 
ethic are usually missing in the case of a cult without priests, as in the 
case of a magician without a cult. The full development of both a meta- 
physical rationalization and a religious ethic requires an independent and 
professionally trained priesthood, permanendy occupied with the cult 
and with the practical problems involved in the cure of souls. Con- 
sequendy, ethics developed into something quite different from a meta- 
physically rationalized religion in classic Chinese thought, by reason of the 
absence of an independent priesthood; and this also happened with the 
ethics of ancient Buddhism, which lacked both cult and priesthood. 

Moreover, as we shall later explicate, the rationalization of religious 
life was fragmentary or entirely missing wherever the priesthood failed 
to achieve independent status and power, as in classical Antiquity. 



« ] Magic and Religion 4 2 7 

Wherevera status group of primitive magicians and sacred musicians did 
rationalize magic, but failed to develop a genuinely priestly office (as 
was the case with the Brahmins in India), the priesthood developed in 
a peculiar way. However, not every priesthood developed what is dis- 
tinctively new as against magic: a rational metaphysic and a religious 
ethic. Such developments, generally presupposed the operation of one or 
both of two forces outside the priesthood : prophets, the bearers of meta- 
physical or religious-ethical revelation, and the laity, the non-priestly 
devotees of the cult. 

Before we examine the manner in which these factors outside the 
priesthood influenced religion sufficiently to enable it to transcend the 
stages of magic, which are rather similar the world over, we must discuss 
some typical trends of religious evolution which are set in motion by the 
existence of vested interests of a priesthood in a cult. 



3. Reactions to Success and Failure of Gods and Demons 

Whether one should at all try to influence a particular god or demon by 
coercion or by entreaty is the most basic question, and the ansiver to it 
depends only upon proven effect. As the magician must keep up his 
charisma, so too the god must continually demonstrate his prowess. 
Should the effort to influence a god prove to be permanendy ineffica- 
cious, then it is concluded that either the god is impotent or the correct 
procedure of influencing him is unknown, and he is abandoned. In 
China, to this day, a few striking successes suffice to enable a god to 
acquire prestige and power (skew, ting), thereby winning a sizeable 
circle of devotees. The emperor, as the representative of his subjects 
vis-a-vis the heavens, provides the gods with rides and other distinctions 
whenever they have proven their capacity. Yet a few striking disappoint- 
ments subsequently will suffice to empty a temple forever. Conversely, 
, the historical accident that Isaiah's steadfast prophecy actually came to 
fulfillment — God would not permit Jerusalem to fall into the hands of 
the Assyrian hordes, if only the Judean king remained firm — provided 
the subsequendy unshakeable foundation for the position of this god and 
his prophets. 

Something of this kind occurred earlier in respect to the pre-animisric 
fetish and the charisma of those possessing magical endowment. In the 
event of failure, the magician possibly paid with his life. On the other 
hand, priests have enjoyed the contrasting advantage of being able to 
deflect the blame for failure away from themselves and onto their god. 



4 2 8 BBLIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. Vi 

Yet even the priests' prestige is in danger of falling with that of their 
gods. However, priests may find ways of interpreting failures in such a 
manner that the responsibility falls, not upon the god, but upon the 
behavior of the god's worshippers. There might even arise from such 
interpretation the idea of worshipping the god, as distinct from coercing 
nim. The problem of why the god has not hearkened to his devotees 
might then be explained by stating that they had not honored their god 
sufficiendy, that they had not satisfied his desires for sacrificial blood or 
soma juice, or finally that they neglected him in favor of other gods. 
Even renewed and increased worship of the god is of no avail in some 
situations, and since the gods of the adversaries remain more powerful, 
the end of his reputation is at hand. In such cases, there may be a de- 
fection to the stronger gods, although there still remain methods of ex- 
plaining the wayward conduct of the old god in such a way that his 
prestige might not dwindle and might even be enhanced. Under certain 
circumstances priests succeeded even in excogitating such methods. The 
most striking example is that of the priests of Yahweh, whose attachment 
to his people became, for reasons to be expounded later, ever stronger 
as Israel ,became increasingly enmeshed in the toils of tragedy. But for 
this to happen, a new series of divine attributes must evolve. 

The qualitative superiority of anthropomorphically conceived gods 
and demons over man himself is at first only relative. Their passions and 
their avidity for pleasure are believed to be unlimited, like those of strong 
men. But they are neither omniscient nor omnipotent (obviously only 
one could possess these attributes), nor necessarily eternal (the gods of 
Babylon and of the Germans were not). However, they often have the 
ability to secure their glamorous existence by means of magical food and 
drink which they have reserved for themselves, much as human lives 
may he prolonged by the magical potions of the medicine man. The only 
qualitative differentiation that is made between these anthropomorphic 
gods and demons is that between powers useful to man and those harm- 
ful to man. Naturally, the powers useful to him are usually considered 
the good and high gods, who are to be worshipped, while the powers 
harmful to him are usually the lower demons, frequendy endowed with 
incredible guile or limitless spite, who are not to be worshipped but 

: magically exorcised. 

Yet the differentiation did not always take place along this particular 
line, and certainly not always in the direction of degrading the masters 

of the noxious forces into demons. The measure of cultic worship that 
gods receive does not depend upon their goodness, nor even upon their 
cosmic importance. Indeed, some very great and good gods of heaven 



« ] Magic and Religion 4 2 9 

frequently lack cults, not because they are too remote from man, but 
because their influence seems equable, and by its very regularity appears 
to be so secure that no special intervention is required. On the other 
hand, powers of clearly diabolical character, such as Rudra, the Hindu 
gcd of pestilence, are not always weaker than the good gods, but may 
actually be endowed with a tremendous power potential. 



4. Ethical Deities and Increasing Demands upon Them 

In addition to the important qualitative differentiation between the 
good and diabolical forces, which assumed considerable importance in 
certain cases, there might develop within the pantheon gods of a dis- 
tinctively ethical character — and this is particularly important to us at 
this point. The possibility that a god may possess ethical qualities is by 
no means confined to monotheism. Indeed, this possibility exists at vari- 
ous stages in the formation of a pantheon; but it is at the level of 
'monotheism that this development has particularly far-reaching conse- 
quences. A specialized functional god of legislation and a god who 
controls the oracle will naturally be found very frequendy among the . 
ethical divinities. 

The art of "divining" at first grows out of the magic based on the ,» 
belief in spirits, who function in accordance with certain principles of 
order, as do living creatures. Once knowing how the spirits operate, one 
can predict their behavior from symptoms or omens that make it pos- 
sible to surmise their intentions, on the basis of previous experience. 
Where one builds houses, graves and roads, and when one undertakes 
economic and political activities is decided by reference to that which 
experience has established as the favorable place or time. Wherever a 
social group, as for example the so-called priests of" Taoism in China, 
makes its living from the practice of the diviner's art, its craft 
Qeng shut) may achieve ineradicable power. When this happens, all 
efforts at economic rationalization founder against the opposition of the 
spirits. Thus, no location for a railroad or factory could be suggested 
without creating some conflict with them. Capitalism was able to cope ' 
with this factor only after it had reached its fullest power. As late as the 
Russo-Japanese War, the Japanese army seems to have missed several 
favorable opportunities because the diviners had declared them to be of 
ill omen. On the other hand, [the Spartan regent] Pausanias had already 
adroitly manipulated the omens, favorable and otherwise, at Plataea 



4 3° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

[479 B.C.] to make them fit the requirements of military strategy. When- 
ever the political power appropriated judicial or legislative functions 
(e.g., transforming into a mandatory verdict an arbitrator's suggestion in 
case of a clan feud, or transforming into an ordedy procedure the pri- 
mordial lynch justice practiced by a threatened group in cases of 
religious or political malfeasance), the particular solution was almost 
always mediated by a divine revelation (3 judgement of the god). 
Wherever diviners succeeded in appropriating the preparation and in- 
terpretation of the oracles or the divine judgements, they frequently 
achieved a position of enduring dominance. 

Quite in keeping with the' realities of actual life, the guardian of 
the legal order was nowhere necessarily the strongest god: neither 
Varuna in India nor Maat in Egypt, much less Lykos in Attica, Dike, 
Themis or even Apollo. What alone characterized these deities was 
their ethical qualification, which corresponded to the notion that the 
oracle or divine judgment somehow always revealed the truth. It was 
not because he was a deity that the ethical god was the guardian of 
morality and the legal order, for the anthropomorphic gods originally 
had but little to do with ethics, in fact less than human beings. Rather, 
the reason for such a god's ethical pre-eminence was that he bad taken 
this particular type of behavior under his aegis. 

Increased ethical demands were made upon the gods by men, parallel 
with four developments. First, the increasing power of orderly judicial 
determination within large and pacified polities, and hence increasing 
claims upon its quality. Second, the increasing scope of a rational com- 
prehension of an enduring and orderly cosmos. (The cause of this is to 
be sought in the meteorological orientation of economic activity.) Third, 
the increasing regulation of ever new types of human relationships by 
conventional rules, and the increasing dependence of men upon the 
observance of these rules in their interactions with each other. Fourth, 
the growth in social and economic importance of the reliability of the 
given word — whether of friends, vassals, officials, partners in an ex- 
change transaction, debtors, or whomever else; what is basically involved 
in these four developments is the increased importance of an ethical 
attachment of individuals to a cosmos of obligations, making it possible 
to calculate what the conduct of a given person may be. 

Even the gods to whom one turns for protection are henceforth 
regarded as either subject to some moral order or — like the great kings 
— as the creators of such an order, which they made the specific content 
of their divine will. In the first case, a superordinate and impersonal 
power makes its appearance behind the gods, controlling them from 
within and measuring the value of their deeds. Of course, this supra- 



U ] Magic and Religion 431 

divine power may take many different forms. It appears first as "fate." 
Among the Greeks fate (tnoira) is an irrational and, above all, ethically 
neutral predestination of the fundamental aspects of every man's destiny. 
Such predetermination is elastic within certain limits, but flagrant inter- 
ferences with predestined fate may be very dangerous (W^fiopov) even 
to the greatest of the gods. This provides one explanation for the failure of 
so many prayers. This kind of predestinarian view is very congenial to the 
normal psychological attitude of a military caste, which is particularly un- 
receptive to the rationalistic belief in an ethically concerned, yet impartial, 
wise and kindly "providence." In this we glimpse once again the deep 
sociological distance separating a warrior class from every kind of religious 
or purely ethical rationalism. We have already made brief reference to this 
cleavage, and we shall have occasion to observe it in many contexts. 

Quite different is the impersonal power contemplated by bureau- 
cratic or theocratic strata, e.g., the Chinese bureaucracy or the Hindu 
Brahmins. Theirs is the providential power of the harmonious and ra- 
tional order of the world, which may in any given case incline to either 
a cosmic or an ethical and social format, although as a rule both aspects 
are involved. In Confucianism as in Taoism, this order has both a cosmic 
and a characteristic ethical-rational character; it is an impersonal, provi- 
dential force that guarantees the regularity and felicitous order of world 
history. This is the view of a rationalistic bureaucracy. Even more 
strongly ethical is the Hindu rita, the impersonal power of the fixed 
order of religious ceremonial and the fixed order of the cosmos, and 
hence of human activity in general. This is the conception held by the 
Vedic priesthood, which practiced an essentially empirical art of in- 
fluencing the god, more by coercion than by worship. Also to be 
included here is the later Hindu notion of a supradivine and cosmic 
all-unity, superordinate to the gods and alone independent of the sense- 
less change and transitoriness of the entire phenomenal world — a con- 
ception entertained by speculative intellectuals who were indifferent to 
worldly concerns. 

■ Even when the order of nature and of the social conditions which 
are normally considered parallel to it, especially law, are not regarded 
as superordinate to the gods, hut rather as their creations (later we shall 
inquire under what circumstances this occurs), it is naturally postulated 
that god will protect against injury the order he has created. The intel- 
lectual implementation of this postulate has far-reaching consequences 
for religious behavior and for the general attitude toward the god. It 
stimulated the development of a religious ethic, as well as the differen- 
tiation of demands made upon man by god from demands made upon 
man by nature, which latter so often proved to be inadequate. Hitherto, 



4 3 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Cfc. VI 

there had been two primordial methods of influencing supernatural 
powers. One was to subject them to human purposes by means of magic. 
The other was to win them over by making oneself agreeable tc them, 
not by the exercise of any ethical virtue, hut by gratifying their egotistic 
wishes. To these methods was now added obedience to the religious law 
as the distinctive way to win the god's favor. 



5. Magical Origins of Religious Ethics and the 
Rationalization of Taboo 

To be sure, religious ethics do not really begin with this view. On 
the contrary, there was already another and highly influential system of 
religious ethics deriving from purely magical norms of conduct, the 
infraction of which was regarded as a religious abomination. Wherever 
there exists a developed belief in spirits, it is held that extraordinary 
occurrences in life, and sometimes even routine life processes, are gen- 
erated by the entrance into a person of a particular, spirit, e.g., in sick- 
ness, at birth, at puberty, or at menstruation. This spirit may be regarded 
as either sacred or unclean; this is variable and often the product of ac- 
cident, but the practical effect is the same. In either case one must 
avoid irritating the spirit, lest it enter into the officious intruder him- 
self, or by some magical means harm him or any other persons whom 
it might possess. As a result, the individual in question will be shunned 
physically and socially and must avoid contact with others and some- 
times even with his body. In some instances, e.g., Polynesian charismatic 
princes, such a person must be carefully fed lest he magically contami- 
nate his own food. 

Naturally, once this set of notions has developed, various objects or 
persons may he endowed with the quality of taboo by means of magical 
manipulations invoked by persons possessing magical charisma; there- 
upon, contact with the new possessor of taboo will work evil magic, for 
his taboo may be transmitted. This charismatic power to transfer taboo 
underwent considerable systematic development, especially in Indonesia 
and the South Sea area. Numerous economic and social interests stood 
under the sanctions of taboos. Among them were the following: the con- 
servation of forests and wild life (after the pattern of the prohibited 
forests of early medieval kings); the protection of scarce commodities 
against uneconomic consumption during periods of economic difficulty; 
the provision of protection for private property, especially for the prop- 
erty of privileged priests or aristocrats; the safeguarding of common war 



« ] Magic and Religion 4 3 3 

booty against individual plundering (as by Joshua in the case of Achan); 
* and the sexual and personal separation of status groups in the interest of 
maintaining purity of blood or prestige. This first and most general 
instance of the direct harnessing of religion to extra-religious purposes 
also reveals the idiosyncratic autonomy of the religious domain, in the 
somewhat incredible irrationality of its painfully onerous norms, which 
applied even to the beneficiaries of the taboos. 

The rationalization of taboos leads ultimately to a system of norms 
according to which certain actions are permanently construed as religious 
abominations subject to sanctions, and occasionally even entailing the 
death of the malefactor in order to prevent evil sorcery from overtaking 
the entire group because of the transgression of the guilty individual. 
In this manner there arises an ethical system, the ultimate warrant of 
which is taboo. This system comprises dietary restrictions, the proscrip- 
tion of work on taboo or "unlucky" days (the Sabbath was originally 
a taboo day of this type), and certain prohibitions against marriage to 
specified individuals, especially within the circle of one's blood relations. 
The usual process here is that something which has become customary, 
whether on rational grounds or otherwise, e.g., experiences relative to 
illness and other effects of evil sorcery, comes to be regarded as sacred. 

In some fashjon not clearly understood, there developed for certain 
groups a characteristic association between specific norms having the 
quality of taboo and various important in-dwelling spirits inhabiting 
particular objects or animals. Egypt provides the most striking example 
of how the incarnation of spirits as sacred animals may give rise to cultic 
centers of local political associations. Such sacred animals, as well as 
other objects and artifacts, may also become the foci of other social 
groupings, which in any particular case may be more natural or artificial 
in their generation. 



6. Taboo Norms: Totemism and Commensalism 

The most widespread of the social institutions which developed in 
this fashion is that known as totemism^ which is a specific relationship of 
an object, usually a natural object and in the purest manifestations of 
totemism an animal, with a particular -scckljjroup. For the latter, the 
totemic animal is a symbol of brotherhood; and originally the animal 
symbolized the common possession by the group of the spirit of the 
animal, after it had been consumed by the entire group. There are, of 
course, variations in the scope of this fraternalism, just as there are 



4 3 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

variations in the nature of the relationship of the members to the totemic 
object. In the fully developed type of totemism, the biotherliness of the 
group comprises all the fraternal responsibilities of an exogamous kin 
group, while the totemic relation involves a prohibition of slaying and 
consuming the totemic animal, except at the cultic meals of the group. 
These developments culminate in a series of quasi-cultic obligations fol- 
lowing from the common, though not universal, belief that the group 
is descended from the totem animal. 

The controversy concerning the development of these widely dif- 
fused totemic brotherhoods is still unresolved. For us it will suffice to 
say that the totems functionally are the animistic counterparts of the 
gods found in cultic associations which, as previously mentioned, are 
associated with the most diverse social groups, since non-empirical think- 
ing can not do without a functional organization (Zweckverhand') based 
on personal and religiously guaranteed fraternization, even if the or- 
ganization is purely artificial. For this reason the regulation of sexual 
behavior, which the kin groups undertook to effect, especially attracted 
religious sanctions having the nature of taboo, which are best provided 
by totemism. But this system was not limited to the purposes of sexual 
regulation, nor was it confined to the kin group, and it certainly did 
not necessarily arise first in this context. Rather, it is a widely diffused 
method of placing fraternal groupings under magical sanctions, The 
belief in the universality of totemism, and certainly the belief in the 
derivation of virtually all social groups and all religions from totemism, 
constitutes a tremendous exaggeration that has been rejected completely 
by now. Yet totemism has frequently been very influential in producing 1 
a division of labor between the sexes which is guaranteed and enforced 
by magical motivations. Then too, totemism has frequently played a 
very important role in the development and regulation of barter as a 
regular intra-group phenomenon (as contrasted with trade outside the 
limits of the group). 

Taboos, especially the dietary restrictions based on magic, show us a 
new source of the institution of commensal ity which has such far- 
reaching importance. We have already noted one source of this institu- 
tion, namely the household. Another aspect is the restriction of com- 
mensality to comrades having equal magical qualifications, which is a 
consequence of the doctrine of impurity by taboo. These two facets of 
commensality may enter into competition or even conflict. For example, 
when a woman is descended from another kin group than that of her 
husband, there are frequently restrictions upon her sitting at the same 
table with him, and in some cases she is even prohibited from seeing 
him eat. Nor is commensality permitted to the king who is hedged in 



ii ] Magic and Religion 4 3 5 

by taboos, or to members of privileged status groups such as castes, or 
religious communities, both of which are also under taboo. Furthermore, 
highly privileged castes must be shielded from the glances of "unclean" 
strangers during cultic repasts or even everyday meals. Conversely, the 
provision of commensality is frequendy a method of producing religious 
fellowship, which may on occasion lead to political and ethnic alliances. 
Thus, the first great turning point in the history of Christianity was the 
communal feast arranged at Antioch between Peter and the uncir- 
cumcised proselytes, to which Paul, in his polemic against Peter, at- 
tributed such decisive importance. 



7. Caste Taboo, Vocational Caste Ethics, and Capitalism 

On the other hand, norms of taboo may give rise to extraordinarily 
severe impediments to the development of trade and of the market, 
and other types of social intercourse. The absolute impurity of those 
outside one's own religion, as taught by the Shiite sect of Islam, has 
created in its adherents crucial impediments to intercourse with others, 
even in recent times, though recourse has been made to fictions of all 
sorts to ease the situation. The caste taboos of the Hindus restricted 
intercourse among people far more forcefully than the feng shui system 
of spirit beliefs interfered with trade in China." Of course, even in these 
matters there are natural limits to the power of religion in respect to 
the elementary needs of life. Thus, according to the Hindu caste taboo, 
"The hand of the artisan is always clean," Also clean are mines, work- 
shops, and whatever merchandise is available for sale in stores, as well 
as whatever articles of food have been touched by mendicant students 
(ascetic disciples of the Brahmins). The only Hindu caste taboo that 
was apt to be violated in any considerable measure was the taboo on 
.sexual relationships between castes, under the pressure of the wealthy 
classses' interest in polygamy. To some extent, it was permissible to take 
girls of lower castes as concubines. The caste system of labor in India, 
like the feng shui system in China, is being slowly but surely rendered 
illusory wherever railroad transportation develops. 

In theory, these taboo restrictions of caste need not have rendered 
capitalism impossible. Yet it is perfectly obvious that economic ration- 
alization would never have arisen originally where taboo had achieved 
such massive power. Despite all efforts to reduce caste segregation, 
certain psychological resistances based on the caste system remained 
operative, preventing artisans of different crafts from working together 



43 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION^ [Ck. VI 

in the same factory. The caste system tends to perpetuate a specialization 
of labor of the handicraft type, if not by positive prescription, then as a 
consequence of its general spirit and presuppositions. The net effect "of 
the religious sanction of caste upon the spirit of economic activity 
is diametrically opposite to that of rationalism. In the caste system par- 
ticular crafts, insofar as they are the indicia of different castes, are as- 
signed a religious sanction and the character of a sacred vocation. Even 
the most despised of Hindu castes, not excluding that of thieves, regards 
its own enterprise as ordained by particular gods or by a specific volition 
of a god, assigned to its members as their special mission in life; and 
each caste nourishes its feeling of worth by its technically expert execu- 
tion of its assigned vocation. 

But this vocational ethic of a caste system is — at least as far as the 
crafts are concerned — notably traditionalistic, rather than rational. It 
finds its fulfillment and confirmation in the absolutely qualitative per- 
fection of the product fashioned by the craft. Very alien to its mode of 
thinking is the possibility of rationalizing the method of production, 
which is basic to all modern rational technology, or the possibility of 
systematically organizing a commercial enterprise along the lines of a 
rational business economy, which is the foundation of modern capital- 
ism. One must go to the ethics of ascetic Protestantism to find any 
ethical sanction for economic rationalism and for the entrepreneur. 
Caste ethics glorifies the spirit of craftsmanship and enjoins pride, not 
in economic earnings measured by money, nor in the wonders of rational 
technology as applied in the rational use of labor, but rather in the , 
personal virtuosity of the producer as manifested in the beauty and 
worth of the product appropriate to his particular caste. 

Finally, we should note — in anticipation of our general argument 
about these relationships — that what was decisive for the Hindu caste 
system in particular was its connection with a belief in transmigration, 
and especially its connection with the tenet that any possible improve- 
ment in one's chances in subsequent incarnations depended on the 
faithful execution in the present lifetime of the vocation assigned one 
by virtue of his caste status. Any effort to emerge from one's caste, and 
especially to intrude into the sphere of activities appropriate to other and 
higher castes, was expected to result in evil magic and entailed the 
likelihood of unfavorable incarnation hereafter. This explains why, 
according to numerous observations on affairs in India, it is precisely 
the lowest classes, who would naturally be most desirous of improving 
their status in subsequent incarnations, that cling most steadfasdy to 
their caste obligations, never thinking of toppling the caste system 
through social revolutions or reforms ; Among the Hindus, the Biblical 



« ] Magic and Religion 437 

emphasis echoed in Luther's injunction, "Remain steadfast in your voca- 
tion," was elevated into a cardinal religious obligation and was fortified 
by powerful religious sanctions. 



8. Vrom Magical Ethics to Conscience, Sin and Salvation 

Whenever the belief in spirits became rationalized into belief in 
gods, that is, whenever the coercion of spirits gave way to the worship 
of the gods who are served by a cult, the magical ethic of the spirit belief 
underwent a transformation too. This reorientation developed through 
the notion that whoever flouted divinely appointed norms would be 
Overtaken by the ethical displeasure of the god who had these norms 
under his special care. This made possible the assumption that when 
enemies conquered or other calamities befell one's group, the cause was 
'not the weakness of the god but rather his anger against his followers, 
caused by his displeasure at their transgression against the laws under 
his guardianship. Hence, the sins of the group were to blame if some 
unfavorable development overtook it; the god might well be using the 
misfortune to express his desire to chastise and educate his favorite 
people. Thus, the prophets of Israel were always able to point out to 
their people misdeeds in their own generation or in their ancestors', to 
which God had reacted with almost inexhaustible wrath, as evidenced 
by the fact that he permitted his own people to become subject to an- 
other people that did not worship him at all. 

This idea, diffused in all conceivable manifestations wherever the 
god concept has taken on universalistic lines, forms a religious ethic out 
of the magical prescriptions which operate only with the notion of evil 
magic. Henceforth, transgression against the will of god is an ethical sin 
which burdens the conscience, quite apart from its direct results. Evils 
befalling the individual are divinely appointed inflictions and the conse- 
quences of sin, from which the individual hopes to be freed by "piety" 
(behavior acceptable to god) which will bring the individual salvation. 
In the Old Testament, the idea of "salvation," pregnant with conse- 
quences, still has the elementary rational meaning of liberation from 
concrete ills. 

In its early stages, the religious ethic consistently shares another 
characteristic with magic worship in that it is frequently composed of a 
complex of heterogeneous prescriptions and prohibitions derived from 
the most diverse motives and occasions. Within this complex there is, 
from our modern point of view, little differentiation between important 



4 3 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

and unimportant iequirements; any infraction of the ethic constitutes 
sin. Later, a systematization of these ethical concepts may ensue, which 
leads from die rational wish to insure personal external pleasures for 
oneself by performing acts pleasing to the god, to a view of sin as the 
unified power of the anti-divine (diabolical) into whose grasp man may 
fall. Goodness is then envisaged as an integral capacity for an attitude 
of holiness, and for consistent behavior derived from such an attitude. 
During this process of transformation, there also develops a hope for 
salvation as an irrational yearning to be able to he good for its own sake, 
in order to gain the beneficent awareness of such virtuousness. 

An almost infinite series of the most diverse conceptions, crossed 
again and again by purely magical notions, leads to the sublimation of 
piety as the enduring basis of a specific conduct of life, by virtue of the 
continuous motivation it engenders. Of course such a sublimation is 
extremely rare and is attained in its full purity only intermittendy by I 
everyday religion. We are still in the realm of "magic" if sin and piety are j 
viewed as integral powers, envisaged as rather lilae material substances; at \ 
this stage, the nature of the "good" or "evil" of the acting person is con- j 
strued after the fashion of a poison, a healing antidote, or a bodily tempera- i 
ture. Thus in India tapas, the power of the sacred which a man achieved 
by asceticism and contained within his body, originally denoted the heat 
engendered in fowls during their mating season, in the creator of the 
world at the cosmogony, and in the magician during his sacred hysteria 
induced by mortifications and leading to supernatural powers. 

It is a long way from here to the notion that the person who acts 
with goodness has received into himself a special soul of divine proveni- 
ence, and to the various forms of inward possession of the dwine to be 
described later. So too, it is a far cry from the conception of sin as a 
poison in the body of the malefactor, which must be treated by magical 
means, to the conception of an evil demon which enters into possession 
of him, and on to the culminating conception of the diabolical power 
of the radical evil, with which the evildoer must struggle lest he succumb 
to its dangerous power. 

By no means every ethic traversed the entire length of the road 
culminating in these conceptions. Thus, the ethics of Confucianism 
lack the concept pf radical evil, and in general lack the concept of any 
integral diabolical power of sin. Nor was this notion contained in the 
ethics of Greece or Rome. In both- those cases, there was lacking not 
only an independently organized priesthood, but also prophecy, that 
historical phenomenon which normally produced a centralization of 
ethics under the aegis of religious salvation. In India, prophecy was not 



ii ] - Magic and Religion 4 3 9 

absent, but as will be expounded later, it had a very special character 
and a very highly sublimated ethic of salvation. 

Prophets and priests are the twin bearers of the systematization and 
rationalization of religious ethics. But there is a third significant factor 
of importance in determining the evolution of religious ethics: the laity, 
whom prophets and priests seek to influence in an ethical direction. We 
must now devote a brief examination to the interaction of these three 
factors. 



NOTES 

i. The first part of this section belongs to Weber's first section, if indeed 
the German paragraph division is that of the original manuscript. The section is 
here combined with, the German §a, which has only two pages, and with 
§3 (seven pages). 

2. Weber contrasts the conventional German term for attending "services," 
"Gottesdienst" with the term "Go tteszwang." 

3. Cf. Weber, The Religion of India, 137?. 

4. On the feng shui, see Weber, The Religion of China, 199, 214, 217, 
276, 297. 



Ill 

The Prophet 



Prophet versus Priest and Magician 



What is a prophet, from the perspective of sociology? We shall 
forego here any consideration of the general question regarding the 
"bringer of salvation" (Heilhringer) as raised by Breysig. 1 Not every 
anthropomorphic god is a deified bringer of salvation, whether external 
or internal salvation. And certainly not every provider of salvation be- 
came a god or even a savior, although such phenomena were wide- 
spread. 

We shall understand "prophet" to mean a purely individual bearer 
of charisma, who by virtue of his mission proclaims a religious doctrine 
or divine commandment. No radical distinction will be drawn between 
a "renewer of religion" who preaches an older revelation, actual or 
supposititious, and a "founder of religion" who claims to bring com- 



44° RELIGIOUS GROtfPS (SOCIOLOGY OF RELIGION) [ Cfe. VI 

pletely new deliverances. The two types merge into one another. In 
any case, the formation of a new religious community need not be the 
result of doctrinal preaching by prophets, since it may be produced by 
the activities of non-prophetic reformers. Nor shall we be concerned in 
this context with the question whether the followers of a prophet are 
more attracted to his person, as in the cases of Zoroaster, Jesus, and 
-Muhammad, or to his doctrine, as in the cases of Buddha -and the 
prophets of Israel. 

For our purposes here, the personal call is the decisive element 
distinguishing the prophet from the priest. The latter lays claim to 
authority by virtue of his service in a sacred tradition, while the 
prophet's claim is based on personal revelation and charisma. It is no 
accident that almost no prophets have emerged from the priesdy class. 
As a rule, the Indian teachers of salvation were not Brahmins, nor were 
the Israelite prophets priests. Zoroaster's case is exceptional in that there 
exists a possibility that he may have descended from the hieratic nobility. 
The priest, in clear contrast, dispenses salvation by virtue of his office. 
Even in cases in which personal charisma may be involved, it is the 
hierarchical jffice that confers legitimate authority upon die priest as a 
member of an organized enterprise of salvation- 

But the prophet, like the magician, exerts his power simply by virtue 
of his personal gifts. Unlike the magician, however, the prophet claims 
definite revelations, and the core of his mission is doctrine or com- 
mandment, not magic. Outwardly, at least, the distinction is fluid, for 
the magician is frequently a knowledgeable expert in divination, and 
sometimes in this alone. At this stage, revelation functions continuously 
as oracle or dream interpretation. Without prior consultation with the 
magician, no innovations in social relations could be adopted in primitive 
times. To this day, in certain parts of Australia, it is the dream revela- 
tions of magicians that are set before the councils of clan heads for 
adoption, 1 and it is a mark of secularization that this practice is receding. 

On the other hand, it was only under very unusual circumstances 
that a prophet succeeded in establishing his authority without charis- 
matic authentication, which in practice meant' magic. At least the 
bearers of new doctrine practically always needed such validation. It must 
not be forgotten for an instant that the entire basis of Jesus' own legiti- 
mation, as well as his claim that he and only he knew the Father and 
that the way to God led through faith in him alone, was the magical 
charisma he felt within himself. It was doubdess this consciousness of 
power, more than anything else, that enabled him to traverse the road 
of the prophets. During the apostolic period of early Christianity and 
thereafter the figure of the wandering prophet was a constant phenome- 



Hi ] The Prophet 441 

non. There was always required of such prophets a proof of their 
possession of particular gifts of the spirit, of special magical or ecstatic 
abilities. 

Prophets very often practiced divination as well as magical healing 
and counseling. This was true, for example, of the prophets (wal»t, 
nebiimy so frequently mentioned in the Old Testament, especially 
in the prophetic books and Chronicles. But what distinguishes the 
prophet, in the sense that we are employing the term, from the types 
just described is an economic factor, i.e., that his -prophecy is «»- 
remunerated. Thus, Amos indignantly rejected the appellation of nabi. 
This criterion of gratuitous service also distinguishes the prophet from 
the priest. The typical prophet propagates ideas for their own sake and 
not for fees, at least not in any obvious or regulated form. The provisions 
enjoining the non-remunerative character of prophetic propaganda have 
taken various forms. Thus developed the carefully cultivated postulate 
that the apostle, prophet, or teacher of ancient Christianity must not 
"trade on" his religious proclamations. Also, limitations were set upon 
the length of the time he could enjoy the hospitality of his friends. 
The Christian prophet was enjoined to live by the labor of his own 
hands or, as among the Buddhists, only from alms which he had not 
specifically solicited. These injunctions were repeatedly emphasized in 
the Pauline epistles, and in another form in the Buddhist monastic 
regulations. The dictum "whosoever will not work, shall not eat" applied 
to missionaries; however, the prophesying free of charge is, of course, one 
of the chief reasons for the success of prophetic propaganda itself. 

The period of the older Israelite prophecy at about the time of 
Elijah was an epoch of strong prophetic propaganda throughout the 
Near East.and Greece. Perhaps prophecy in all its forms arose, especially 
in the Near East, in connection with the reconstitution of the great 
world empires in Asia, and the resumption and intensification of inter- 
national commerce after a long interruption. At that rime Greece was 
exposed to the invasion of the Thracian cult of Dionysos, as well as 
to the most diverse types of prophecies. In addition to the semiprophetic 
social reformers, certain purely religious movements now broke into the 
simple magical and cultic lore of the Homeric priests. Emotional cults, 
emotional prophecy based on "speaking with tongues," and highly 
valued intoxicating ecstasy interrupted the unfolding of theological ra- 
tionalism (Hesiod), the beginnings of cosmogonic and philosophic specu- 
lation, of philosophical mystery doctrines and salvation religions. The 
growth of these emotional cults paralleled both overseas colonization and, 
above all, the formation of cities and the transformation of the polls which 
resulted from the development of a citizen army. 



4 4 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch, VI 

It is not necessary to detail here these developments of the eighth 
and seventh centuries, so brilliantly analyzed by Rohde, s some of which 
reached into the sixth and even the fifth century. They were contempo- 
rary with Jewish, Persian, and Hindu prophetic movements, and prob- 
ably also with the achievements of Chinese ethics in the pre-Confucian 
period, although we have only scant knowledge of the latter. These 
Greek "prophets" differed widely among themselves in regard to the 
economic criterion of professionalism, and in regard to the possession 
of a "doctrine." The Greeks also made a distinction between professional 
teaching and unremunerated propagandizing of ideas, as we see from 
the example of Socrates. In Greece, furthermore, there existed a clear 
differentiation between the only real congregational type of religion, 
namely Orphism with its doctrine of salvation, and every other type of 
prophecy and technique of salvation, especially those of the mysteries. 
The basis of this distinction was the presence in Orphism of a genuine 
doctrine of salvation. 



2. Prophet and Lawgiver 

Our primary task is to differentiate the various types of prophets 
from the sundry purveyors of salvation, religious or otherwise. Even in 
historical times the transition from the prophet to the law-giver is fluid, 
if one understands the latter to mean a personage who in a concrete case 
has been assigned the responsibility of codifying a law systematically or 
of reconstituting it, as was the case notably with the Greek atsymnetai 
, (e,g., Solon, Charondas, etc.). In no case did such a lawgiver or his 
labor fail to receive divine approval, if only subsequendy. 

A lawgiver is quite different from the Italian -podesta, who is sum- 
moned from outside the group, not for the purpose of creating a new 
social order, but to provide a detached, impartial arbitrator, especially 
when families of the same social rank feud with one another. On the 
other hand, lawgivers were generally, though not always, called to their 
office when social tensions were in evidence. This was apt to occur with 
special frequency in the one situation which commonly provided the 
earliest stimulus to a reform policy: the economic differentiation of the 
warrior class as a result of growing monetary wealth of one part and the 
debt enslavement of another; an additional factor was the dissatisfaction 
arising from the unrealized political aspirations of a rising commercial 
class which, having acquired wealth through economic activity, was 
now challenging the old warrior nobility. It was the function of the 



Hi ] The Prophet 443 

aisymnetes "to resolve the conflicts between status groups and to produce 
a new sacred law of eternal validity, for which he had to secure divine 
approbation. 

It is very likely that Moses was a historical figure, in which case he 
would be classified functionally as an aisymnetes. For the prescriptions 
of the oldest sacred legislation of the Hebrews presuppose a money 
economy and hence sharp conflicts of interests, whether impending or 
already existing, within the confederacy. It was Moses' great achieve- 
ment to find a compromise solution of, or prophylactic for, these conflicts 
(e.g., the seisachtheia of the Year of Release)* and to organize the Israelite 
confederacy with an integral national god. In essence, his work stands 
midway between the functioning of an ancient aisymnetes and that of 
Muhammad. The reception of the law formulated by Moses stimulated 
a period of expansion of the newly unified people in much the same 
way that the compromise among status groups stimulated expansion in 
so many other cases, particularly in Athens and Home. The scriptural 
dictum that "after Moses there arose not in Israel any prophet like "unto 
him" means that the Jews never had another aisymnetes. 

Not only were none of the prophets aisymnetai in this sense, but in 
general what normally passes for prophecy does not belong to this cate- 
gory. To be sure, even the later prophets of Israel were concerned with 
social reform. They hurled their "woe be unto you" against those who 
oppressed and enslaved the poor, those who joined field to field, and 
those who deflected justice by bribes. These were the typical actions 
leading to class stratification everywhere in the ancient world, and were 
everywhere intensified by the development of the city-state (jpolis~). 
Jerusalem too had been organized into a city-state by the time of these 
later prophets. A distinctive concern with social reform is characteristic 
of Israelite prophets. This concern is all the more notable because such 
a trait is lacking in Hindu prophecy of the same period, although the 
conditions in India at the time of the Buddha have been described as 
relatively similar to those in Greece during the sixth century. 

An explanation for Hebrew prophecy's concern for social reform is 
to be sought in religious grounds, which we shall set forth subsequently. 
But it must not be forgotten that in the motivation of the Israelite 
prophets these social reforms were only means to an end. Their primary 
concern was with foreign politics, chiefly because it constituted the 
theater of their god's activity. The Israelite prophets were concerned 
with social and other types of injustice as a violation of the Mosaic code 
primarily in order to explain god's wrath, and not in order to institute a 
program of social reform. It is noteworthy that the sole theoretician of 
social reform, Ezekiel, was a priestly theorist who can scarcely be cate- 



4 4 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

gorized as a prophet at all. Finally, Jesus was not at all interested 
in social reform as such. 

Zoroaster shared with his cattle-raising people a hatred of the 
despoiling nomads, but the heart of his message was essentially reli- 
gious. His central concern was his struggle against the magical cult of 
ecstasy and for his own divine mission, which of course had incidental 
economic consequences. A similar primary focus upon religion appeared 
very clearly in the case of Muhammad, whose program of social reform, 
which Umar carried through consistently, was oriented almost entirely 
to the unification of the faithful for the sake of fighting the infidels and 
of maintaining the largest possible number of warriors. 

It is characteristic of the prophets that they do not receive their 
mission from any human agency, but seize it, as it were. To be sure, 
usurpation also characterized the assumption of power by tyrants in the 
Greek yolis. These Greek tyrants remind one of the legal aisymnetai in 
their general functioning, and they frequently pursued their own char- 
acteristic religious policies, e.g., supporting the emotional cult of 
Dionysos, which was popular with the masses rather than with the 
nobility. But the aforementioned assumption of power by the prophets 
came about as a consequence of divine revelation, essentially for religious 
purposes. Furthermore, their characteristic religious message and their 
struggle against ecstatic cults tended to move in an opposite direction 
from that taken by the typical religious policy of the Greek tyrants. The 
religion of Muhammad, which is fundamentally political in its orienta- 
tion, and his position in Medina, which was in between that of an 
Italian -podesta and that of Calvin at Geneva, grew primarily out of his 
purely prophetic mission. A merchant, he was first a leader of pietistic 
bourgeois conventicles in Mecca, until he realized more and more clearly 
that the ideal external basis for his missionizing would be provided by the 
organization of the interests of the warrior clans in the acquisition of booty. 



3 . Prophet and Teacher of Ethics 

On the other hand, there are various transitional phases linking the 
prophet to the teacher of ethics, especially the teacher of social ethics. 
Such a teacher, full of new or recovered ancient wisdom, gathers dis- 
ciples about him, counsels private persons, and advises princes in public 
affairs and possibly tries to make them establish a new ethical order. The 
bond between the teacher of religious or philosophical wisdom and his 
disciple is uncommonly strong and regulated in an authoritarian fashion, 
particularly in the sacred laws of Asia. Everywhere this bond is one of 
the firmest relationships of loyalty. Generally, training in jnagic and 



Hi ] - The Prophet 445 

heroism is so regulated that the novice is assigned to a particularly 
experienced master or is permitted to seek out a master, as 4& young 
"fox" can choose the senior member QLeibhursche) in German frater- 
nities. All the Greek poetry of pederasty derives from such a relationship 
of respect, and similar phenomena are to he found among Buddhists and 
Confucianists, indeed in all monastic education. 

The most complete expression of this disciple-master relationship 
is to be found in the position of the guru in Hindu sacred law. Every 
young man belonging to polite society was unconditionally required to 
devote himself for many years to the instruction and direction of life 
provided by such a Brabminic teacher. The obligation of obedience to 
the gwrw, who had absolute power over his charges, a relationship com- 
parable to that of the occidental famulus to his magister, took precedence 
over loyalty to family, just as the position of the court Brahmin (_puro- 
hita~) was officially regulated so as to raise his position far above that of 
the most powerful father confessor in the Occident. Yet the guru is, 
after all, only a teacher who transmits acquired, not only revealed, 
knowledge, and this by virtue of a commission and not on his own 
authority. 

The philosophical ethicist and the social reformer are not prophets 
in our sense of the word, no matter how closely they may seem to re- 
semble prophets. Actually, the oldest Greek sages, who like Empedocles 
and Pythagoras are wreathed in legend, stand closest to the prophets. 
Some of them left behind groups with a distinctive doctrine of salvation 
and conduct of life, and they laid some claim to the status of savior. 
Such intellectual teachers of salvation have parallels in India, but the 
Greek teachers fell far short of the Hindu teachers in consistently focus- 
ing both life and doctrine on salvation. 

Even less can the founders and heads of the actual "schools of 
philosophy" be regarded as prophets in our sense, no matter how closely 
they may approach this category in some respects. From Confucius, in 
whose temple even the emperor makes his obeisance, graded transitions 
lead to Plato. But both of them were simply academic teaching philoso- 
phers, who differed chiefly in that Confucius was centrally concerned 
with influencing princes in the direction of particular social reforms, and 
Plato only occasionally. 

What primarily differentiates such figures from the prophets is their 
lack of that vital emotional preaching which is distinctive of prophecy, 
regardless of whether this is disseminated by the spoken word, the 
pamphlet, or any other type of literary composition' (e.g., the suras of 
Muhammad). The enterprise of the prophet is closer to that of the 
popular leader Cdemagogos) or political publicist than to that of the 
teacher. On the other hand, the activity of a Socrates, who also felt 



4 4 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch, VI 

himself opposed to the professional teaching enterprise of the Sophists, 
must be distinguished conceptually from the activities of a prophet by 
the absence of a directly revealed religious mission. Socrates' "genius" 
Cdatmonion') reacted only to concrete situations, and then only to dis- 
suade and admonish. For Socrates, this was the outer limit of his ethical 
and strongly utilitarian rationalism, which occupied for him the position 
that magical divination assumed for Confucius. For this reason, Socrates' 
daimonton cannot be compared at all to the conscience of a genuine reli- 
gious ethic; much less can it be regarded as the instrument of prophecy. 

Such a divergence from the characteristic traits of the Hebrew 
prophets' holds true of all philosophers and their schools as they were 
known in China, India, ancient Hellas, and in the medieval period 
among Jews, Arabs, and Christians alike. All such philosophical schools 
were rather similar from .a sociological point of view. In their mode .of 
life, they may be nearer to the mystagogic-ritual prophecy of salvation, 
as in the case of the Pythagoreans, or to the exemplary prophecy of sal- 
vation (in the sense soon to be explained), as in the case of the Cynics, 
who protested against the sacramental grace of the mysteries as well as 
against wordly civilization, and who in this regard show certain affinities 
to Hindu and Oriental ascetic sects. But the prophet, in our special 
sense, is never to be found where the proclamation of a religious truth of 
salvation through personal revelation is lacking. In our view, this qualifi- 
cation must be regarded as the decisive hallmark of prophecy. 

Finally, the Hindu reformers of religion such as Shankara and 
Ramanuja and their Occidental counterparts like Luther, Zwingli, Cal- 
vin, and Wesley are to be distinguished from the category of prophets 
by virtue of the fact that they do not claim to be offering a substantively 
new revelation or to be speaking in the name of a special divine injunc- 
tion. This is what characterized the founder of the Mormon church, who 
resembled, even in matters of detail, Muhammad; above all, it charac- 
terized the Jewish prophets. The prophetic type is also manifest in 
Montanus and Novatianus, and in such figures as Mani and Marcion 
whose message had a more rational doctrinal content than did that of 
George Fox, a prophet type with emotional tendencies." 



4. Mystagogue and Teacher 

When we have separated out from the category of prophet all the 
aforementioned types, which sometimes abut very closely, various others 
still remain. The first is that of the mystagogue. He performs sacra- 



tit ] The Prophet 4 4 7 

ments, i.e., magical actions that contain the boons of salvation. Through- 
out the entire world there have been saviors of this type whose differeltce 
from the average magician is only one of degree, the extent of which is 
determined by the formation of a special congregation around him. Very 
frequendy dynasties of mystagogues developed on the basis of a sacra- 
mental charisma which was regarded as hereditary. These dynasties 
maintained their prestige for centuries, investing their disciples with 
great authority and thus developing a kind of hierarchical position. This 
was especially true in India, where the tide of guru was also used to 
designate distributors of salvation and their plenipotentiaries. It was 
likewise the case in China, where the hierarch of the Taoists and the 
heads of certain secret sects played just such hereditary roles. Finally, 
one type of exemplary prophet to be discussed presendy was also gen- 
erally transformed into a mystagogue in the second generation. 

The mystagogues were also very widely distributed throughout the 
Near East, and they entered Greece in the prophetic age to which 
reference was made earlier. Yet the far more ancient noble families who 
were the hereditary incumbents of the Eleusinian mysteries also repre- 
sented at least another marginal manifestation of the simple hereditary 
priesdy families. Ethical doctrine was lacking in the mystagogue, who 
distributed magical salvation, or at least doctrine played only a very 
subordinate role in his work. Instead, his primary gift was hereditarily 
transmitted magical art. Moreover, he normally made a living from his 
art, for which there' was a great demand. Consequendy we must exclude 
him too from the conception of prophet, even though he sometimes 
revealed new ways of salvation. 



5. Ethical and Exemplary Prophecy 

"Thus, there remain only two kinds of prophets in our sense, one 
represented most clearly by the Buddha, die other with especial clarity 
by Zoroaster and Muhammad. The prophet may be primarily, as in the 
last cases, an instrument for the proclamation of a god and his will, be 
this a concrete command or an abstract norm. Preaching as one who has 
received a commission from god, he demands obedience as an ethical duty. 
This type we shall term the "ethical prophet." On the other hand, the 
prophet may be an exemplary man who, by his personal example, 
demonstrates to others the way to religious salvation, as in .the case of the 
Buddha. The preaching of this type of prophet says nothing about a 
divine mission or an ethical duty of obedience, but rather directs itself 
to the self-interest of those who crave salvation, recommending to them 



4 4 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

the same path as he himself traversed. Our designation for this second 
type is that of the "exemplary prophet." 

The exemplary type is particularly characteristic of prophecy in 
India, although there have been a few manifestations of it in China 
(e.g., Lao Tzu) and the Near East. On the other hand, the ethical type 
is confined to the Near East, regardless of racial differences there. For 
neither the Vedas nor the classical books of the Chinese — the oldest 
portions of which in both cases consist of songs of praise and thanks- 
giving by sacred singers, and of magical rites and ceremonies — makes 
it appear at all probable that prophecy of the ethical type, such as de- 
veloped in the Near East or Iran, could ever have arisen in India or 
China. The decisive reason for this is the absence of a personal, tran- 
scendental, and ethical god. In Indif* this concept was found only in a 
sacramental and magical form, and then only in the later and popular 
faiths. But in the religions of those social strata within which the decisive 
prophetic conceptions of Mahavira and Buddha were developed, ethical 
prophecy appeared only intermittently and was constantly subjected to 
reinterpretations in the direction of pantheism. In China the notion 
of ethical prophecy was altogether lacking in the ethics of the stratum 
rfiat exercised the greatest influence in the society. To what degree this 
may presumably be associated with the intellectual distinctiveness of 
such strata, which was of course determined by various social factors, 
will be discussed later. 

As far as purely religious factors are concerned, it was decisive for 
both India and China that the conception of a rationally regulated world 
had its point of origin in the ceremonial order of sacrifices, on the un- 
alterable sequence of which everything depended: especially the indis- 
pensable regularity of meteorological processes; in animistic terms, what 
was involved here was the normal activity or inactivity of the spirits 
and demons. According to both classical and heterodox Chinese views, 
these processes were held to be insured by the ethically proper conduct 
of government that followed the correct path of virtue, the Tao; with- 
out this everything would fail, even according to Vedic doctrine. Thus, 
in India and China, Rita and Tao respectively represented similar super- 
divine, impersonal forces. 

On the other hand, the personal, transcendental and ethical god is 
a Near-Eastern concept. It corresponds so closely to that of an all- 
powerful mundane king with his rational bureaucratic regime that a 
causal connection can scarcely be denied. Throughout the world the 
magician is in the first instance a rainmaker, for the harvest depends on 
timely and sufficient rain, though not in excessive quantity. Until the 
present time the pontifical Chinese emperor has remained a rainmaker, 



Hi ] The Prophet 4 4 9 

for in northern China, at least, the uncertainty of the weather renders 
dubious the operation of irrigation procedures, no matter how extensive 
they are. Of greater significance was the construction of defense walls, 
and internal canals, which became the real source of the imperial bu- 
reaucracy. The emperor sought to avert meteorological disturbances 
through sacrifices, public atonement, and various virtuous practices, e.g., 
the termination of abuses in the administration, or the organization of a 
raid on unpunished malefactors. For it was always assumed that the 
reason for the excitation of the spirits and the disturbances of the cosmic 
order had to be sought either in the personal derelictions of the monarch 
or in some manifestation of social disorganization. Again, rain was one 
of the rewards promised by Yahweh to his devotees, who were at that 
time primarily agriculturalists, as is clearly apparent in the older portions 
of the tradition. God promised neither too scanty rain nor yet excessive 
precipitation or deluge. 

But throughout Mesopotamia and Arabia it was not rain that was 
the creator of the harvest, but artificial irrigation alone. In Mesopotamia, 
irrigation was the sole source of the absolute power of the monarch, who 
derived his income by compelling his conquered subjects to build canals 
and cities adjoining them, just as the regulation of the -Nile was the 
source of the Egyptian monarch's strength. In the desert and semiarid 
regions of the Near East this control of irrigation waters was probably 
one source of the conception of a god who had created the earth and 
man out of nothing and not procreated them, as was believed elsewhere. 
A riparian economy of this kind actually did produce a harvest out of 
nothing, from the desert sands. The monarch even created law by legis- 
lation and rational codification, a development the world experienced 
for the first time in Mesopotamia. It seems quite reasonable, therefore, 
that as a result of such experiences the ordering of the world should be 
conceived as the law of a freely acting, transcendental and personal god. 

Another, and negative, factor accounting for the development in the 
■ Near East of a world order that reflected the operation of a personal god 
was the relative absence of those distinctive strata who were the bearers 
of the Hindu and Chinese ethics, and who created the "godless" religious 
ethics found in those countries. But even in Egypt, where originally 
Pharaoh himself was a god, the attempt of Ikhnaton to produce an astral 
monotheism foundered because of the power of the priesthood, which 
had by then systematized popular animism and become invincible. In 
Mesopotamia the development of monotheism and demagogic prophecy 
was opposed by the ancient pantheon, which was politically organized 
and had been systematized by the priests; such a development was, 
furthermore, limited by the firm order of the state. 



4 5° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [ Ck. VI 

The kingdom of the Pharaohs and of Mesopotamia made an even 
more powerful impression upon the Iraelites than the great Persian 
monarch, the basileus hat exochen, made upon the Greeks (the strong 
impact of Cyrus upon the Greeks is mirrored, for instance, in the fact that 
a pedagogical treatise [by Xenophon] was formulated as a Cyropaedta, 
despite the defeat of this monarch). The Israelites had gained their free- 
dom from the "house of bondage" of the earthly Pharaoh only because 
a divine king had come to their assistance. Indeed, their subsequent 
establishment of a worldly monarchy was expressly declared to be a defec- 
tion from Yahweh, die real ruler of the people. Hebrew prophecy was 
completely oriented to a relationship with the great political powers of 
the time, the Great Kings, who as the rods of God's wrath first destroy 
Israel and then, as a consequence of divine intervention, permit Israelites 
to return from the Exile to their own land. In the case of Zoroaster too it 
seems that the range of his vision was oriented to the views of the civilized 
lands of the West. 

Thus, the distinctive character of the earliest prophecy, in both its 
dualistic and monotheistic forms, seems to have been determined de- 
cisively — aside from the operation of certain other concrete historical 
influences — by the pressure of relatively contiguous great centers of 
highly controlled social organization upon less developed neighboring 
peoples. The latter tended to see in their own continuous peril from the 
pitiless bellicosity of terrible nations the anger and grace of a heavenly 
king. 



6. The Nature of Prophetic Revelation: The World As 
a Meaningful Totality 

Regardless of whether a particular religious prophet is predominandy 
of the ethical or predominandy of the exemplary type, prophetic revela- 
tion involves for both the prophet himself and for his followers — and 
this is the element common to both varieties — a unified view of the 
world derived from a consciously integrated meaningful attitude toward 
life. To the prophet, both the life of man and the world, both social and 
cosmic events, have a certain systematic and coherent meaning, to 
which man's conduct must he oriented if it is to bring salvation, and 
after which it must be patterned in*an integrally meaningful manner. 
Now the structure of this meaning may take varied forms, and it may 
weld together into a unity motives that are Ibgically quite heterogeneous. 
The whole conception is dominated, not by logical consistency, but by 
practical valuations. Yet it always denotes, regardless of any variations 



Hi] - The Prophet 451 

in scope and in measure of success, an effort to systematize all the 
manifestations of life; that is, to organize practical behavior into a direc- 
tion of life, regardless of the form it may assume in any individual case. 
Moreover, this meaning always contains the important religious concep- 
tion of the world as a cosmos which is challenged to produce somehow a 
"meaningful," ordered totality, the particular manifestations of which are 
to be measured and evaluated according to this postulate. 

The conflict between empirical reality and this conception of the 
world as a meaningful totality, which is based on the religious postulate, 
produces the strongest tensions in man's inner life as well as in hit 
external relationship to the world. To be sure, this problem is by no 
means dealt with by prophecy alone. Both priestly wisdom and secular 
philosophy, the intellectualist as well as the popular varieties, are some- 
how concerned with it. The ultimate question of all metaphysics has 
always been something like this: if the world' as a whole and life in 
particular were to have a meaning, what might it be, and how would 
the world have to look in order to correspond to it? The religious prob- 
lem of prophets and priests is the womb from which non-sacerdotal 
philosophy emanated, where it developed at all. Subsequendy, priests 
and prophets had to cope with secular philosophy as a very important 
component of religious evolution. Hence, we must now examine more 
closely the mutual relationships of priests, prophets, and non-priests. 



NOTES 

1. See Kurt Breysig, Die Entstehung des GotUsgedankens und der He&- 
brmger (Berlin: Bondi, 1905)- Breysig, who early used the term "sociology of 
religion," dealt with the Jewish prophets and Jesus in Alterihum tmd Mittelalter 
als Vorstufen der Neuzeit. vol. II of K-tdtwgeschichte der Neuzeit (Berlin: Bondi, 
1 901), chs. I and II. Breysig's ambitious effort can serve as a contemporary com- 
parison to Weber's work; by its very oescriptiveness and diffuseness it demonstratec 
die analytical strength of Weber's approach. 

2. On the «€fc(tm, see Weber, Ancient Judaism, IV: 2. 

3. See Envin Rohde, Psyche. The Cult of Souls and Belief in Immortality 
Among the Greeks (London: Paul, Trench, Trubner, 1925). 

4. "SeisachtHeia of the Year of Release": i.e., the debt release of the sabbatical 
year enjoined by Moses; cf . Dent 1 5 : 1-3. The Greek term seisachiheia, "shaking 
off" (a burden), designated the debt cancellation 'of the Solonic reform in sixth 
century Athens. 

5. Montanus and Novattanus were Christian sect founders of the earry 
church (late 2nd, early 3d cent.), Mani (ajd. 215-273) the Babylonian rounder 
of Manichaeism. The fourth figure is given as Manus In the German text, hut the 
context suggests a misreading of Marcion, the 2nd-century Bible critic and sect 
founder whose movement later merged with Manichaeism. 



4 5 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ck. VI 

iv 
The Congregation Between Prophet and Priest 



i . The Congregation: The Permanent Association of 
Laymen 

If his prophecy is successful, the prophet succeeds in winning perma- 
nent helpers. These may he Soifalen (as Bartholomae translates the term 
of the Gathas), 1 disciples (Old Testament and Hindu), comrades 
(Hindu and Islamic) or followers (Isaiah and the New Testament). 
In all cases they are personal devotees of the prophet, in contrast to 
priests and soothsayers who are organized into guilds or office hierarchies. 
We shall devote additional consideration to this relationship in our 
analysis of the forms of domination [below, ch. XV]. Moreover, in addi- 
tion to these permanent helpers, who are active co-workers with the 
prophet in his mission and who generally also possess some special charis- 
matic qualifications, there is a circle of followers comprising those who 
support him with lodging, money, and services and who expect to obtain 
their salvation through his mission. These may engage in intermittent 
social action (Gelegenheitshandeln) or associate themselves continuously 
in a congregation (_Gemeinde). 

A congregation in the specifically religious sense (for this term is 
[in German] also employed to denote the neighborhood that has been 
associated for economic or for fiscal or other political purposes) does not 
arise solely in connection with prophecy in the particular sense used 
here. Nor does it arise in connection with . every type of prophecy. 
Primarily, a religious community arises in connection with a prophetic 
movement as a result of routinization (yeralltaglichung), i,e., as a result 
of the process whereby either the prophet himself or his disciples secure 
the permanence of his preaching and the congregation's distribution of 
grace, hence insuring also the economic existence of the enterprise and 
those who man it, and thereby monopolizing as well the privileges 
reserved for those charged with religious functions. 

It follows from this primacy of routinization in the formation of 
religious congregations that they may also be formed around mystagogues 
and priests of nonprophetic religions. For the mystagogue, indeed, the 
presence of a congregation is a normal phenomenon. The magician, in 
contrast, exercises his craft independently or, if a member of a guild, 



iv ] The Congregation Between Prophet and Priest 4 5 3 



IV 



serves a particular neighborhood or political group, not a specific reli- 
gious congregation. The congregations of the mystagogues, like those of 
the Eleusinian practitioners of mysteries, generally remained an open 
group with changing membership. Whoever was desirous of salvation 
would enter into a relationship, generally temporary, with the mysta- 
gogue and his assistants. However, the Eleusinian mysteries were some- 
thing like a regional community, independent of particular localities. 

The situation was quite different in the case of exemplary prophets 
who unconditionally demonstrated the way of salvation by their personal 
example, as did, for example, the mendicant monks of Mahavira and 
the Buddha, who belonged to a narrower exemplary community. Within 
this narrower community the disciples, who might still have been per- 
sonally associated with the prophet, would exert particular authority. 
Outside of the exemplary community, however, there were pious devo- 
tees (e.g., the U-pasakas of India) who did not go the whole way of salva- 
tion for themselves, but sought to achieve a relative optimum of salvation 
by demonstrating their devotion to the exemplary saint. These devotees 
either lacked altogether any fixed status in the religious community, as 
was originally the case with the Buddhist Upasakas, or they were organ- 
ized into some special group with fixed rules and obligations. This regu- 
larly happened when priests, priest-like counselors, or mystagogues like 
the Buddhist bonzes were separated out from the exemplary community 
and entrusted with cuhic responsibilities (which did not exist in the 
earliest stages of Buddhism). But the prevailing Buddhist practice was 
the voluntary temporary association, which the majority of mystagogues 
and exemplary prophets shared with the temple priesthoods of particular 
deiries from the organized pantheon. The economic existence of these 
congregations was secured by endowments and maintained by sacrificial 
offerings and other gifts provided by persons with religious needs. 

At this stage there was still no trace of a permanent congregation 
of laymen. Our present conceptions of membership in a religious de- 
nomination are not applicable to the situation of that period. As yet the 
individual was a devotee of a god, approximately in the sense that an 
Italian is a devotee of a particular saint. Yet there is an almost ineradi- 
cable vulgar error that the majority or even all of the Chinese are to be 
regarded as Buddhists in religion. The source of this misconception is 
the fact that many Chinese, brought up in the Confucian ethic (which 
alone enjoys official approbation), consult Taoist divining priests before 
building a house and mourn deceased relatives according to the Con- 
fucian rule while also arranging for Buddhist masses to be performed in 
their memory. Apart from those who continuously participate in the cult 
of a god and possibly a narrow circle having a permanent interest in it, 



4 5 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

all that we have at this stage are drifting laymen, or if one is permitted 
to use metaphorically a modern political designation, "floating voters." - 

Naturally, this condition does not satisfy the interests of those who 
man the cult, if only because of purely economic considerations. Conse- 
quendy, in this kind of situation they endeavor to create a congregation 
whereby the personal following of the cult will assume the form of a 
permanent organization and become a community with fixed lights and 
duties. Such a transformation of a personal following into a permanent 
congregation is the normal process by which the doctrine of the prophets 
enters into everyday life, as the function of a permanent institution. The 
disciples or apostles of the prophets thereupon become mystagogues, ■ 
teachers, priests or pastors (or a combination of them all), serving an 
association dedicated to exclusively religious purposes, namely the con- 
gregation of laymen. 

But the same result can be reached from other starting points. We 
have seen that the priests, whose function evolved from that of magicians 
to that of generic priesthood, were either scions of landed priesdy 
families, domestic and court priests of landed magnates and princes, or 
trained .priests of a sacrificial cult who organized into a status group. 
Individuals or groups applied .to these priests for assistance as the need 
arose, but for the rest the priests could be engaged in any occupation 
not deemed dishonorable to their status group- One other possibility is 
that priests might become attached to particular organizations, vocational 
or otherwise, and especially to a political association. But in all these 
Cases there is no actual congregation which is separate from all other 
associations. 

Such a congregation may arise when a clan of sacrificing priests 
succeeds in organizing the particular followers of their god into an 
exclusive association. Another and more usual way for a religious com- 
munity to arise is as a consequence of the destruction of a political as- 
sociation, wherever the religious adherents of the association's god and 
his priests continue as a religious congregation. The first of these types 
is to be found in India and the Near East, where it is connected, in 
numerous intermediate gradations, with the transition of mystagggic 
and exemplary prophecy or of religious reform movements into a perma- 
nent organization of congregations. Many small Hindu denominations 
developed as a result of such processes. 

By contrast, the transition from a priesthood serving a polity into 
a religious congregation was associated primarily with the rise of the 
great world empires of the Near East, especially Persia. Political associa- 
tions were annihilated and the population disarmed; their priesthoods, 
however, were assigned certain political powers and were rendered 



iv ] The Congregation Between Prophet and Priest 455 

secure in their positions. This was done because the religious congrega- 
tion was regarded as a valuable instrument for pacifying the conquered, 
just as the neighborhood association turned into a compulsory com- 
munity was found to be useful for the protection of financial interests. 
Thus, by virtue of decrees promulgated by the Persian kings from Cyrus 
to Artaxerxes, Judaism evolved into a religious community under royal 
protection, with . a theocratic center in Jerusalem. A Persian victory 
would have brought similar chances and opportunities to the Delphic 
Apollo and to the priesdy families servicing other gods, and possibly 
also to the Orphic prophets. In Egypt, after the decline of political inde- 
pendence, the national priesthood built a sort of "church" organization, 
apparendy the first of its kind, with synods. On the other hand, religious 
congregations in India arose in the more limited sense as exemplary con- 
gregations. There, the status unity of the Brahmins, as well as the unity 
of ascetic regulations, survived the multiplicity of ephemeral political 
structures, and as a consequence, the various systems of ethical salvation 
transcended all political boundaries. In Iran, the Zoroastrian priests suc- 
ceeded during the course of the centuries in propagandizing a closed 
religious organization which under the Sassanids became a political 
"denomination" Confession). (The Achaemenids, as their documents 
demonstrate, were not Zoroastrians, but rather, followers of Mazda.) 

The relationships between political authority and religious com- 
munity, from which the concept of religious denomination derived, 
belong in the analysis of domination [cf. below, ch. XV]. At this point 
it suffices to note that congregational religion is a phenomenon of diverse 
manifestations and great fluidity. We want to use the term only when 
the laity has been organized permanendy in such a manner that they 
can actively participate. A mere administrative unit which delimits the 
jurisdiction of priests is a parish, but not yet a congregational community. 
But even the concept of a parish, as a grouping different from the 
secular, political, or economic community, is missing in the religions of 
China and ancient India. "Again, the Greek and other ancient phratries 
and similar cultic communities were not parishes, but political or other 
types of associations whose collective actions stood under the guardian- 
ship of some god. As for the parish of ancient Buddhism, moreover, this 
was only a district in which temporarily resident mendicant monks were 
required to participate in the semimonthly convocations. 

In medieval Christianity in the Occident, in post-Reformation Lu- 
theranism and Anglicanism, and in both Christianity and Islam in the 
Near East, the parish was essentially a passive ecclesiastical tax unit and 
the jurisdictional district of a priest. In these religions the laymen 
generally lacked completely the character of a congregation. To be sure, 



4 5 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

small vestiges of congregational rights have been retained in certain 
Oriental churches and have also been found in Occidental Catholicism 
and Lutheranism. On the other hand, ancient Buddhist monasticism, 
like the warriors of ancient Islam, and like Judaism and ancient Chris- 
tianity, had religious congregations with varying degrees of organiza- 
tional elaboration (which will not yet be discussed in detail). Further- 
more, a certain actual influence of the laity may be combined with the 
absence of a regular local congregational organization. An example of 
this would be Islam, where the laity wields considerable power, par- 
ticularly in the Shiite sect, even though this is not legally secure; the 
Shah usually would not appoint priests without being certain of the 
consent of the local laity. 

On the other hand, it is the distinctive characteristic of every sect, 
in the technical sense of the term (a subject we shall consider later 
[see below, ch. XV: 14]), that it is based on a restricted association of 
individual local congregations. From this principle, which is represented 
in Protestantism by the Baptists and Independents, and later by the 
Congregationalists, a gradual transition leads to the typical organization 
of the Reformed Church. Even where the latter has become a universal 
organization, it nevertheless makes membership conditional upon a 
contractual entry into some particular congregation. We shall return 
later to some of the problems which arise from these diversities. At the 
moment, we are particularly interested in just one consequence of the 
generally so very important development of genuine congregational re- 
ligions: That the relationship between priesthood and laity within the 
community becomes of crucial significance for the practical effect of the 
religion. As the organization assumes the specific character of a congre- 
gation, the very powerful position of the priest is increasingly confronted 
with the necessity of keeping in mind the needs of the laity, in the 
interest of maintaining and enlarging the membership of the community. 
Actually, every type of priesthood is to some extent in a similar position. 
In order to maintain its own power, the priesthood must frequently meet 
the needs of the laity in a very considerable measure. The three forces 
operative within the laity with which the priesthood must come to grips 
are: (a) prophecy, (b) the traditionalism of the laity, and (c) lay intel- 
'lectualism. In contrast to these forces, another decisive factor at work 
here derives from the necessities and tendencies of the priestly enterprise 
as such. A few words need to be said about this last factor in its relation 
to the first one. 

As a rule, the ethical and exemplary prophet is himself a layman, 
and his power position depends on his lay followers. Every prophecy by 
its very nature devalues the magical elements of the priestly enterprise, 



iv ] The Congregation Between Prophet and Priest 4 5 7 

but in very different degrees. The Buddha and others like him, as well 
as the prophets of Israel, rejected and denounced adherence to knowl- 
edgeable magicians and soothsayers (who are also called "prophets" in 
the Israelite sources), and indeed they scorned all magic as inherently 
useless. Salvation could be achieved only by a distinctively religious and 
meaningful relationship to the eternal. Among the Buddhists it was 
regarded as a mortal sin to boast vainly of magical capacities; yet the 
existence of the latter among the unfaithful was never denied by the 
prophets of either India or Israel, nor denied by the Christian apostles 
or the ancient Christian tradition. All prophets, by virtue of their rejec- 
tion of magic, were necessarily skeptical of the pries dy enterprise, though 
in varying degrees and fashions. The god of the Israelite prophets desired 
not burnt offerings, but obedience to his commandments. The Buddhist 
will get nowhere in his quest for salvation merely with Vedic knowledge 
and ritual; and the ancient sacrifice of soma was represented in the oldest 
Gathas as an abomination to Ahura-mazda. 

Thus, tensions between the prophets, their lay followers and the 
representatives of the priestly tradition existed everywhere. To what 
degree the prophet would succeed in fulfilling his mission, or would 
become a martyr, depended on the outcome of the struggle for power, 
which in some instances, e.g., in Israel, was determined by the inter- 
national situation. Apart from his own family, Zoroaster depended on 
the clans of the nobles and princes for support in his struggle against 
the nameless counter-prophet; this was also the case in India and with 
Muhammad. On the other hand, the Israelite prophets depended on the 
support of the urban and rural middle class. All of them, however, made 
use of the prestige which their prophetic charisma, as opposed to the 
technicians of the routine cults, had gained for them among the laity. 
The sacredness of a new revelation opposed that of tradition; and de- 
pending on the success of the propaganda by each side, the priesthood 
might compromise with the new prophecy, outbid its doctrine, or elimi- 
nate it, unless it were subjugated itself. 



2. Canonical Writings, Dogmas and Scriptural Religion 

In any case, the priesthood had to assume the obligation of codifying 
either the victorious new doctrine or the old doctrine which had main- 
tained itself despite an attack by the prophets. The priesthood had to 
delimit what must and must not be regarded as sacred and had to infuse 
its views into the religion of the laity, if it was to secure its own position. 
Such a development might have causes other than an effort by hostile 



4 5 8 RELIGIOUS GROUPS (SOCIOLOGY OF KELIGIOn) [ Cfe. VI 

prophets to imperil the position of the priesthood, as for example in 
India, where this took place very early. The simple interest of the priest- 
hood in securing its own position against possible attack, and the neces- 
sity of insuring the traditional practice against the scepticism of the laity 
might produce similar results. Wherever this development took place it 
produced two phenomena, viz., canonical writings and dogmas, both of 
which might be of very different scope, particularly the latter. Canonical 
scriptures contain the revelations and traditions themselves, whereas 
dogmas are priestly interpretations of their meaning. 

The collection of the prophetic religious revelations or, in the other 
case, of the traditionally transmitted sacred lore, may take place in the 
form of oral tradition. Throughout many centuries the sacred knowledge 
of the Brahmins was transmitted orally, and setting it down in Writing 
was actually prohibited. This of course left a permanent mark on the 
literary form of this knowledge and also accounts for the not inconsider- 
able discrepancies in the texts of individual schools (Shakhas'), the rea- 
son being that this knowledge was meant to be possessed only by qual- 
ified persons, namely the twice-bom. To transmit such knowledge to 
anyone who had not experienced the second birth and was excluded 
by virtue of his caste position (Shttdra") 1 was a heinous sin. Understand- 
ably, all magical lore originally has this character of secret knowledge, 
to protect the professional interest of the guild. But there are also aspects 
of this magical knowledge which everywhere become the material for 
the systematic instruction of other members of the group-at-Iargs, At 
the root of the oldest and most universally diffused magical system of' 
education is the animistic assumption that just as the magician himself 
requires rebirth and the possession of a new soul for his art, so heroism 
rests on a charisma which must be aroused, tested, and instilled into the 
hero by magical manipulations. In this way, therefore, the warrior is 
reborn into heroism. Charismatic education in this sense, with its 
novitiates, trials of courage, tortures, gradations of holiness and honor, 
initiation of youths, and preparation for battle, is an almost universal 
institution of all societies which have experienced warfare. 

When the guild of magicians finally develops into the priesthood, 
this extremely important function of educating the laity does not cease, 
and the priesthood always concerns itself with maintaining this function. 
More and more, secret lore recedes and the priestly doctrine becomes a 
scripturally established tradition which the priesthood interprets by means 
of dogmas. Such a scriptural religion subsequendy becomes the basis of 
a system of education, not only for the professional members of the 
priestly class, but also for the laity, indeed especially for the laity. 

Most, though not all, canonical sacred collections became-officially 



iv ] The Congregation Between Prophet and Priest 4 5 9 

closed against secular or religiously undesirable additions as a conse- 
quence of a struggle between various competing groups and prophecies 
for the control of the community. Wherever such a struggle failed to 
occur or wherever it did not threaten the content of the tradition, the 
formal canonization of the scriptures took place very slowly. The canon 
of the Jewish scriptures was not fixed until the year 90 a.d., shordy 
after the destruction of the theocratic state, when it wars fixed by the 
synod of Jamnia perhaps as a dam against apostolic prophecies, and even 
then the canon was established only in principle. In the case of the 
Vedas the scriptural canon was established in opposition to intellectual 
heterodoxy. The Christian canon was formalized because of the threat 
to the piety of the petty-bourgeois masses from the intellectual salvation 
doctrine of the Gnostics. On the other hand, the soteriology of the intel- 
lectual classes of ancient Buddhism was crystallized in the Pali canon 
as a result of the danger posed by the missionizing popular salvation 
religion of the Mahayana. The classical writings of Confucianism, like 
the priestly code of Ezra, were imposed by political force. For this reason, 
the former never became sacred, and only at a late stage did the latter 
take on the quality of authentic sacredness, which is always the result 
of priesdy activity. Only the Koran underwent immediate editing, by 
command of the Caliph, and became sacred at once, because the semi- 
literate Muhammad held that the existence of a holy book automatically 
carries with it the mark of prestige for a religion. This view of prestige 
was related to widely diffused notions concerning the taboo quality and 
the magical significance of scriptural documents. Long before the estab- 
lishment of the biblical canon, it was held that to touch the Pentateuch 
and the authentic prophetic writings "rendered the hands unclean." 

The details of this process and the scope of the writings that were 
taken into the canonical sacred scriptures do not concern us here. It 
was due to the magical status of sacred bards that there were admitted 
■into the Vedas not only the heroic epics but also sarcastic poems about 
the intoxicated Indra, as well as other poetry of every conceivable con- 
' tent. Similarly, a love poem and various personal details involved with 
the prophetic utterances were received into the Old Testament canon. 
Finally, the New Testament included a purely personal letter of Paul, 
and the Koran found room in a number of suras for records of all-too- 
human family vexations in the life of its prophet. 

The closing of the canon was generally accounted for by the theory 
that only a certain epoch in the past history of "the religion had been 
blessed with prophetic charisma. According to the theory of the rabbis 
this was the period from Moses to Alexander, while from the Roman 
Catholic point of view the period was the Apostolic Age. On the whole, 



460 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

these theories correctly express recognition of the contrast between 
prophetic and priestly systematization. Prophets systematized religion 
with a view to unifying the relationship of man to the world, by refer- 
ence to an ultimate and integrated value position. On the other hand,' 
priests systematized the content of prophecy or of the sacred traditions 
by supplying them with a casuistical, rationalistic framework of analysis, 
and by adapting them to the customs of life and thought of their own 
stratum and of the laity whom they controlled. 

The development of priestly education from the most ancient charis- 
matic stage to the period of literary education has considerable practical 
importance in the evolution of a faith into a scriptural religion, either, 
in the complete sense of an attachment to a canon regarded as sacred 
or in the more moderate sense of the authoritativeness of a scripturally 
fixed sacred norm, as in the case of the Egyptian Book of the Dead. As 
literacy becomes more important for the conduct of purely secular affairs, 
which therefore assume the character of bureaucratic administration 
and proceed according to regulations and documents, the education of 
even secular officials and educated laymen passes into the hands of 
literate priests, who may also directly occupy offices the functions of 
which involve the use of writing, as in the chancelleries of the Middle 
Ages. To what degree one or the- other of these processes takes place 
depends also, apart from the degree to which the administration has 
become bureaucratized, on the degree to which other strata, principally 
the warrior nobles, have developed their own system of education and 
have taken it into their own hands. Later on we must discuss the bifurca- 
tion of educational systems which may result from this process. We must 
also consider the total suppression or nondevelopment of a purely 
priestly system of education, which may result from the weakness of the 
priests or from the absence of either prophecy or scriptural religion. 

The establishment of a religious congregation provides the strongest 
stimulus, though not the only one, for the development of the substan- 
tive content of the priestly doctrine, and it creates the specific importance 
of dogmas. Once a religious community Jias become established it feels 
a need to set itself apart from alien competing doctrines and to maintain 
its superiority in propaganda, all of which tends to place the emphasis 
upon differential doctrines. To be sure, this process of differentiation 
may be considerably strengthened by nonreligious motivations. For 
example, Charlemagne insisted, for the Frankish church, on the doctrine 
of filtoque, which created one of the differences between the oriental 
and occidental Christian churches. This, and his rejection of the canon 
favorable to the icons, had political grounds, being directed against the 
supremacy of the Byzantine church. 8 Adherence to completely incom- 



iv ] _ The Congregation Between Prophet and Priest 4 6 1 

prehensible dogmas, like the espousal of the Monophysite doctrine, by 
great masses of people in the Orient and in Egypt, was the expression 
of an anti-imperial and ^anti-Hellenic separatist nationalism. Similarly, 
the monophysitic Coptic church later preferred the Arabs to the [East] 
Romans as overlords. Such trends occurred frequently. 

But the struggles of priests against indifference, which they pro- 
foundly hate, and against the danger that the zeal of the membership 
would stagnate generally played the greatest role in pushing distinctive 
criteria and differential doctrines to the foreground. Another factor was 
emphasis on the importance of membership in a particular denomination 
and the priests' desire to make difficult the transference of membership 
to another denomination. The historical precedent was provided by the 
tattoo markings of fellow members of a totemistic or warrior clan, which 
had a magical basis. Closest to totemic tattoo, at least externally, was the 
differential body painting of the Hindu sects. The Jewish retention of 
circumcision and of the Sabbath taboo was also intended, as is repeatedly 
^indicated in the Old Testament, to effect separation from other nations, 
and it indeed produced such an effect to an extraordinary degree. A 
sharp differentiation of Christianity from Judaism was produced by the 
Christian choice of the day of the sun god as a day of rest, although 
this choice might possibly be accounted for by the Christian reception of 
the soteriologial myrhos of mystagogic Near Eastern salvation doctrines 
of solar religion. Muhammad's choice of Friday for weekly religious 
services was probably motivated primarily by his desire to segregate his 
followers from the Jews, after his missionary effort among them had 
failed. But his absolute prohibition of wine had too many analogies with 
comparable ancient and contemporary phenomena, e.g., among the 
Rechabites and Nazirites, to have been determined necessarily by his 
desire to erect a dam against Christian priests, who are under the obliga- 
tion to take wine (at Holy Communion). 

In India differential dogmas corresponding to exemplary prophecy 
had generally a more practical ethical character, while those having an 
affinity to mystagogy were more ritualistic. The notorious ten points 
which produced the great schism of Buddhism at the Council of Vesali 
involved mere questions of monastic regulations, including many public 
details which were emphasized only for the purpose of establishing the 
separation of the Mahayana organization. 

Asiatic religions, on the other hand, knew practically nothing of 
dogma as an instrumentality of differentiation. To be sure, the Buddha 
enunciated his fourfold truth concerning the great illusions as the basis 
for the practical salvation doctrine of the noble eightfold path. But the 
comprehension of those truths for the sake of their practical conse- 



I 



462 . RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

quences, and not as dogma in the Occidental sense, is the goal of the 
work of salvation. This is also the case with the majority of ancient 
Hindu prophecies. 

In the Christian congregation one of the very first binding dogmas, 
characteristically, was God's creation of the world out of nothing, and 
consequently the establishment of a transcendental god in contradistinc- 
tion to the gnostic speculation of the intellectuals. In India, on the other \ 
hand, cosmological and other metaphysical speculations remained the = 
concern of philosophical schools, which were always permitted a very wide • -i 
range of latitude in regard to orthodoxy, though not without some limits-, : ; 
tions- In China the Confucian ethic completely rejected all ties to meta- 
physical dogma, if only for the reason that magic and belief in spirits had 
to remain untouched in the interest of maintaining the cult of ancestors, 
which was the foundation of patrimonial-bureaucratic obedience (as ex- 
pressly stated in the tradition). 

Even within ethical prophecy and the congregational religion it 
produced, there was a wide diversity in the scope of proliferation of 
genuine dogmas. Ancient Islam contented itself with confessions of 
loyalty to god and to the prophet, together with a few practical and 
ritual primary commandments, as the basis of membership. But dogmatic 
distinctions, both practical and theoretical, became more comprehensive 
as priests, congregational teachers, and even the community itself be- 
came bearers of the religion. This holds for the later Zoroastrians, Jews, 
and Christians. But genuinely dogmatic controversy could arise in 
ancient Israel or Islam only in exceptional cases, since both these relf- 
gions were characteri2ed by a simplicity of doctrinal theology. In both 
religions the main area of dispute centered about the doctrine of grace, 
though there were subsidiary disputes about ethical practice and about 
ritual and legal questions. This is even truer of Zoroastrianism. 

Only among the Christians did there develop a comprehensive, 
binding and systematically rationalized dogmatics of a theoretical type 
concerning cosmological matters, the soteriological myihos (Christology), 
and priestly authority (the sacraments). This Christian dogmatics de- 
veloped first in the Hellenistic portion of the Roman empire, but in the 
Middle Ages the major elaborations occurred in the Occident. In general, 
theological development was far stronger in the Western than in the 
Eastern churches, but in both regions the maximum development of 
theology occurred wherever a powerful organization of priests possessed 
the greatest measure of independence from political authorities. 

This Christian preoccupation with the formulation of dogmas was 
in Antiquity particularly influenced by the distinctive character of the 
intelligentsia which was a product of Greelc education; by the special 
metaphysical presuppositions and tensions produced by the cult of 



«? ] _ The Congregation Between Prophet and Priest 4^3 

Christ; by the necessity of taking issue with the educated stratum which 
at first remained outside the Christian community; and by the ancient 
Christian church's hostility to pure intellectualism (which stands in such 
contrast to the position taken by the Asiatic religions). Socially, Chris- 
tianity was a congregational religion comprising primarily petty-bourgeois 
laymen, who looked with considerable suspicion upon pure intellectual- 
ism, a phenomenon which had to be given considerable attention by the 
bishops. In the Orient, non-Hellenic petty-bourgeois circles increasingly 
supplied Christianity with its monks; this destroyed Hellenic culture in 
the Orient and brought to an end the rational construction of dogma 
there. 

In addition, the mode of organization of the religious congregations 
was an important determinant. In ancient Buddhism, the complete and 
purposeful absence of all hierarchical organization would have handi- 
capped any consensus concerning rational dogmatics, such as was pro- 
duced in Christianity, even assuming that the salvation doctrine would 
- have needed any such dogmatic consensus. Christianity found it neces- 
sary to postulate some power able to make decisions concerning the 
orthodoxy of doctrines, in order to protect the unity of the community 
against the intellectual activity of priests and against the competing lay 
rationalism which had been aroused by ecclesiastical education. The result 
of a long process of evolution, the details of which cannot be expounded 
here, was that the Roman church produced the infallible doctrinal office 
of its bishop, in the hope that God would not permit the congregation 
of the world capital to fall into error. Only in this case do we find a 
consistent doctrinal solution, which assumes the inspiration of the in- 
cumbent of the doctrinal office whenever a decision has to be rendered 
concerning doctrine. 

On the other hand, Islam and the Eastern church, for various rea- 
sons to be explained below, retained as their basis for determining the 
validity of dogmatic truths the practice of depending on the consensus 
of the official bearers of the ecclesiastical teaching organization, who 
were primarily theologians or priests, as the case might be. Islam arrived 
at this position by holding fast to the assurance of its prophet that God 
would never permit the congregation of the faithful to fall into error. 
The Eastern church followed in this regard the model of the earliest 
practice of the Christian church. The net effect of this was to slow down 
the proliferation of dogma in these religious traditions. By contrast, the 
Dalai Lama has political powers and control over the church, but he has 
no doctrinal powers proper in view of the magical-ritualist character of 
Lamaism. Among the Hindus the power of excommunication entrusted 
to the gurus was largely employed for political reasons and only rarely for 
the punishment of dogmatic deviations. 



464 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ck. VI 

3. Preaching and Pastoral Care as Results of Prophetic 
Religion 

The work of the priests in systematizing the sacred doctrines was 
constantly nourished by the new material that was turned up in their 
professional practice, so different from the practice of magicians. In the 
ethical type of congregational religion something altogether new evolved, 
namely preaching, and something very different in kind from magical 
assistance, namely rational pastoral care. 

Preaching, which in the true sense of the word is collective instruc- 
tion concerning religious and ethical matters, is normally specific to 
prophecy and prophetic religion. Indeed, wherever it arises apart from 
these, it is an imitation of them. But as a rule, preaching declines in 
importance whenever a revealed religion has been transformed into a 
priestly enterprise by routinization, and the importance of preaching 
stands in inverse proportion to the magical components of a religion. 
Buddhism originally consisted entirely of preaching, so far as the laity 
was concerned. In Christianity the importance of preaching has been 
proportional to the elimination of the more magical and sacramental 
components of the religion. Consequently, preaching achieves the great- 
est significance in Protestantism, in which the concept of the priest has 
been supplanted altogether by that of the preacher. 

Pastoral care, the religious cultivation of the individual, is also in its 
rationalized and systematized form a product of prophetically revealed 
religion; and it has its source in the oracle and in consultations with the* 
diviner or necromancer. The diviner is consulted when sickness or other 
blows of fate have led to the suspicion that some magical transgression 
is responsible, making it necessary to ascertain the means by which the 
aggrieved spirit, demon, or god may be pacified. This is also the source 
of the confessional, which originally had no connection with ethical 
influences on life. The connection between confession and ethical con- 
duct was first effected by ethical religion, particularly by prophecy. 
Pastoral care may later assume diverse forms. To the extent that it is a 
charismatic distribution of grace it stands in a close inner relationship to 
magical manipulations. But the care of souls may also involve the instruc- 
tion of individuals regarding concrete religious obligations whenever 
certain doubts- have arisen. Finally, pastoral care may in some sense 
stand midway between charismatic distribution of grace and instruction, 
entailing the distribution of personal religious consolation in times of 
inner or external distress. 

Preaching and pastoral care differ widely in the strength of their 
practical influence on the conduct of life. Preaching unfolds its power 



iv ] The Congregation Between Prophet cmA Priest 465 

most strongly in periods of prophetic excitation. In the treadmill of daily 
living it declines sharply to an almost complete lack of influence upon 
the conduct of life, for the very reason that the charisma of speech is an 
individual matter. 

Pastoral care in all its forms is the priests' real instrument of power, 
particularly over the workaday world, and it influences the conduct of 
life most powerfully when religion has achieved an ethical character. 
In fact, the power of ethical religion over the masses parallels the de- 
velopment of pastoral care. Wherever the power of an ethical religion is 
intact, the pastor will be consulted in all the situations of life by both 
private individuals and the functionaries of groups, just as the profes- 
sional divining priest would be consulted in the magical religions, e.g., 
the religion of China. Among these religious functionaries whose pas- 
toral care has influenced the everyday life of the laity and the attitude 
of the power-holders in an enduring and often decisive manner have 
been the counseling rabbis of Judaism, the father confessors of Catholi- 
cism, the pietistic pastors of souls in Protestantism, the directors of souls 
in Counter-Reformation Catholicism, the Brahminic purohhas at the 
court, the gurus and gosains in Hinduism, and the muftis and dervish 
sheiks in Islam. 

As for the conduct of the individual's private life, the greatest in- 
fluence of pastoral care was exerted when the priesthood combined 
ethical casuistry with a rationalized system of ecclesiastical penances. 
This was accomplished in a remarkably skillful way by the occidental 
church, which was schooled in the casuistry of Roman law. It is primarily 
these practical responsibilities of preaching and pastoral care which stimu- 
lated the labors of the priesthood in systematizing the casuistical treat- 
ment of ethical commandments and religious truths, and indeed first 
compelled them to take an attitude toward the numerous problems which 
had not been settled in the revelation itself. Consequently, it is these 
same practical responsibilities of preaching and pastoral care which 
brought in their wake the substantive routinization of prophetic demands 
into specific prescriptions of a casuistical, and hence more rational, char- 
acter, in contrast to the prophetic ethics. But at the same time this de- 
velopment resulted in the loss of that unity which the prophet had intro- 
duced into the ethics — the derivation of a standard of life out of a distinc- 
tive "meaningful" relationship to one's god, such as he himself had pos- 
sessed and by means of which he assayed not the external appearance of a 
single act, hut rather its meaningful significance for the total relation- 
ship to the god. As for priestly practice, it required both positive in- 
junctions and a casuistry for the laity. For this reason the preoccupation 



466 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

of religion with an ethics of ultimate ends had necessarily to undergo 
a recession. 

It is evident that the positive, substantive injunctions of the prophetic 
ethic and the casuistical transformation thereof by the priests ultimately 
derived their material from problems which the folkways, conventions, 
and factual needs of the laity brought to the priests for disposition in 
their pastoral office. Hence, the more a priesthood aimed to regulate the 
behavior pattern of the laity in accordance with the will of the god, and 
especially to aggrandize its status and income by so doing, the more it 
had to compromise with the traditional views of the laity in formulating 
patterns of doctrine and behavior. This was particularly the case when 
no great prophetic preaching had developed which might have wrenched 
the faith of the masses from its bondage to traditions based upon magic. 

As the masses increasingly became the object of the priests' influence 
and the foundation of their power, the priesdy labors of systematization 
concerned themselves more and more with the most traditional, and 
hence magical, forms of religious notions and practices. Thus, as the 
Egyptian priesthood pressed towards greater power, the animistic cult 
of animals was increasingly pushed into the center of religious interest, 
evtn though it is most likely that the systematic intellectual training of 
the priests had grown by comparison with earlier times. And so too in 
India, there was an increased systematization of the cult after the dis- 
placement by the Brahmins of the hotar, the sacred charismatic singer, 
from first place in the sacrificial ceremonial. The Atharva Veda is much 
younger than the Rig Veda as a literary product, and the Brahmanas are - 
much younger still. Yet the systematized religious material in the Atharva' 
Veda is of much older provenience than the rituals of the noble Vedic 
cults and the other components of the older Vedas; indeed, the Atharva 
Veda is a purely magical ritual to a far greater degree than the older 
Vedas. The process of popularization and transformation into magic of 
religion which had been systematized by the priests continued even 
further in the Brahmanas. The older Vedic cults are indeed, as Olden- 
berg* has emphasized, cults of the propertied strata, whereas the magical 
ritual had been the possession of the masses since ancient times. 

A similar process appears to have taken place in regard to prophecy. 
In comparison with the intellectual contemplativeness of ancient Bud- 
dhism, which had achieved the highest peaks of sublimity, the Mahayana 
religion was essentially a popularization that increasingly tended to 
approach pure wizardry or sacramental ritualism. A similar fate overtook 
the doctrines of Zoroaster, Lao Tzu, and the Hindu religious reformers, 
and to some extent the doctrines of Muhammad as well, when the re- 
spective faiths of these founders became religions of laymen. Thus, the 



iv ] _ The Congregation Between Prophet and Priest 467 

Zend Avesta sanctioned the cult of Haoma, although it had been ex- 
pressly and strongly combated by Zoroaster, perhaps eliminating merely 
a few of the bacchantic elements which he had denounced with special 
fervor. Hinduism constantly betrayed a growing tendency to slide over 
into magic, or in any case into a semi-magical sacramental soteriology. The 
propaganda of Islam in Africa rested primarily on a massive foundation 
of magic, by means of which it has continued to outbid other competing 
faiths despite the rejection of magic by earliest Islam. 

This process, which is usually interpreted as a decline or petrifaction 
of prophecy, is practically unavoidable- The prophet himself is normally 
a righteous lay preacher of sovereign independence whose aim is to sup- 
plant the traditional ritualistic religious grace of the ecclesiastical type 
by organizing life on the basis of ultimate ethical principles. The laity's 
acceptance of the prophet, however, is generally based on the fact that 
he possesses a certain charisma. This usually means that he is a magician, 
in fact much greater and more powerful than other magicians, and in- 
deed that he possesses unsurpassed power over demons and even over 
death itself. It usually means that he has the power to raise the dead, 
and possibly that he himself may rise from the grave. In short, he is able 
to do things which other magicians are unable to accomplish. It does 
not matter that the prophet attempts tc deny such imputed powers, for 
after his death this development proceeds without and beyond him. If 
he is to continue to live on in some manner among large numbers of the 
laity, he must himself become the object of a cult, which means he must 
become the incarnation of a god. If this does not happen, the needs of 
the laity will at least insure that the form of the prophet's teaching which 
is most appropriate for them will survive by a process of selection. 

Thus, these two types of influences, viz., the power of prophetic 
charisma and the enduring habits of the masses, influence the work of 
the priests in their systematization, though they tend to oppose one an- 
other at many points. But even apart from the fact that prophets prac- 
tically always come out of lay groups or find their support in them, the 
laity is not composed of exclusively traditionalistic forces. The rationalism 
of lay circles is another social force with which the priesthood must take 
issue. Different social strata may be the bearers of this lay rationalism. 



NOTES 

1. See Christian Bartholomae, trans, and ed., Die Gaiha's 4es Awesta. Zara- 
ihitshtra's Verspredigten (Strassburg: Triibner, 1905), 130; SodaUn were the 
members of the first rank in Zoroastrianism; the second rank was constituted by 
the knights, the third by the peasants. 



468 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

2. On the Shudras, cf. Weber, The Religion of India, 5;ff. 

3. In the Western church, the Nicene Creed was modified in the 9th cen- 
tury by the phrase "<jui ex Patre Filioqtte procedit." Thus, belief was professed 
in the Father, the Son and the Holy Ghost proceeding from both of them. This 
addition became the subject of a long controversy between the Orthodox and the 
Western church. 

4. Hermann Oldenberg, Die Religion der Veda, 1894, 4th ed., 1923. (W,) 



The Religious Propensities of Peasantry, 
Nobility and Bourgeoisie 1 

1 . Peasant Religion and Its Ideological Glorification 

The lot of peasants is so strongly tied to nature, so dependent on 
organic processes and natural events, and economically so little oriented 
to rational systematization that in general the peasantry will become a 
carrier of religion only when it is threatened by enslavement or prole- 
tarianization, either by domestic forces (financial or seigneurial) or by 
some external political power. 

Ancient Israelite religious history already manifested both major 
threats to the peasant class: first, pressures from foreign powers thai 
threatened enslavement, and second, conflicts between peasants and 
landed magnates (who in Antiquity resided in the cities). The oldest 
documents, particularly the Song of Deborah, reveal the typical elements 
of the struggle of a peasant confederacy, comparable to that of the 
Aetolians, Samnites, and Swiss. Another point of similarity with the 
Swiss situation is that Palestine possessed the geographical character of 
a land bridge, being situated on a great trade route which spanned the 
terrain from Egypt to the Euphrates. This facilitated early a money econ- 
omy and culture contacts. The Israelite confederacy directed its efforts 
against both the Philistines and the Ganaanite land magnates who dwelt 
in the cities. These latter were knights who fought with iron chariots, 
"warriors trained from their very youth," as Goliath was described, who 
sought to enslave and render tributary the peasantry of the mountain 
slopes where milk and honey flowed. 

It was a most significant constellation of historical factors that this 
struggle, as well as the social unification and the expansion of the 



v ] Religious Propensities of Various Status Groups 46$ 

Mosaic period, was constantly renewed under the leadership of the 
Yahweh religion's saviors ("messiahs," from mashiah, "the anointed one," 
as Gideon and others, the so-called "Judges,"- were termed). Because 
of- this distinctive leadership, a religious concern that far transcended 
the level of the usual agrarian cults entered very early into the ancient 
religion of the Palestinian peasantry. But not until the city of Jerusalem 
had been conquered did the cult of Yahweh, with its Mosaic social 
legislation, become a genuinely ethical religion. Indeed, as the social 
admonitions of the prophets demonstrate, even here this took place partly 
under the influence of agrarian social reform movements directed against 
the urban landed magnates and financial nabobs, and by reference to the 
social prescriptions of the Mosaic law regarding the equalization of status 
groups. 

But prophetic religion has by no means been the product of specif- 
ically agrarian influences. A typical plebeian fate was one of the dynamic 
factors in the moralism of the first and only theologian of official Greek 
literature, Hesiod. But he was certainly not a typical "peasant." 
The more agrarian the essential social pattern of a culture, e.g., Rome, 
India, or Egypt, the more likely it is thai the agrarian element of the 
population will fall into a pattern of tiaditionalism and that at least the 
religion of the masses will lack ethical rationalization. Thus, in the later 
development of Judaism and Christianity, the peasants never appeared 
as the carriers of rational ethical movements. This statement is com- 
pletely true of Judaism, while in Christianity the participation of the 
peasantry in rational ethical movements took place only in exceptional 
cases and then in a communist, revolutionary form. The puritanical 
sect of the Donatists in Roman Africa, the Roman province of greatest 
land accumulation, appears to have beer, very popular among the peas- 
antry, but this was the sole example of peasant concern for a rational 
ethical movement in Antiquity. The Taborites, insofar as they were de- 
rived from peasant groups, the peasant protagonists of "divine right" in 
the German peasant war [of 1524/5], the English radical communist 
smallholders, and above all the Russian peasant sectarians — all these have 
origins in agrarian communism by virtue of the pre-existing, more 
or less developed communal ownership of land. 2 All these groups 
felt themselves threatened by proletarization, and they turned against the 
official church in the first instance because it was the recipient of tithes 
and served as a bulwark of the financial and landed magnates. The asso- 
ciation of the aforementioned peasant groups with religious demands was 
possible only on the basis of an already existing ethical religion which 
contained specific promises that might suggest and justify a revolutionary 
natural law. More will be said about this in another context. 



4 7° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

Hence, manifestations of a close relationship between peasant reli- 
gion and agrarian reform movements did not occur in Asia, where the 
combination of religious prophecy with revolutionary currents, e.g., as 
in China, took a different direction altogether, and did not assume the 
form of a real peasant movement. Only rarely does the peasantry serve 
as the carrier of any other sort of religion than their original magic. 

Yet the prophecy of Zoroaster apparently appealed to the (relative) 
rationalism of peasants who, having learned to work in an orderly fashion 
and to raise catde, were struggling against the orgiastic religion of the 
false prophets, which entailed the torture of animals. This, like the 
cult of intoxication which Moses combated, was presumably associated 
with the bacchantic rending of live animals. In the religion of the^ 
Parsees, only the cultivated soil was regarded as pure from the magical 
point of view, and therefore only agriculture was absolutely pleasing 
to god. Consequently, even after the pattern of the religion established 
by the original prophecy had undergone considerable transformation as 
a result of its adaptation to the needs of everyday life, it retained a dis- 
tinctive agrarian pattern, arid consequendy a characteristically anti-urban 
tendency in its doctrines of social ethics. But to the degree that the 
Zoroastrian prophecy set in motion certain economic interests, these were 
probably in the beginning the interests of princes and lords in the 
peasants' ability to pay taxes, rather than peasant interests. As a general 
rule, the peasantry remained primarily involved with weather magic 
and animistic magic or ritualism; insofar as it developed any ethical re- 
ligion, the focus was on a purely formalistic ethic of do ut des in relation 
to both god and priests. 

That the peasant has become the distinctive prototype of the pfotis 
man who is pleasing to god is a thoroughly moderri phenomenon, with 
the exception of Zoroastrianfsm and a few scattered examples of opposi- 
tion to urban culture and its consequences on the part of literati repre- 
senting patriarchal and feudalistic elements, or conversely, of intellectuals 
imbued with Weltschmerz. None of the more important religions of 
Eastern Asia had any such notion about the religious merit of the 
peasant. Indeed, in the religions of India, and most consistently in the 
salvation religion of Buddhism, the peasant is religiously suspect or 
actually proscribed because of ahimsft, the absolute prohibition against 
taking the life of any living thing. 

The Israelite religion of preprophetic times was still very much a 
religion of peasants. On the other hand, in exilic times the glorification 
of agriculture as pleasing to God was largely the expression of opposition 
to urban development felt by literary or patriarchal groups. The actual 
religion had rather a different appearance, even at that time; and later 



v ] Religious Propensities of Various Status Groups 4 7 1 

on in the period of the Pharisees it was completely different in this re- 
gard. To the congregational piety of the chabenm the "rustic" was vir- 
tually identical with the "godless," the rural dweller being politically 
and religiously a Jew of the second class. For it was virtually impossible 
for a peasant to live a pious life according to the Jewish -ritual law, 
just as in Buddhism and Hinduism. The practical consequences of 
postexilic theology, and even more so of the Talmudic theology, made it 
extremely difficult for a Jew to practice agriculture. Even now, the 
Zionist colonization of Palestine has met with an absolute impediment 
in the form of the sabbatical year, a product of the theologians of later 
Judaism. To overcome this difficulty, the eastern European rabbis, in con- 
trast to the more doctrinaire leaders of German Jewish orthodoxy, have 
had to construe a special dispensation based on the notion that such 
colonizing is especially pleasing to God. 

In early Christianity, it will be recalled, the rustic was simply re- 
garded as the heathen (pagonus). Even the official doctrine of the 
medieval churches, as formulated by Thomas Aquinas, treated the 
peasant essentially as a Christian of lower rank, at any rate accorded him 
very little esteem. The religious glorification of the peasant and the belief 
in the special worth of his piety is the result of a very modem develop- 
ment. It was characteristic of Lutheranism in particular — in rather 
strongly marked contrast to Calvinism, and also to most of the Prot- 
estant sects — as well as of modern Russian religiosity manifesting 
Slavophile influences. These are ecclesiastical communities which, by 
virtue of their type of organization, are very closely tied to the authori- 
tarian interests of princes and noblemen upon whom they are dependent. 
In modem Lutheranism (for this was not the position of Luther himself) 
the dominant interest is the struggle against intellectualist rationalism 
and against political liberalism. In the Slavophile religious peasant ide- 
ology, the primary concern was the struggle against capitalism and 
modem socialism. Finally, the glorification of the Russian sectarians by 
i the narodniki [populists] tries to link the anti-rationalist protest of in- 
tellectuals with the revolt of a proletarized class of farmers against a 
bureaucratic church serving the interests of the ruling classes, thereby 
surrounding both intellectual and agrarian protest with a religious aura. 
Thus, what was involved in all cases was very largely a reaction against 
the development of modem rationalism, of which the cities were re- 
garded as the carriers. 

In striking contrast to all this is the fact that in the past it was the city 
which was regarded as the site of piety. As late as the seventeenth 
century, Baxter saw in the relationships of the weavers of Kidderminster 
to the metropolis of London (made possible by the development of 



4 7 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

domestic industry) a definite enhancement of the weavers' piety. Ac- 
tually, early Christianity was an urban religion, and, as Harnack de- 
cisively demonstrated, its importance in any particular city was in direct 
proportion to the size of the urban community. 3 In the Middle Ages too, 
fidelity to the church, as well as sectarian movements in religion, charac- 
teristically developed in the cities. It is highly unlikely that an organized 
congregational religion, such as early Christianity became, could have de- 
veloped as it did apart from the community lite of a city (notably in the 
sense found in the Occident). For earJy Christianity presupposed as 
alreadv extant certain conceptions, viz., the destruction oi all taboo bar- 
riers between kin groups, the concept of office, and the concept of the 
community as a compulsory organization (j\nstult) with specific func- 
tions. To be sure, Christianity, on its part, strengthened these concep- 
tions and greatly facilitated the renewed reception of them by the 
growing European cities during the Middle Ages. But actually these 
notions fully developed nowhere else in the world but wi-hin the Medi- 
terranean culture, particularly in Hellenistic and definitely in Reman 
urban law. What is more, the specific qualities of Christianity as an 
ethical religion of salvation and as personal piety found 'heir real nurture 
in the urban environment, and it is theic that they created new move- 
ments time and again, in contrast to the ritualistic, magical or formalistic 
re-interpretation favored by the dominant f'.-uda) powers. 



2. Aristocratic hreligion versus Warring for the Faith 

As a rule, the warrior nobles, and indeed feudal powers generally, 
have not readily become the carriers of a rational religious ethic. The 
life pattern of a warrior has very little affinity with the notion of a bene- 
ficent providence, or with the systematic ethical demands of a tran- 
scendental god. Concepts like sin, salvation, and religious humility have 
not only seemed remote from all ruling strata, particularly the warrior 
nobles, but have indeed appeared reprehensible to its sense of honor. To 
accept a religion that works with such conceptions and to genuflect be- 
fore the prophet or priest would appear plebeian and dishonorable to any 
martial hero or noble person, e.g., the Roman nobility of the age of 
Tacitus, or the Confucian mandarins. It is an everyday psychological 
event for the warrior to face death and the irrationalities of human 
destiny. Indeed, the chances and adventures of mundane existence fill 
his life to such an extent that he does not require of his religion (and 
accepts only reluctantly) anything beyond protection against evil magic 
or ceremonial rites congruent with his sense of status, such as priestly 



v ] Religious Propensities of Various Status Groufs 4 7 3 

prayers for victory or for a blissful death leading directly into the hero's 
heaven. 

As has already been mentioned in another connection, the educated 
Greek always remained a warrior, at least in theory- The simple animistic 
belief in the soul which left vague the qualities of existence after death 
and the entire question of the hereafter (though remaining certain that 
the most miserable status here on earth was preferable to ruling over 
Hades), remained the normal faith of the Greeks until the time of the 
complete destruction of their political autonomy. The only developments 
beyond this were the mystery religions, which provided means for rit- 
ualistic improvement of the human condition in this world and in the 
next; the only radical departure was the Orphic congregational religion, 
with its doctrine of the transmigration of souls. 

Periods of strong prophetic or reformist religious agitation have fre- 
quently pulled the nobility in particular into the path of prophetic ethical 
religion, because this type of religion breaks through all classes and 
status groups, and because the nobility has generally been the first 
carrier of lay education. But presently the routinization of prophetic 
religion had the effect of eliminating the nobility from the circle of 
groups characterized by religious enthusiasm. This is already evident at 
the time of the religious wars in France in the conflicts of the Huguenot 
synods with a leader like Conde over ethical questions. Ultimately, the 
Scottish nobility, like the British and the French, was completely ex- 
truded from the Calvinist religion in which it, or at least some of its 
groups, had originally played a considerable role. 

As a rule, prophetic religion is naturally compatible with the status 
feeling of the nobility when it directs its promises to the warrior in the 
cause of religion. This conception assumes the exclusiveness of a uni- 
versal god and the moral depravity of unbelievers who are his adversaries 
and whose untroubled existence arouses his righteous indignation. 
Hence, such a notion is absent in the Occident of ancient times, as well 
as in all Asiatic religion until Zoroaster. Indeed, even in Parsism a direct 
connection between religious promises and war against religious infidelity 
is still lacking. It was Islam that first produced this conjunction of ideas. 

The precursor and probable model for this was the promise of the 
Hebrew god to his people, as understood and reinterpreted by Muham- 
mad after he had changed from a pietistic leader of a conventicle in 
Mecca to the podesta of Yathrib-Medina, and after he had finally been 
rejected as a prophet by the Jews. The ancient wars of the Israelite 
confederacy, waged under the leadership of various saviors operating 
under the authority of Yah web, were regarded by the tradition as holy 
wars. This concept of a holy war, i.e., a war in the name of a god, for 



4 7 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

the special purpose of avenging a sacrilege, which entailed putting the 
enemy under the ban and destroying him and all His belongings com- 
pletely, is not unknown in Antiquity, particularly among the Greeks. 
But what was distinctive of the Hebraic concept is that the people of 
Yahweh, as his special community, demonstrated and exemplified their 
god's prestige against their foes. Consequendy, when Yahweh became a 
universal god, Hebrew prophecy and the religion of the Psalmists 
created a new religious interpretation. The possession of the Promised 
Land, previously foretold, was supplanted by the farther reaching prom- 
ise of the elevation of Israel, as the people of Yahweh, above other 
nations. In the future all nations would be compelled to serve Yahweh 
and to lie at the feet of Israel. 

On this model Muhammad constructed the commandment of the 
holy war involving the subjugation of the unbelievers to political au- 
thority and economic domination of the faithful. If the infidels were 
members of "religions with a sacred book,"^-their extermination was not 
enjoined; indeed, their survival was considered desirable because of the 
financial contribution they could make. It was a Christian war of reli- 
gion that first was waged under the Augustinian formula coge intrare* 
by the terms of which unbelievers or heretics had only the choice be- 
tween conversion and extirpation. It will be recalled that Pope Urban 
lost no time in emphasizing to the crusaders the necessity for territorial 
expansion in order to acquire new benefices for their descendants. To 
an even greater degree than the Crusades, religious war for the Muslims 
was essentially an enterprise directed towards the acquisition of large 
holdings of real estate, because it was primarily oriented to securing 
feudal revenue. As late as the period of Turkish feudal law [participation 
in] the religious war remained an important qualification for preferential 
status in the distribution of sifahi prebends. Apart from the anticipated 
master status that results from victory in a religious war, even in Islam 
the religious promises associated with the propaganda for war — particu- 
larly the promise^pf an Islamic paradise for those killed in such a war 
— should not^Sfcconstrued as promises of salvation in the genuine sense 
of this term, just as Valhalla, or the paradise promised to the Hindu 
kshatriya, or to the warrior hero who has become sated with life once 
he has seen his grandson, or indeed any other hero heaven are not 
equivalent to salvation. Moreover, those religious elements of ancient 
Islam which had the character of an ethical religion of salvation largely 
receded into the background as long as Islam remained essentially a 
martial religion. 

So, too, the religion of the medieval Christian orders .of celibate 



v ] Religious Propensities of Various Status Groups 475 

knights, particular the Templars, which were first called into heing dur- 
ing the Crusades against Islam and which corresponded to the Islamic 
warrior orders, had in general only a formal relation to salvation religion. 
This was also true of the faith of the Hindu Sikhs, which was at first 
strongly pacifist. But a combination of Islamic ideas and persecution 
drove the Sikhs to the ideal of uncompromising religious warfare. An- 
other instance of the relative meagemess of the relationship of a martial 
faith to salvation religion is that of the warlike Japanese monks of Bud- 
dhism, who for a temporary period maintained a position of political 
importance. Indeed, even the formal orthodoxy of all these warrior re- 
ligionists was often of dubious genuineness. 

Although a knighthood practically always had a thoroughly negative 
attitude toward salvation and congregational religion, the relationship is 
somewhat different in "standing" professional armies, i.e., those having 
an essentially bureaucratic organization and "officers." The Chinese 
army plainly had a specialized god as did any other occupation, a hero 
who had undergone canonization by the state. Then, too, the passionate 
participation of the Byzantine army in behalf of the iconoclasts was not 
a result of conscious puritanical principles, but that of the attitude 
adopted by the recruiting districts, which were already under Islamic 
influence. But in the Roman army of the period of the Principate, from 
the time of the second century, the congregational religion of Mithra, 
which was a competitor of Christianity and held forth certain promises 
concerning the world to come, played a considerable role, together with 
certain other preferred cults, which do not interest us at this point. 

Mithraism was especially important (though not exclusively so) 
among the centurions, that is the subaltern officers who had a claim 
upon governmental pensions. The genuinely ethical requirements of the 
Midiraistic mysteries were, however, very modest and of % general 
nature only. Mithraism was essentially a ritualistic religion of purity; in 
sharp contrast to Christianity, it was entirely masculine, excluding 
women completely. In general, it was a religion of salvation, and, as 
already noted, one of the most masculine, with a hierarchical gradation 
of sacred ceremonies and religious ranks. Again in contrast to Chris- 
tianity, it did not prohibit participation in other cults and mysteries, which 
was not an infrequent occurrence. Mithraism, therefore, came under 
the protection of the emperors from the time of Commodus, who first 
went through the initiation ceremonies (just as the kings of Prussia 
were members of fraternal orders), until its last enthusiastic protagonist, 
Julian. Apart from promises of a mundane nature which, to be sure, 
were in this case as in all other religions linked with predictions regard- 



4 7 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

ing the world beyond, the chief attraction of this cult for army officers 
was undoubtedly the essentially magical and sacramental character of its 
distribution of grace and the possibility of hierarchical advancement in 
the mystery ceremonies. 



3. Bureaucratic Irreligion 

It is likely that similar factors recommended Mitbraism to civilian 
officials, for it was also very popular among them. Certainly, among gov- 
ernment officials there have been found other incipient tendencies 
towards distinctively salvation type religions. One example of this may 
be seen in the pietistic German officials, a reflection of the fact that 
in Germany middle -class ascetic piety, exemplifying a characteristically 
bourgeois pattern of life, found its representation only among the 
officials, ip the absence of a stratum of entrepreneurs. Another instance 
of the tendency of some government officials to favor the salvation type 
of religion appeared occasionally among certain really pious Prussian 
generals of the eighteenth "and nineteenth centuries. But as a rule, this 
is not the attitude to religion of a dominant bureaucracy, which is always 
the carrier of a comprehensive sober rationalism and, at the same time, 
of the ideal of a disciplined "order" and security as absolute standards of 
value. A bureaucracy is usually characterized by a profound disesteem of 
•all irrational religion, combined, however, with a recognition of its 
usefulness as a device for controlling the people. In Antiquity this attK 
tude was held by the Roman officials, while today it is shared by both 
the civilian and military bureaucracy/ 

The distinctive attitude of a bureaucracy to religious matters has 
been classically formulated in Confucianism, Its hallmark is an absolute 
lack of feeling of a need for salvation or for any transcendental anchorage 
for ethics. In its place resides what is substantively an opportunistic and 
utilitarian (though aesthetically refined) doctrine of conventions ap- 
propriate to a bureaucratic status group. Other factors in the bureaucratic 
attitude toward religion include the elimination of all those emotional 
and irrational manifestations of personal religion which go beyond the 
traditional belief in spirits, and the maintenance of the ancestral cult and 
of filial piety as the universal basis for social subordination. Still another 
ingredient of bureaucratic religions is a certain distance from the spirits, 
the magical manipulation of which is scorned by the enlightened official 
(but in which the superstitious one may participate, as is the case with 
spiritualism among us today). Yet both types of bureaucratic officials will, 



v ] Religious Propensities of Various Status Groups 477 

with contemptuous indifference, permit such spiritualistic activity to 
flourish as the religion of the masses (yolhsreligiositat). Insofar as this 
popular religion comes to expression in recognized state rites, the official 
continues to respect them, outwardly at least, as a conventional obliga- 
tion appropriate to his status, The continuous retention of magic, espe- 
cially of the ancestral cult, as the guarantee of social obedience, enabled 
the Chinese bureaucracy to completely suppress all independent ecclesi- 
astical development and all congregational religion. As for the European 
bureaucracy, although it generally shares such subjective disesteem for 
any serious concern with religion, it finds itself compelled to pay more 
official respect to the religiosity of the churches in the interest of mass 
domestication. 



4. Bourgeois Religiosity and Economic Rationalism 

If certain fairly uniform tendencies are normally apparent, in spite of 
all differences, in the religious attitude of the nobility and bureaucracy, 
the strata with the maximum social privilege, the real "middle" strata 
evince striking contrasts. Moreover, this is something quite apart from ■ 
the rather sharp differences of status which these strata manifest within 
themselves. Thus, in some instances, merchants may be members of the 
most highly privileged stratum, as in the case of the ancient urban pa- 
triciate, while in others they may be pariahs, like impecunious wandering 
peddlers. Again, they may be possessed of considerable social privilege, 
though occupying a lower social status than the nobility or officialdom; 
or they may be without privilege, or indeed disprivileged, yet actually 
exerting great social power. Examples of the latter would be the. Roman 
ordo eauester, the Hellenic metoikoi, the medieval cloth merchants and 
other merchant groups, the financiers and great merchant princes of 
t Babylonia, the Chinese and Hindu traders, and finally the bourgeoisie of 
the early modern period. 

Apart from these differences of social position, the attitude of the 
commercial patriciate toward religion shows characteristic contrasts in all 
periods of history. In the nature of the case, the strongly mundane ' 
orientation of their life would make it appear unlikely that they have 
much inclination for prophetic or ethical religion. The activity of the 
great merchants of ancient and medieval times represented a distinctive 
kind of specifically occasional and unprofessional acquisition of money, 
e.g., by providing capital for traveling traders who required it. Originally 
seigneurial rulers, these merchants became, in historical times, an urban 



4 7 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

nobility which had grown rich from such occasional trade. Others started 
as tradesmen who having acquired landed property were seeking to climb 
into the families of the nobility. To the category of the commercial 
patriciate there were added, as the financing of public administration 
developed, the political capitalists whose primary business was to meet 
the financial needs of the state as purveyors and by supplying govern- 
mental credit, together with the financiers of colonial capitalism, an en- 
- terprise that has existed in all periods of history. None of these strata 
has ever been the primary carrier of an ethical or salvation religion. At 
any rate, the more privileged the position of the commercial class, the 
less it has evinced any inclination to develop an other-worldly religion. 
The religion of the noble plutocratic class in the Phoenician trading 
cities was entirely this-worldly in orientation and, so far as is known, en- 
tirely non-prophetic. Yet the intensity of their religious mood and their 
fear of the gods, who were envisaged as possessing very sinister traits, 
were very impressive. On the other hand, the warlike maritime nobility 
of ancient Greece, which was partly piratical and partly commercial, has 
left behind in the Odyssey a religious document congruent with its own 
interests, which betrays a striking lack of respect for the gods. The god 
of wealth in Chinese Taoism, who is universally respected by merchants, 
shows no ethical traits; he is of a purely magical character. So, too, the 
cult of the Greek god of wealth, Pluto — indeed primarily of agrarian 
character — formed a part of the Eleusinian mysteries, which set up 
no ethical demands apart from ritual purity and freedom from blood 
guilt. Augustus, in a characteristic political maneuver, sought to turn 
the stratum of freedmen, with their strong capital resources, into special 
carriers of the cult of Caesar by creating the dignity of the Augustolis.* 
But this stratum showed no distinctive religious tendencies otherwise. 

In India, that section of the commercial stratum which followed the 
Hindu religion, particularly all the banking groups which derived from 
the ancient state capitalist financiers and large-scale traders, belonged 
for the most part to the sect of the ValUbhdchSris. These were adher- 
ents of the Vishnu priesthood of Gokulastha Gosain, as reformed by 
Vallabha Svami. They followed a form of erotically tinged worship of 
Krishna and Radha in which the cultic meal in honor of their savior 
was transformed into a kind of elegant repast. In medieval Europe, the 
great business organizations of the Guelph cities, like the Arte di 
Calimala, were of course papist in their politics, but very often they 
virtually annulled the ecclesiastical prohibition against usury by fairly 
mechanical devices which not infrequently created an effect of mock- 
ery. In Protestant Holland, the great and distinguished lords of trade, 



v ] Religious Propensities of Various Status Groups 479 

being Arminians in religion, were characteristically oriented to Real- 
folitikf and became the chief foes of Calvinist ethical rigor. Everywhere, 
skepticism or indifference to religion are and have been the widely 
diffused attitudes of large-scale traders and financiers. 

But as against these easily understandable phenomena, the acqui- 
sition of new capital or, more correctly, capital continuously and ration- 
ally employed in a productive enterprise for the acquisition of profit, 
especially in industry (which is the characteristically modern employ- 
ment of capital), has in the past been combined frequently and in a 
striking manner with a rational, ethical congregational religion among 
the classes in question. In the business life of India there was even a 
(geographical) differentiation between the Parsees and the Jain sect. 
The former, adherents of the religion of Zoroaster, retained their ethical 
rigorism, particularly its unconditional injunction regarding truthfulness, 
even after modernization had caused a reinterpretation of the ritualistic 
commandments of purity as hygienic prescriptions. The economic 
morality of the Parsees originally recognized only agriculture as accept- 
' able to God, and abominated all urban acquisitive pursuits. On the other 
hand, the sect of the Jains, the most ascetic of the religions of India, 
along with the aforementioned Vallabhacharis represented a salvation 
doctrine that was constituted as congregational religion, despite the anti- 
rational character of the cults. It is difficult to prove that very frequently 
the Islamic merchants adhered to the dervish religion, but it is not 
unlikely. As for Judaism, the ethical rational religion of the Jewish com- 
munity was already in Antiquity largely a religion of traders or finan- 
ciers. 

To a lesser but still notable degree, the religion of the medieval 
Christian congregation, particularly of the sectarian type or of the 
heretical circles was, if not a religion appropriate to traders, nonetheless 
"bourgeois" religion, and that in direct proportion to its ethical rational- 
ism. The closest connection between ethical religion and rational eco- 
nomic development — particularly capitalism — was effected by all the 
forms of ascetic Protestantism and sectarianism in both Western and 
Eastern Europe, viz., Zwinglians, Calvinists, Baptists, Mennonites, 
Quakers, Methodists, and Pietists (both of the Reformed and, to a lesser 
degree, Lutheran varieties); as well as by Russian schismatic, heretical, 
and rational pietistic sects, especially the Shtundists and Skoptsy, though 
in very different forms/ Indeed, generally speaking, the inclination to 
join an ethical, rational, congregational religion becomes more strongly 
marked the farther away one gets from those strata which have been the 
carriers of the type of capitalism which is primarily political in orienta- 



480 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) f Ch. VI 

j 

tion. Since the time of Hammurabi political capitalism has existed j 

wherever there has been tax farming, the profitable provisions of the J 

state's political needs, war, piracy, large-scale usury, and colonization. j 

The tendency toward affiliation with an ethical, rational, congregational . J 

religion is more apt to be found the closer one gets to those strata which 
have been the carriers of the modem rational enterprise, i.e., strata with 
middle-class economic characteristics in the sense to be expounded later. 
Obviously, the mere existence of capitalism of some sort is not 
sufficient, by any means, to produce a uniform ethic, not to speak of an 
ethical congregational religion. Indeed, it does not automatically produce 
any uniform consequences. For the time being, no analysis will be made , 
of the kind of causal relationship subsisting between a rational religious 
ethic an j a particular type of commercial rationalism, where such a 
connection exists at all. At this point, we desire only to establish the 
existence of an affinity between economic rationalism and certain types 
of rigoristic ethical religion, to be discussed later. This affinity comes to 
light only occasionally outside the Occident, which is the distinctive seat 
of economic rationalism. In the West, this phenomenon is very clear 
and its manifestations are the more impressive as we approach the 
classical bearers of economic rationalism. 



NOTES 

1. The present and the following two sections constitute a single section 
in the German edition entitled "Status Groups, Classes and Religion" 

2. Cf. Norma n Cohn, The Pursuit of the Millennium (New York: Oxford 
University Press, 1957), esp. ch. X. 

3. See Adolf Hamack, Die Mission und Ausbreitung des Christentums in 
den ersten drei Jahrhunderten (Leipzig: Hinrich, 1902), Part IV, esp, 539. 

4. Coge intrare or compelle intrare, "to force (them) to join": the principle 
that justifies the use of force against heretics, or deceitful proselytizing; derived 
from a misinterpreted passage in Luc. 14:23. Cf. Soc. of Law, ch. VIII :v, n. 26. 

5. I could make the observation that at the first appearance of von Bgidy 
(Lieutenant-Colonel, Ret.) the Officers' Clubs entertained the expectation, inas- 
much as the right of such criticism of orthodoxy was obviously open to any com- 
rade, that His Majesty would seize the initiative in demanding that the old fairy 
tales, which no honest fellow could manage to believe, would not be served up at 
the military services any longer. But, naturally enough, when no such thing hap- 
pened it was readily recognized that the church doctrine, just as it was, consti- 
tuted the best fodder for the recruits. (Weber's note. Lt.-Col. Moritz von Egidy was 
cashiered in 1 890 after publication of an attack on dogmatic Christianity. Cr. also 
Weber's contemporary observations in Jugendbriefe, 334-37.) 

6. On the honor of the seviri Augustales, see below, ch. XVI:v, n. 29. 

7. Cf. Karl Konrad Grass, Die russischen Sekten (2 vols., Leipzig; Hinrichs, 
1907-14), I, 524?. (on a Shtundo-Baptist group); II, passim (on the Skoptsy). 
Gf. also A. Leroy-Beaulieu, The Empire of the Tsars (London ^98), passim. 



vi ] The Religion of Non-Privileged Strata 4 8 1 

1 \ 

vi 
The Religion of Non-Privileged Strata 



1 . The Craftsmen's Inclination Toward Congregational 
and Salvation Religion 

When we move away from the strata characterized by a high degree 
of social and economic privilege, we encounter an apparent increase in 
the diversity of religious attitudes. 

Within the petty-bourgeoisie, and particularly among the artisans, 
the greatest contrasts have existed side by side. These have included 
caste taboos and magical or mystagogic religions of both the sacramental 
and orgiastic types in India,' animism in China, dervish religion in 
'Islam, and the pneumatic-enthusiastic congregational religion or early 
Christianity, practiced particularly in the eastern half of the Roman 
Empire. Still other modes of religious expression among these groups are 
deisidaimonia as well as orgiastic worship of Dionysos in ancient Greece, 
Pharisaic fidelity to the law in ancient urban Judaism, an essentially 
idolatrous Christianity as well as all sorts of sectarian faiths in the Middle 
Ages, and various types of Protestantism in early modern times. These 
diverse phenomena obviously present the greatest possible contrasts to 
one another. 

From the time of its inception, ancient Christianity was charac- 
teristically a religion of artisans. Its savior was a small-town artisan, and 
his missionaries were wandering journeymen, the greatest of them a 
wandering tent maker so alien to farmwork that in his epistles he actually 
employs in a reverse sense a metaphor relating to the process of grafting. 
The earliest communities of original Christianity were, as we have 
already seen, strongly urban throughout ancient times, and their adher- 
ents were recruited primarily from artisans, both slave and free. More- 
over, in the Middle Ages the petty-bourgeoisie remained the most pious, 
if not always the most orthodox,- stratum of society. But in Christianity 
as in other religions, widely different currents' found a warm reception 
simultaneously within the petty-bourgeoisie. Thus, there were the 
ancient pneumatic prophecies which cast out demons, the uncondi- 
tionally orthodox (institutionally ecclesiastical) religiosity of the Middle 
Ages, and the monasticism of the mendicant type. In addition, there 
were certain types of medieval sectarian religiosity such as that of the 



482 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

Humiliati, 1 who were long suspected of heterodoxy, there were Baptist 
movements of all kinds, and there was the piety of the various Reformed 
churches, including the Lutheran. 

This is indeed a highly checkered diversification, which at least 
proves that a uniform determinism of religion by economic forces never 
existed among the artisans. Yet there is apparent, in contrast to the 
peasantry, a definite tendency towards congregational religion, towards 
religion of salvation, and finally towards rational ethical religion. But 
this contrast is far from implying any tmiform determinism. The absence 
of uniform determinism appears very clearly in the fact that the rural 
flatlands of Friesland provided the first localities for the popular dis- 
semination of the Baptist congregational religion in its fullest form, 
while it was the city of Miinster which became a primary site for the 
expression of its social revolutionary form. 

In the Occident particularly, the congregational type of religion has 
been intimately connected with the urban middle classes of both the upper 
and lower levels. This was a natural consequence of the relative reces- 
sion in the importance of blood groupings, particularly of the clan, 
within the occidental city. The urban dweller finds a substitute for blood 
groupings in both occupational organizations, which in the Occident as 
everywhere had a cultic significance, although no longer associated with 
taboos, and in freely created religious associations. But these religious 
relationships were not determined exclusively by the distinctive eco- 
nomic patterns of urban life. On the contrary, the causation might go 
the other way, as is readily apparent. Thus, in China the great impor- 
tance of the ancestral cult and clan exogamy resulted in keeping the 1 
individual city dweller in a close relationship with his clan and native 
village. In India the religious caste taboo rendered difficult the rise, or 
limited the importance, of any soteriological congregational religion in 
quasi-urban settlements, as well as in the country. We have seen that in 
both India and China these factors hindered the city from developing 
in the direction of a community much more than they hindered the 
village. 

Yet it is still true in theory that. the petty-bourgeoisie, by virtue of 
its distinctive pattern of economic life, inclines in the direction of a 
rational ethical religion, wherever conditions are present for the emer- 
gence of a such religion. When one compares the life of a petty- 
bourgeois, particularly the urban artisan or the small trader, with the 
life of the peasant, it is clear that the former has far less connection 
with nature. Consequently, dependence on magic for influencing the 
irrational forces of nature cannot play the same role for the urban 
dweller as for the fanner. At the same time, it is clear that the economic 



vi ] The Religion of Non-Privileged Strata 4 8 3 

foundation of the urban man's life has a far more rational character, 
viz., calculability and capacity for purposive manipulation. Furthermore, 
the artisan and in certain circumstances even the merchant lead 
economic existences which influence them to entertain the view that 
honesty is the best policy, that faithful work and the performance of 
obligations will find their reward and are "deserving" of tbeir just com- 
pensation. For these reasons, small traders and artisans are disposed to 
accept a rational world view incorporating an ethic of compensation. 
We shall see presently that this is the normal trend of thinking among 
all non-privileged classes. The peasants, on the other hand, are much 
more remote from this notion of compensation and do not acquire it 
until the magic in which they are immersed has been eliminated by 
other forces. By contrast, the artisan is very frequendy active in effecting 
the elimination of this very process of magic. It follows that the belief 
in ethical compensation is even more alien to warriors and to financial 
magnates who have economic interests in war and in the political mani- 
festations of power. These groups are the least accessible to the ethical 
and rational elements in any religion. 

The artisan is deeply immersed in magical encumbrances in the early 
stages of occupational differentiation. Every specialized "art" that is un- 
common and not widely disseminated is regarded as a magical charisma, 
either personal or, more generally, hereditary, the acquisition and main- 
tenance of which is guaranteed by magical means. Other elements of 
this early belief are that the bearers of this charisma are set off by taboos, 
occasionally of a totemic nature, from the community of ordinary people 
(peasants), and frequendy that they are to be excluded from the owner- 
ship of land. One final element of this early belief in the magical 
charisma of every specialized art must he mentioned here. Wherwer 
crafts had remained in the hands of ancient groups possessing raw 
materials, who had first offered their arts as intruders in the community 
and later offered their craftsmanship as individual strangers settled 
within the community, the belief in the magical nature of special arts 
condemned such groups to pariah status and stereotyped with magic 
their manipulations and their technology. But wherever this magical 
frame of reference has once been broken through (this happens 
most readily in newly settled cities), the effect of the transformation may 
be that the artisan will leam to think about his labor and the small 
trader will learn to think about his enterprise much more rationally than 
any peasant thinks. The craftsman in particular will have time and 
opportunity for reflection during his work in many instances, especially 
in occupations which are primarily of the indoor variety in our climate, 
for example, in the textile trades, which therefore are strongly infused 



484 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

with sectarian or religious trends. This is true to some extent even for 
the workers in modern factories with mechanized weaving, but very 
much more true for the weaver of the past. 

Wherever the attachment to purely magical or ritualistic views has 
been broken by prophets or reformers, there has hence been a tend- 
ency For artisans, craftsmen and petty-bourgeois to incline toward 
a (often primitively) rationalistic ethical and religious view of life. 
Furthermore, their very occupational specialization makes them the 
bearers of an integrated pattern of life of a distinctive kind. Yet there 
is certainly no uniform determination of religion by these general condi- 
tions in the life of artisans and petty-bourgeois groups. Thus the small 
businessmen of China, though thoroughly calculating, are not the 
carriers of a rational religion, nor, so far as we know, are the Chinese 
artisans. At best, they follow the Buddhist doctrine of karma, in addi- 
tion to magical notions. What is primary in their case is the absence of 
an ethically rationalized religion, and indeed this appears to have in- 
fluenced the limited rationalism of their technology. This strikes us 
again and again. The mere existence of artisans and petty-bourgeois 
groups has never sufficed to generate an ethical religiosity, even of the 
most general type. We have seen an example of this in India, where the 
caste taboo and the belief in metempsychosis influenced and stereotyped 
the ethics of the artisan class. Only a congregational religiosity, especially 
one of the rational and ethical type, could conceivably win followers 
easily, particularly among the urban petty-bourgeoisie, and then, given 
certain circumstances, exert a lasting influence on the pattern of life 
of these groups. This is what actually happened. 



z. The Religious Disinclinations of Slaves, Day Laborers 
and the Modern Proletariat 

Finally, the classes of the greatest economic disability, such as slaves 
and free day-laborers, have hitherto never been the bearers of a dis- 
tinctive type of religion. In the ancient Christian communities the slaves 
belonged to the petty-bourgeoisie in the cities. The Hellenistic slaves and 
the retinue of Narcissus mentioned in the Episde to the Romans (pre- 
sumably the infamous freedman of Emperor Claudius) were either 
relatively well-placed and independent domestic officials or service per- 
sonnel belonging to very wealthy men. But in the majority of instances 
they were independent craftsmen who paid tribute to their master and 
hoped to save enough from their earnings to effect their liberation, 



-n ] _ Ihe Religion of N on -Privileged Strata 4^5 

which was the case throughout Antiquity and in Russia in the nine- 
teenth century. In other cases they were well-situated slaves of the state. 

The religion of Mithra also included among its adherents numerous 
representatives of this group, according to the inscriptions. The Delphic 
Apolio (and presumably many another god) apparently functioned as a 
savings bank for slaves, attractive because of its sacred inviolability, and 
the slaves bought freedom from their masters by the use of these savings. 
According to the appealing hypothesis of Deissmann," this was the image 
in Paul's mind in .speaking of the redemption of Christians through the 
blood of their savio^that they might be freed from enslavement by the 
law and by sm. If this be true (and of course the Old Testament terms 
for redemption, g^al and -pada, must also be regarded as a possible source 
of the Christian concepts), it shows how much the missionizing effort of 
earliest Christianity counted upon the aspiring unfree petty-bourgeois 
group which followed an economically rational pattern of life. On the 
other hand, the "talking inventory" of the ancient plantation, the lowest 
stratum of the sluve class, was not the bearer of any congregational reli- 
gion, or for that matter a fertile site for any sort of religious mission. 

Handicraft journeymen have at all times tended to share the char- 
acteristic religion of the petty- bourgeois classes, since they are normally 
distinguished from them only by the fact that they must wait a certain 
nine before they can set up their own shop. However, they evinced 
even more of an inclination toward various forms of unofficial religion 
of the sect type, which found particularly fertile soil among the lower 
occupational strata of the city, in view of their workaday deprivations, 
the fluctuations in the price of their daily bread, their job insecurity, and 
their dependence on fraternal assistance. Furthermore, the small artisans 
and craft apprentices were generally represented in the numerous secret 
or half-tolerated communities of "poor folk" that espoused congrega- 
tional religions, which were by turn revolutionary, pacifistic-communistic 
and ethical- rational, chiefly for the technical reason that wandering 
handicraft apprentices are the available missionaries of every mass con- 
gregational religion. This process is illustrated in the extraordinarily 
rapid expansion of Christianity across the tremendous area from the 
Orient to Rome in just a few decades. 

Insofar as the modern proletariat has a distinctive religious position, 
it is characterized by indifference to or rejection of religion, as are broad 
strata of the modern bourgeoisie. For the modem proletariat, the sense 
of dependence on one's own achievements is supplanted by a conscious- 
ness of dependence on purely social factors, market conditions, and 
power relationships guaranteed by law. Any thought of dependence 
upon the course of natural or meteorological processes, or upon anything 



486 RELICIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ck. VI 

that might be regarded as subject to the influence of magic or provi- 
dence, has been completely eliminated, as Sombart has already dem- 
onstrated in fine fashion. 3 Therefore, the rationalism of the proletariat, 
like that of the bourgeoisie of developed capitalism when it has come 
'Vteo the full possession of economic power, of which indeed the prole- 
tariat's rationalism is a complementary phenomenon, cannot in the 
nature of the case easily possess a religious character and certainly can- 
not easily generate a religion. Hence, in the sphere of proletarian ration- 
alism, religion is generally supplanted by other ideological surrogates. 

The lowest and the most economically unstable strata of the prole- 
tariat, for whom rational conceptions are the least congenial, and also 
the proletaroid or permanently impoverished petty-bourgeois groups who 
are in constant danger of sinking into the proletarian class, are never- 
theless readily susceptible to being influenced by religious missionary 
enterprise. But this religious propaganda has in such cases a distinctively 
magical form or, where real magic has been eliminated, it has certain 
characteristics which are substitutes for the magical-orgiastic superven- 
tion of grace. Examples of these are the soteriological orgies of the 
Methodist type, such as are engaged in by the Salvation Army. Un- 
doubtedly, it is far easier for emotional rather than rational elements of 
a religious ethic to flourish in such circumstances. In any case, ethical 
religion scarcely ever arises primarily in this group. 

Only in a limited sense is there a distinctive class religion of dis- 
. privileged social groups. Inasmuch as the substantive demands for social 
and political reform in any religion are based on god's will, we shall 
have to devote a brief discussion to this problem when we discuss ethics 
and natural law. But insofar as cur concern is with the character of the 
religion as such, it is immediately evident that a need for salvation in 
the widest sense of the term has as one of its foci, but not the exclusive 
or primary one, as we shall see later, disprivileged classes. Turning to 
the "sated" and privileged strata, the need for salvation is remote and 
alien to warriors, bureaucrats, and the plutocracy. 



3. The Devolution of Salvation Religion From Privileged 
to Non-Privileged Strata 

A religion of salvation may very well have its origin within socially 
privileged groups. For the charisma of the prophet is not confined to 
membership in any particular class; and furthermore, it is normally as- 
sociated with a certain minimum of intellectual cultivation. Proof for 



vi ] The Religion of Non-Privileged Strata 487 

both of these assertions is readily available in the various characteristic 
prophecies of intellectuals. But as a rule, salvation religion changes its 
character as soon as it has reached lay groups who are not particularly 
or professionally concerned with the cultivation of intellectual! sm, and 
certainly changes its character after it has reached into the disprivileged 
social strata to whom intellectualism is both economically and socially 
inaccessible. One characteristic element of this transformation, a product 
of the inevitable accommodation to the needs of the masses, may be 
formulated generally as the emergence of a personal, divine or human- 
divine savior as the bearer of salvation, with the additional consequence 
that the religious relationship to this personage becomes the precondi- 
tion of salvation. 

We have already seen that one form of the adaptation of religion to 
the needs of the masses is the transformation of otitic religion into mere 
wizardry. A second typical form of adaptation is the shift into savior 
religion, which is naturally related to the aforementioned change into 
magic by the most numerous transitional stages. The lower the social 
1 class, the more radical are th^e forms assumed by the need for a savior, 
once this need has emerged. Hinduism provides an example of this in 
the Kartabhajas, a Vishnuite sect that took seriously the breakup of the 
caste taboo which in theory it shares with many salvation sects. Mem- 
bers of this sect arranged for a limited commensality of their members 
on private as well as on cultic occasions, but for that reason they were 
essentially a sect of common people. They carried the anthropolatric 
veneration of their hereditary guru to such a point that the cult became 
extremely exclusive. Similar phenomena can be found elsewhere among 
religions which recruited followers from the lower social strata or at least 
were influenced by them. The transfer of salvation doctrines to the 
masses practically always results in the emergence of a savior, or at least 
in an increase of emphasis upon the concept of a savior. One instance of 
this is the substitution for the Buddha ideal, viz., the ideal of exemplary 
intellectualist -salvation into Nirvana by the ideal of a Bodhisattva, i.e., 
a savior who has descended upon earth and has foregone his own 
entrance into Nirvana for the sake of saving his fellow men. Another 
example is the rise in Hindu folk religion, particularly in Vishnuism, of 
salvation grace mediated .by an incarnate god, and the victory of this 
soteriology and its magical sacramental grace over both the noble, 
atheistic salvation of the Buddhists and the ritualism associated with 
Vedic eduction. There are other manifestations of this process, some- 
what different in form, in various religions. 

The religious need of the middle and lower bourgeoisie expresses 
itself less in the form of heroic myths than in rather more sentimental 



488 REL7GIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

legend, which has a tendency toward inwardness and edification. This 
corresponds to the peaceableness and the greater emphasis upon domes- 
tic and family life of the middle classes, in contrast to the ruling strata. 
This middle-class transformation of religion in the direction of domes- 
ticity is illustrated by the emergence of the god-suffused bhakti piety* 
in all Hindu cults, both in the creation of the Bodhisattva figure as well 
as in the cults of Krishna; and by the popularity of the edifying myths 
of the child Dioriysos, Osiris, the Christ child, and their numerous 
parallels. The emergence of the bourgeoisie as a power which lielped 
shape religion under the influence of mendicant monks resulted in the 
supplanting of the aristocratic theotokos of Nicola Pisano's imperialistic 
art by his son's genre depiction of the holy family, just as the Krishna 
child is the darjing of popular art in India. 5 

The soteriological myth with its god who has assumed human form 
or its savior who has been deified is, like magic, a characteristic concept 
of popular religion, and hence one *hat has arisen quite spontaneously 
in very different places. On the other hand, the notion of an impersonal 
and ethical cosmic order that transcends the deity and the ideal of an 
exemplary type of salvation are intellectualistic conceptions which are 
definitely alien to the masses and possible only for a laity that has been 
educated along ethically rational lines. The same holds true for the 
development of a concept of an absolutely transcendant god. With the 
exception of Judaism and Protestantism, all religions and religious ethics 
have had to reintroduce cults of saints, heroes or functional gods in 
order to accommodate themselves to the needs of the masses. Thus 
Confucianism permitted such cults, in the form of the Taoist pantheon, 
to continue their existence by its side. Similarly, as popularized Bud- 
dhism spread to many lands, it allowed the various gods of these lands to 
live on as recipients of the Buddhist cult, subordinated to the Buddha. 
Finally, Islam and Catholicism were compelled to accept local, func- 
tional, and occupational gods as saints, the veneration of which consti- 
tuted the real religion of the masses in everyday life. 



4. The Religious Equality of Women Among 
Disprivileged Strata 

The religion of the disprivileged strata, in contrast to the aristocratic 
cults of the martial nobles, is characterized by a tendency to allot 
equality to women. There is a great diversity in the scope of the religious 
participation permitted to women, but the greater or lesser, active or 
passive participation (or exclusion) of women from the religious cults is 
everywhere a function of the degree of the group's relative pacification 



vi ] The Religion of Non-Privileged Strata 489 

or militarization (present or past). But the presence of priestesses, the 
prestige of female soothsayers or witches, and the most extreme devotion 
to individual women to whom supernatural powers and charisma may 
be attributed does not by any means imply that women have equal 
privileges in the cult. Conversely, equalization of the sexes in principle, 
i.e, in relationship to god, as it is found in Christianity and Judaism 
and, less consistently, in Islam and official Buddhism, may coexist with 
the most complete monopolization by men of the priestly functions and 
of the right to active participation in community affairs; men only are 
admitted to special professional training or assumed to possess the neces- 
sary qualifications. This is the actual situation in the religions to which 
reference has just been made. 

The great receptivity of women to all religious prophecy except that 
which is exclusively military or political in orientation comes to very 
clear expression in the completely unbiased relationships with women 
maintained by practically all prophets, the Buddha as well as Christ and 
Pythagoras. But only in very rare cases does this practice continue 
beyond the first stage of a religious community's formation, when thu 
pneumatic manifestations of charisma are valued as hallmarks of specif- 
ically religious exaltation. Thereafter, as routinization and regimentation 
of community relationships set in, a reaction takes place against pneu- 
matic manifestations among women, which come to be regarded as 
irregular and morbid. In Christianity this appears already with Paul. 

It is certainly true that every political and military type of prophecy 
— such as Islam — is directed exclusively to m?n. Indeed, the cult of a 
warlike spirit is frequently put into the direct service of controlling 
and lawfully plundering the households of women by the male inhabi- 
tants of the warrior house, who are organized into a sort of club. (This 
happens among the Duk-duk in the Indian archipelago and elsewhere 
in many similar periodic epiphanies of a heroic numen). Wherever an 
ascetic training of warriors involving the rebirth of the hero is or has 
been dominant, woman is regarded as lacking a higher heroic soul and 
is consequently assigned a secondary religious status. This obtains in 
most aristocratic or distinctively militaristic cultic communities. 

Women are completely excluded from the official Chinese cults as 
well as from those of the Romans and Brahmins; nor is the religion 
of the Buddhist intellectuals feministic. Indeed, even .Christian synods 
as late as the period of the Merovingians expressed doubts regarding the 
equality of the souls of women. On the other hand, in ihe Orient the 
characteristic cults of Hinduism and one segment of the Buddhist- 
Taoist sects in China, and in the Occident notably pristine Christianity 
but also later the pneumatic and pacifist sects of Eastern and Western 
Europe, derived a great deal of their missionizing power from the cir- 



49° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

cumstance that they attracted women and gave them equal status. In 
Greece, too, the cult of Dionysos at its first appearance gave to the 
women who participated in its orgies an unusual degree of emancipation 
from conventions. This freedom subsequently became more and more 
stylized and regulated, both artistically and ceremonially; its scope was 
thereby limited, particularly to the processions and other festive activities 
of the various cults. Ultimately, therefore, this freedom lost all practical 
importance. 

What gave Christianity its extraordinary superiority, as it conducted 
its missionary enterprises among the petty-bourgeois strata, over its most 
important competitor, the religion of Mithra, was that this extremely 
masculine cult excluded women. The result during a period of universal 
peace was that the adherents of Mithra had to seek out for their women 
a substitute in other mysteries, e.g., those of Cybele. This had the effect 
of destroying, even within single families, the unity and universality of 
the religious community, thereby providing a striking contrast to Chris- 
tianity. A similar result was to be noted in all the genuinely intel- 
Iectualist cults of the Gnostic, Manichean, and comparable types, though 
this need not necessarily have been the case in theory. 

It is by no means true that all religions teaching brotherly love and 
love for one's enemy achieved power through the influence of women 
or through the feminist character of the religion; this has certainly not 
been true for the Indian ahimsd-ieligiosity. The influence of women 
only tended to intensify those aspects of the religion that were emotional 
or hysterical. Such was the case in India. But it is certainly not a matter ' 
of indifference that salvation religions tended to glorify the non-military 
and even anti-military virtues, which must have been quite close to the 
interests of disprivileged classes and of women. 



5. The Differential Function of Salvation Religion for 
Higher and Lower Strata: Legitimation versus 
Compensation 

The specific importance of salvation religion for politically and 
economically disprivileged social groups, in contrast to privileged groups, 
may be viewed from an even more comprehensive perspective. In our 
discussion of status groups and classes [IX:6] we shall have a good deal 
to say about the sense of honor or superiority characteristic of the non- 
priestly classes that claimed the highest social privileges, particularly the 
nobility. Their sense of self-esteem rests on their awareness that^ the per- 
fection of their life pattern is an expression of their underived, ultimate, 



vi ] The Religion of Non-Privileged Strata 4 9 1 

and qualitatively distinctive being indeed, it is in the very nature of the 
case that this should be the basis of their feeling of worth. On the other 
hand, the sense of honor of disprivileged classes rests on some guaran- 
teed promise for the future which implies the assignment of some func- 
tion, mission, or vocation to them. What they cannot claim to be, they 
replace by the worth of that which they will one day become, to which 
they will be called in some future life here or hereafter; or replace, very 
often concomitantly with the motivation just discussed, by their sense 
of what they signify and achieve in the world as seen from the point of 
view of providence. Their hunger for a worthiness that has not fallen to 
their lot, they and the world being what it is, produces this conception 
from which is derived the rationalistic idea of a providence, a signif- 
icance in the eyes of some divine authority possessing a scale of values 
different from the one operating in the world of man. 

This psychological condition, when turned outward toward the other 
social strata, produces certain characteristic contrasts in what religion 
must provide for the various social strata. Since every need for salvation 
is an expression of some distress, social or economic oppression is an 
effective source of salvation beliefs, though by no means the exclusive 
source. Other things being equal, strata with high social and economic 
privilege will scarcely be prone to evolve the idea of salvation. Rather, 
they assign to religion the primary function of legitimizing their own 
life pattern and situation in the world. This universal phenomenon is 
rooted iri certain basic psychological patterns. When a man who is 
happy compares his position with that of one who is unhappy, he is not 
content with the fact of his happiness, but desires something more, 
namely the right to this happiness, the consciousness that he has earned 
his good fortune, in contrast to the unfortunate one who must equally 
have earned his misfortune. Our everyday experience proves that there 
exists just such a need for psychic comfort about the legitimacy or de- 
servedness of ones happiness, whether this involves political success, 
superior economic status, bodily health, success in the game of love, or 
anything else. What the privileged classes require of religion, if anything 
at all, is this legitimation. 

To be sure, not every class with high- privilege feels this need in the 
same degree. It is noteworthy that martial heroes in particular tend to 
regard the gods as beings to whom envy is not unknown. Solon shared 
with ancient Jewish wisdom the same belief in the danger of high posi- 
tion. The hero maintains his superior position in spite of the gods and 
not because of them, and indeed he often does this against their wishes. 
Such an attitude is evinced in the Homeric and some of the Hindu 
epics, in contrast to the bureaucratic chronicles of China and the priestly 
chronicles of Israel, which express a far stronger concern for the legiti- 



49 2 RELIGIOUS GROUPS (SOCIOLOGY OF KELIGIOn) [Ch. VI 

macy of happiness as the deity's reward for some virtuous human action 
pleasing to him. 

On the other hand, one finds almost universally that unhappiness 
is brought into relation with the wrath or envy of either demons or gods. 
Practically every popular religion, including the ancient Hebrew, and 
particularly the modern Chinese, regards physical infirmity as a sign of 
magico-ritual or ethical sinfulness on the part of the unfortunate one, or 
(as in Judaism) of his ancestors. Accordingly, in these traditions a person 
visited by adversity is prohibited from appearing at the communal sacri- 
fices of the political association because he is freighted with the wrath of 
the deity and must not enter in the circle of fortunate ones who are 
pleasing to him. In practically every ethical religion found among 
privileged classes and the priests who serve them, the privileged or dis- 
privileged social position of the individual is regarded as somehow 
merited from the religious point of view. What varies is only the form 
by which good fortune is legitimized. 

Correspondingly different is the situation of the disprivilegcd. Their 
particular need is for release from suffering. They do not always ex-, 
perience this need for salvation in a religious form, as shown by the 
example of the modern proletariat. Furthermore, their need for religious 
salvation, where it exists, mav assume diverse forms. Most important, it 
mav be conjoined with a need for just compensation, envisaged in 
various wavs but always involving reward for one's own good deeds and 
punishment for the unrighteousness of others. This hope for* and ex- 
pectation of just compensation, a fairly calculating attitude, is, next to 
magic (indeed, not unconnected with it), the most widclv diffused form 
of mass religion all over the world. Even religious prophecies, which 
rejected the more mechanical forms of this belief, tended as they under- 
went popularization and routmi7_ation to slip hack into these expectations 
of comnensation. The type and scope of these hopes for compensation 
and salvation varied greatlv depending on the expectations aroused by 
the religious promises, especially when these hopes were projected from 
the earthly existence of the individual into a future life. 



6. Pariah People and Ressentiment: Judaism versus 
Hinduism 

Judaism, in both its exilic and post-exilic forms, provides a particu- 
larly important illustration of the significance of the content of religious 
promises. Since the Exile, as a matter of actual fact, and formally since 
the destruction of the Temple, the Jews became a pariah people in the 



vi ] The Religion of Non-Privileged Strata 4 9 3 

particular sense presently to be defined. (The sense in which the Jews 
are a "pariah" people has as little to do with the particular situation of 
the pariah caste in India as, for example, the concept of "Kadi-justice" 
has to do with the actual legal principles whereby the kadi renders legal 
decisions.) In our usage, "pariah people" denotes a distinctive hereditary 
social group lacking autonomous political organization and characterized 
by internal/prohibitions against commensality and intermarriage orig- 
inally founded upon magical, tabooistic, and ritual injunctions. TwO 
additional traits of -a pariah people are political and social disprivilege 
and a far-reaching distinctiveness in economic functioning. To be sure, 
the pariah people of India, the disprivileged and occupationally spe- 
cialized Hindu castes, resemble the Jews in these respects, since their 
pariah status also involves segregation from the outer world as a result 
of taboos, hereditary religious obligations in the conduct of life, and the 
association of salvation hopes with their pariah status. These Hindu 
castes and Judaism show the same characteristic effects of a pariah re- 
ligion: the more depressed the position in which the members of the 
pariah people found themselves, the more closely did the religion cause 
them to cling to one another and to their pariah position and the more 
powerful became the salvation hopes which were connected with the 
divinely ordained fulfillment of their religious obligations. As we have 
already mentioned, the lowest Hindu castes in particular clung to their 
caste duties with the greatest tenacity as a prerequisite for their rebirth 
into a better position. 

The tie between Yah web and his people became the more indis- 
soluble as murderous humiliation and persecution pressed down upon 
the Jews. In obvious contrast to the oriental Christians, who under the 
Umayyads streamed into the privileged religion of Islam in such num- 
bers that the political authorities had to make conversion difficult' for 
them in the interests of the privileged stratum, all the frequent mass con- 
versions of the Jews by force, which might have obtained for them the 
privileges of the ruling stratum, remained ineffectual. For both the Jews 
and the Hindu castes, the only means for the attainment of salvation 
was to fulfill the special religious commandments enjoined upon the 
pariah people, from which none might ivithdraw himself without in- 
curring the fear of evil magic or endangering the chances of rebirth for 
himself or his descendants. The difference between Judaism and Hindu 
caste religion is based on the type of salvation hopes entertained. From 
the fulfillment of the religious obligations incumbent upon him the 
Hindu expected an improvement in his personal chances of rebirth, i.e., 
the ascent or reincarnation of his soul into a higher caste. On the other 
hand, the Jew expected the participation of his descendants in a mes- 



4 9 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

f 

sianic kingdom which would redeem the entire pariah community from 
its inferior position and in fact raise it to a position of mastery in the 
world. For surely Yahweh, by his promise that all the nations of the 
world would borrow from the Jews but that they would borrow from 
none, had meant more than that the Jews would become small-time 
moneylenders in the ghetto, Yahweh instead intended to place them in 
the typical situation of citizens of a powerful city-state in Antiquity, 
who held as debtors and debt-slaves the inhabitants of nearby subject 
villages aryf "towns. The Jew wrought in behalf of his actual descend- 
ants,/whg, on the animistic interpretation, would constitute his earthly 
immortality* The Hindu also worked for a human being of the future, 
to whom, he was bound by a relationship only if the assumptions of the* 
animistic doctrine of transmigration were accepted, i.e., his future in- 
carnation. The Hindu's conception left unchanged for all time the caste 
stratification obtaining in this world and the position of his own caste 
within it; indeed, be sought to fit the future state of his own individual 
soul into this very gradation of ranks. In striking contrast, the Jew 
anticipated his own personal salvation through a revolution of the exist- 
ing social stratification to the advantage of his pariah people; his people 
had been chosen and called by God, not to a pariah position but to one 
of prestige. 

The factor of resentment (.ressen&ment), first noticed by Nietzsche, 8 
thus achieved importance in the Jewish ethical salvation religion, al- 
though it had been completely lacking in all magical and caste religions. 
. Resentment is a concomitant of that particular religious ethic of the 
disprivilegcd which, in the sense expounded by Nietzsche and in direct 
inversion of the ancient belief, teaches that the unequal distribution of 
mundane goods is caused by the sinfulness and the illegality of the 
privileged, and that sooner or later God's wrath will overtake them. In 
this theodicy of the disprivileged, the moralistic quest serves as a device 
for compensating a conscious or unconscious desire for vengeance. This 
is connected in its origin with the faith in compensation, since once a 
religious conception of compensation has arisen, suffering may take on 
the quality of the ^religiously meritorious, in view of the belief that it 
brings in its wake great hopes of future compensation. 

The development of a religious conception of resentment may be 
supported by ascetic doctrines on the one hand, or by characteristic 
neurone predispositions on the other. However, the religion of suffering 
acquires the specific character of ressentiment only under special cir- 
cumstances. Ressentiment is not found among the Hindus and Budd- 
hists, for whom personal suffering is individually merited. But the situa- 
tion is quite different among the Jews. 



vi ] - The Religion of Non-Privileged Strata 495 

The religion of the Psalms is full of the need for vengeance, and the 
same motif occurs in the priesdy reworkings of ancient Israelite tradi- 
tions. The majority of the Psalms are quite obviously replete with the 
moralistic legitimation and satisfaction of an op;n and hardly concealed 
need for vengeance on the part of a pariah people. (Some of these 
passages are admittedly later interpolation into earlier compositions, i,n 
which this sentiment was not originally present.) In the Psalms the 
quest for vengeance may take the form of remonstrating with God be- 
cause misfortune has overtaken the righteous individual, notwithstanding 
his obedience to God's commandments, whereas the godless conduct of 
the heathen, despite their mockery of God's predictions, commandments 
and authority, has brought them happiness and left them proud. The 
same quest for vengeance may express itself as a humble confession of 
one's own sinfulness, accompanied by a prayer to God to desist from his 
anger at long last and to turn his grace once again toward the people 
who ultimately are uniquely his own. In both modes of expression, the 
hope is entertained that ultimately the wrath of God will finally have 
been appeased and will turn itself to punishing the godless foes in double 
measure, making of them at some future day the footstool of Israel, just 
as the priestly historiography had assigned to the Canaanite enemies a 
similar fate. It was also hoped that this exalted condition would endure 
so long as Israel did not arouse God's anger by disobedience, thereby 
meriting subjugation at the hands of the heathen. It may be true, as 
modern -om me ma tors would have it, that some of these Psalms express 
the personal indignation of pious Pharisees over their persecution at the 
hands of Alexander Jannaeus. Nevertheless, a distinctive selection and 
preservation is evident; and in any case, other Psalms are quite obviously 
reactions to the distinctive pariah status of the Jews as a people. 

In no other religion in the world do we find a universal deity possess- 
ing the unparalleled desire for vengeance manifested by Yahweh. In- 
deed, an almost unfailing index of the historical value of the data pro- 
vided by the priestly reworking of history is that the event in question, 
as for example the battle of Megiddo, does not fit into this theodicy of 
compensation and vengeance. Thus, the Jewish religion became notably 
a religion of retribution. The virtues enjoined by God are practiced for 
the sake of the hoped for compensation. Moreover, this was originally a 
collective hope that the people as a whole would live to see that day of 
restoration, and that only in this way would the individual be able to 
regain his own worth. There developed concomitantly, intermingled 
with the aforementioned collective theodicy, an individual theodicy of 
personal destiny which had previously been taken for granted. The prob- 
lems of individual destiny are explored in the Book of Job, which was 



4 9 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

produced by quite different circles, i.e., the upper strata, and which 
culminates in a renunciation of any solution of the problem and a sub- 
mission to the absolute sovereignty of God over his creatures. This sub- 
mission was the precursor of the doctrine of predestination in Puritanism. 
The notion of predestination was bound to arise when the emotional 
dynamics of divinely ordained eternal punishment in hell was added to 
the complex of ideas just discussed, involving compensation and the 
absolute sovereignty of God. But the belief in predestination did not 
ar:;e among the Hebrews of that time. Among them, the conclusion of 
the Boole of Job remained almost completely misunderstood in the sense 
intended by its author, mainly, as is well known, because of the un- 
shakeable strength of the doctrine of collective compensation in the 
Jewish religion. 

In the mind of- the pious Jew the moralism of the law was inevitably 
combined with the aforementioned hope ror revenge, which suffused 
practically all the exilic and postexilic sacred scriptures. Moreover, 
through two and a half millennia this hope appeared in virtually every 
divine service of the Jewish people — a people indissolubly chained to 
religiously sanctified segregation from the other peoples of the world and 
divine promises relating to this world. From such a compensatory hope 
the Jews were bound to derive new strength, consciously or uncon- 
siously. Yet as the Messiah delayed his arrival, this hope receded in the 
religious thinking of the intellectuals in favor of the value of an inner 
awareness of God or a mildly emotional trust in God's goodness .is such, 
combined with a readiness for peace with all the world. This happened 
especially in periods during which the social condition of a community 
condemned to complete political isolation was tolerable. On the other 
hand, in epochs characterized by persecutions, like the period of the 
Crusades, the hope for retribution flamed up anew, either with a pene- 
trating but vain cry to God for revenge, or with a prayer that the soul 
of the Jew might become as dust before the enemy who had cursed him. 
In the latter case there was no recourse to evil words or deeds, but only 
a silent waiting for the fulfillment of God's commandments and the 
cultivation of the heart so that it would remain open to God. To interpret 
Tessentiment as the decisive element in Judaism would be an incredible 
aberration, in view of the many significant historical changes which 
Judaism has undergone. Nevertheless, we must not underestimate the 
influence of tessentiment upon even the basic characteristics of the 
Jewish religion. When one compares Judaism with other salvation reli- 
gions, one finds that in Judaism the doctrine of religious resentment has 
an idiosyncratic quality and plays a unique role not found among the 
disprivileged classes of any other religion. 



vi ] The Religion of Non-Privileged Strata 4 9 7 

A theodicy of disprivilege, in some form, is a component of every 
salvation religion which draws its adherents primarily from the dis- 
privileged classes, and the developing priesdy ethic accommodated to this 
theodicy wherever it was a component of congregational religion based 
on such groups. 

The absence of resentment, and also of virtually any kind of social 
revolutionary ethics among the pious Hindu and the Asiatic Buddhist 
can be explained by reference to their theodicy of rebirth, according to 
which the caste system itself is eternal and absolutely just. The virtues 
or sins of a former life determine birth into a particular caste, and one's 
behavior in the present life determines one's chances of improvement in 
the next rebirth. : hose living under this theodicy experienced no trace 
of the conflict experienced by the Jews between the social claims based 
on God's promises and the actual conditions of dishonor under which 
they lived. This conflict precluded any possibility of finding ease in this 
life for the Jews, who lived in continuous tension with their actual social 
position and in perpetually fruitless expectation and hope. The jews 
theodicy of disprivilege was greeted by the pitiless mockery of the godless 
heathen, but for the Jews the theodicy had the consequence of trans 
forming religious criticism of the godless heathen into ever-watchful con 
cern over their own fidelity to the law. This preoccupation was fre- 
quently tinged with bitterness and threatened by secret self-criticism. 

The Jew was naturally prone, as a result of his lifelong schooling, 
to casuistical meditation upon the religious obligations of his fellow Jews, 
on whose punctilious observance of religious law the whole people 
ultimately depended for Yah web's favor. There appeared that peculiar 
mixture of elements characteristic of post-exilic times which combined 
despair at finding any meaning in this world of vanity with submission 
to the chastisement of God, anxiety lest one sin against God through 
pride, and finally a fear-ridden punctiliousness in ritual and morals. All 
these conflicts forced upon the jew a desperate struggle, no longer for 
the respect of others, but for self-respect and a sense of personal worth. 
The struggle for a sense of personal worth must have become precarious 
again and again, threatening to wreck the whole meaning of the indivi- 
dual s pattern of life, since ultimately the fulfillment of God's promise was 
the only criterion of one's value before God at any given time. 

Success in his occupation actually became one tangible proof of 
God's personal favor for the Jew living in the ghetto. But the conception 
of self-fulfillment QBewahrung) in a calling (Berwf) pleasing to god, in 
the sense of inner-worldly asceticism (_innerweltlhhe Askese), is not 
applicable to the Jew. God's blessing was far less strongly anchored in 
a systematic, rational, methodical pattern of life for the Jew than for the 



498 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [ Ck. VI 

Puritan, for whom this was the only possible source of the certitude 
salutis. Just as the Jewish sexual ethic remained naturalistic and anti- 
ascetic, so also did the economic ethic of ancient Judaism remain strongly 
traditionalistic in its basic tenets. It was characterized by a frank respect 
for wealth, which is of course missing in any system of asceticism. In 
addition, the entire system of outward piety had a ritualistic foundation 
among the Jews, and what is more, it was considerably interfused with 
the distinctive emotional mood of the religion. We must note that the 
traditionalistic precepts of the Jewish economic ethics naturally applied 
in their full scope only to one's fellow religionists, not to outsiders, which 
was the case in every ancient ethical system. All in all, then, the belief 
in Yahweh's promises actually produced within the realm of Judaism 
itself a strong component of the morality of ressentiment. 

It would be completely erroneous to portray the need for salvation, 
theodicy, or congregational religion as something that developed only 
among disprivileged social strata or even only as a product of resentment, 
hence merely as the outcome of a "slave revolt in morality." This would 
not even be true of ancient Christianity, although it directed its promises 
most emphatically to the poor in spirit and in worldly goods. What 
results had to follow from the downgrading and rending asunder of the 
fabric of ritual laws (which had been purposefully composed to segregate 
the Jews from the outer world) and from the consequent dissolution of 
the link between religion and the caste-like position of the faithful as a 
pariah people, can be readily observed in the contrast between Jesus' 
prophecy and its immediate consequences. To be sure, the early Christian 
prophecy contained very definite elements of "retribution" doctrine, in 
the sense of the future equalization of human fates (most clearly ex- 
pressed in the legend of Lazarus) and of vengeance (which is shown to 
be God's responsibility). Moreover, here too the Kingdom of God is 
interpreted as an earthly kingdom, in the first instance apparently a realm 
set apart particularly or primarily for the Jews, for they from ancient 
times had believed in the true God. Yet, it is precisely the characteristic 
and penetrating ressenttment of the pariah people which is neutralized 
by the implications of the new religious proclamation. 

Not even Jesus' own warnings, according to the tradition, of the 
dangers presented by wealth to the attainment of salvation were moti- 
vated by asceticism. Certainly the motivation of his preaching against 
wealth was not resentment, for the tradition has preserved many evi- 
dences of Jesus' intercourse, not only with publicans (who in the 
Palestine of that period were mostly small-time usurers), but also with 
other well-to-do people. Furthermore, resentment cannot be regarded as 
the primary motivation of Jesus' doctrines regarding wealth,-in view of 



vi ] The Religion of Non-Privileged Strata 4 9 9 

the Gospels' impressive indifference to mundane affairs, an indifference 
based upon the power of eschatological expectations. To be sure, the rich 
young man was bidden unconditionally to take his leave of the world 
if he desired to be a perfect disciple. But it is stated that for God all 
things are possible, even the salvation of the wealthy [Matt, ig.-ziff]. 
The rich man who is unable to decide to part with his wealth may none- 
theless achieve salvation, despite the difficulties in the way. There were 
no "proletarian instincts" in the doctrine and teaching of Jesus, the 
prophet of acosmistic love who brought to the poor in spirit and to the 
good people of this world the happy tidings of the immediate coming 
of the Kingdom of God and of freedom from the domination of evil 
spirits. Similarly, any proletarian denunciation of wealth would have 
been equally alien to the Buddha, for whom the absolute precondition 
of salvation was unconditional withdrawal from the world. 

The limited significance of the factor of ressentiment, and the dubi- 
ousness of applying the conceptual schema of 'repression" almost uni- 
versally, appear most clearly when Nietzsche mistakenly applies his 
scheme to the altogether inappropriate example of Buddhism. Constitut- 
ing the most radical antithesis to every type of ressentiment morality, 
Buddhism clearly arose as the salvation doctrine of an intellectual stra- 
tum, originally recruited almost entirely from the privileged castes, 
especially the warrior caste, which proudly and aristocratically rejected 
the illusions nf life, both here and hereafter. Buddhism may be com- 
pared in social provenience to the salvation doctrines of the Greeks, 
particularly tha Meo-PIatonic, Manichean, and Gnostic manifestations, 
even though they are radically different in content. The Buddhist 
bhihshu does not begrudge the entire world, not even a rebirth into 
paradise, to the person who does not desire Nirvana. 

Precisely this example oi Buddhism demonstrates that the need for 
salvation and ethical religion has yet another source besides the social 
condition of the disprivileged and the rationalism of the bourgeoisie, 
which is shaped by its way of life This' additional factor is intellectual- 
ism as such, more particularly the metaphysical needs of the human 
mind as it is driven to reflect on ethical and religious questions, driven 
not by material need but by an inner compulsion to understand the 
world as a meaningful cosmos and to take up a position toward it. 



NOTES 

i. The Humiliati were bourgeois lay ascetics who were barely tolerated ^from 
their emergence in the nth century to their final suppression by the Counter- 
Reformation in the 16th century. 



JOO RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

2. Gustav Adolf Deissmann, Licht vom Osten (Tubingen: Mohr, 1908), 
a 3 4- 

3. See Werner Sombart, Das Proletariat (Frankfurt: Riitteri und Loening, 
1906), 7jff. and id., Sozialismus und soziale Bewegung, 1908, 6th ed., 25. (W) 

4. Cf. Weber, The Religion of India, 3o6ff. 

;. The tieotoJws is the regal Virgin; the term "imperialist" in the German 
text refers to the "proto-renaissanee" style of Nicola Pisano (c. 1225-c. 1278). 
On this point, and the bourgeois trends, see Albert Brach, Nicola und Giovanni 
Pistmo und die Plastik des XIV. Jahrhitnderts in Siena (Strassburg; Heitz, 1904). 
Around 1904 there was a dispute about the origins of Nicola Pisano's style; one 
thesis derived it from the Imperial studios of Emperor Frederick II in Southern Italy; 
cf. Georg Swarzenski, Nicoh Pisano (Frankfurt: Iris, 1926). The embourgeohe- 
ment can be observed in Pisa in the contrast between Nicola's pulpit in the Baptis- 
tery ( 1 259) and that made by Giovanni for the Duomo (13:1). ( Wi) 

6. On ressentiment and the "slave revolt in morality," see Friedrich Nietz- 
sche, Werke (Leipzig: Kroner, 1930), II, 38 and 98f- 



vu 

Intellectualism, Intellectuals, and 

Salvation Religion 



1 . Priests and Monks as Intellectualist Elaborators of 
Religion 

The destiny of religions has been influenced in a most compre- 
hensive way by inte]]ectualism and its various relationships to the priest- 
hood and political authorities. These relationships were in turn influ- 
enced by the provenience of the stratum which happened to be the 
most important carrier of the particular intellectualism. At first the priest- 
hood itself was the most important carrier of intellectualism, particularly 
wherever sacred scriptures existed, which would make it necessary for 
the priesthood to become a literary guild engaged in interpreting the 
scriptures and teaching their content, meaning, and proper application. 
But no such development took place in the religions of the ancient city- 
states, and notably not among the Phoenicians, Greeks, or Romans; nor 
was this phenomenon present in the ethics of China. In these instances 
the development of all metaphysical and ethical thought fell into the 
hands of non-priests, as did the development of theology, which de- 
veloped to only a very limited extent, e.g., in Hesiod. 

By contrast, the development of intellectualism by the priesthood, 



v'u ] - Intellectualism and Salvation Religion 5 o 1 

was true to the highest degree in India, in Egypt, in Babylonia, in Zoro- 
astrianism, in Islam, and in ancient and medieval Christianity. So far as 
theology is concerned, the development of intellectualism by the priest- 
hood has also taken place in modern Christianity. In the religions of 
Egypt, in Zoroastrianism, in some phases of ancient Christianity, and in 
Brahmanism during the age of the Vedas (i.e., before the rise of lay 
asceticism and the philosophy of the Upanish'ads) the priesthood suc- 
ceeded in largely monopolizing the development of religious metaphysics 
and ethics. Such a priestly monopoly was also present in Judaism and 
Islam. But in Judaism it was strongly reduced by the strong impact of 
lay prophecy, and in Islam the very impressive power of the priesthood 
was limited bv the challenge of Sufi, speculation. In all the branches 
of Buddhism and Islam, as well as in ancient and medieval Christianity, 
it was the monks or groups oriented to monasticism who, besides the 
priests or in their stead, concerned themselves with and wrote in all 
the areas of theological and ethical thought, as well as in metaphysics 
and* considerable segments of science. In addition, they also occupied 
themselves with the production of artistic literature. The cultic impor- 
tance of the singer played a role in bringing epic, lyrical and satirical 
poetry into the Vedas in India and the erotic poetry of Israel into the 
Bible; the psychological affinity of mystic and spiritual QpneumatiscK) 
emotion to poetic inspiration shaped the role of the mystic in the poetry 
of both the Orient and Occident. 

But here we are concerned, not with literary production, but rather 
the determination of the religion itself by the particular character of the 
intellectual strata who exerted a decisive influence upon it. The intel- 
lectual influence upon religion of the priesthood, even where it was the 
chief carrier of literature, was of quite varied scope, depending on which 
non -priestly strata opposed the priesthood and on the power position of 
the priesthood itself. The specifically ecclesiastical influence reached 
its strongest expression in late Zoroastrianism and in the religions of 
Egypt and Babylonia. Although Judaism of the Deuteronomic and exilic 
.periods was prophetic in essence, the priesthood exerted a marked forma- 
tive influence upon the developing religion. In later Judaism, however, 
ft was not the priest but the rabbi who exercised the decisive influence. 
Christianity was decisively influenced by the priesthood and by monas- 
ticism at the end of Antiquity and in the High Middle Ages, and then 
again in the period of the Counter-Reformation. Pastoral influences 
were dominant in Lutheranism and early Calvinism, Hinduism was 
formed and influenced to an extraordinary degree by the Brahmins, at 
least in its institutional and social components. This applies particularly 
to the caste system that arose wherever the Brahmins arrived, the social 



5 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Cfe. VI 

hierarchy of which was ultimately determined by the rank the Brahmins 
assigned to each particular caste. Buddhism in all its varieties, but par- 
ticularly Lamaism, has been thoroughly influenced by monasticism, which 
has to a lesser degree influenced large groups in oriental Christianity. 



2. High-Status Intellectuals as Religious Innovators 

Here we are particularly concerned with the relationship to the 
priesthood of the non-ecclesiastical lay intelligentsia other than the 
monks, and in addition, with the relation of the intellectual strata to the 
religious enterprise and their position within the religious community. 
We must at this point establish as a fact of fundamental importance that 
all the great religious doctrines of Asia are creations of intellectuals. The 
salvation doctrines of Buddhism and jainism, as well as all related 
doctrines, were carried by an intellectual elite that had undergone train- 
ing in the Vedas. This training, though not always of a strictly scholarly 
nature, was appropriate to the education of Hindu aristocrats, particu- 
larly members of the Kshatriya nobility, who stood in opposition to the 
Brahmins. In China the carriers of Confucianism, beginning with the 
founder himself and including Lao Tzu, who is officially regarded as 
the initiator of Taoism, were either officials who had received a classical 
literary education or philosophers with corresponding training. 

The religions of China and India display counterparts of practically 
all the theoretical variants of Greek philosophy, though frequently 
in modified form. Confucianism, as the official ethic of China, was 
entirely borne by a group of aspirants to official positions who had re- 
ceived a classical literary education, but it is true that Taoism became 
a popular enterprise of practical magic. The great reforms of Hinduism 
were accomplished by aristocratic intellectuals who had received a Brah- 
minic education, although subsequently the organization of communities 
frequendy fell into the hands of members of lower castes. Thus, the 
process of reform iri India took another direction from that of the Re- 
formation in Northern Europe, which was also led by educated men 
who had received professional clerical training, as well as from that of 
the Catholic Counter-Reformation, which at first found its chief sup- 
port from Jesuits trained in dialectic, like Salmeron and Laynez. The 
course of the reform movement in India differed also from the recon- 
struction of Islamic doctrine by al-Ghazali [a.d. i 058- 1 1 1 1 ] , which 
combined mysticism and orthodoxy, with leadership remaining pardy 
in the hands of the official hierarchy and partly in the hands of a newly 



vii ] Intellectualhm and Salvation Religion 503 

developed office nobility with theological training. So too, Manicheanism 
and Gnosticism, the salvation religions of the Near East, are both 
specifically religions of intellectuals. This is true of their founders, their 
chief carriers, and the character of their salvation doctrines as well. 

In all these cases, in spite of various differences among the religions 
in question, the intellectual strata were relatively high in the social scale 
and possessed philosophical training that corresponded to that of the 
Greek schools of philosophy or to the most learned types of monastic or 
secular humanistic training of the late medieval period. These groups 
were the bearers of the ethic or the salvation doctrine in each case. Thus 
intellectual strata might, within a given religious situation, constitute 
an academic enterprise comparable to that of the Platonic academy and 
the related schools of philosophy in Greece. In that case the intellectual 
strata, like those in Greece, would take no official position regarding 
existing religious practice. They often ignored or philosophically rein- 
terpreted the existing religious practice rather than directly withdrawing 
themselves from it. On their part, the official representatives of the cult, 
like the state officials charged with cultic responsibility in China or the 
Brahmins in India, tended to treat the doctrine of the intellectuals as 
either orthodox or heterodox, the latter in the cases of the materialistic 
doctrines of China and the dualist Sankhya philosophy of India. We 
cannot enter into any additional details here regarding these movements, 
which have a primarily academic orientation and are only indirectly 
related to practical religion. Our chief interest is rather in those other 
movements, previously mentioned, which are particularly concerned 
with the creation of a religious ethic. Our best examples in classical 
Antiquity are the Pythagoreans and Neo-PIatonists, These movements of 
intellectuals have uniformly arisen among socially privileged strata or 
have been led or decisively influenced by men from these groups. 



3. The Political Decline of Privileged Strata and the 1 

Escapism of Intellectuals 



The development of a strong salvation religion by socially privileged 
groups normally has the best chance when demilitarization has set in 
for these groups and when they have lost either the possibility of political 
activity or the interest in it. Consequently, salvation religions usually 
emerge when the ruling strata, noble or middle class, have lost their 
political power to a bureaucratic-militaristic unitary state. The with- 
drawal of the ruling strata from politics, for whatever reason, also favors 



il 



5 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

the development of a salvation religion. In such a case, the ruling strata 
come to consider their intellectual training in its ultimate intellectual and 
psychological consequences far more important for them than their 
practical participation in the external affairs of the mundane world. This 
does not mean that the salvation religions arise only at such times. On 
the contrary, the intellectual conceptions in question may sometimes 
arise without the stimulus of such anterior conditions, as a result of un- 
prejudiced reflection in periods of dynamic political or social change. 
But in that case such modes of thought tend to lead a kind of under- 
ground existence, normally becoming dominant only when the intel- 
lectuals have undergone depoliticization. 

Confucianism, the ethic of a powerful officialdom, rejected all doc- 
trines of salvation. On the other hand, Jainism and Buddhism, which 
provide radical antitheses to Confucianist accommodation to the world, 
were tangible expressions of an imeilectualist attitude that was utterly 
anti-political, pacifistic, and world-rejecting. We do not know, however, 
whether the sometimes considerable following of these two religions in 
India was increased by events of the times which tended to reduce pre- 
occupation with political matters. The pluralism of tiny states headed by 
minor Hindu princes before the time of Alexander, states lacking any 
sort of political dynamic in the face of the impressive unity of Brahman- 
ism (which was gradually forging to the front everywhere in India), 
was in itself enough to induce those groups of the nobility who had un- 
dergone intellectual training to seek fulfillment of their interests outside 
of politics. Therefore the scripturally enjoined world-renunciation of the 
Brahmin (as a vanctprastha — -forest dweller— who foregoes his portion 
in old age) and the popular veneration accorded to him resulted in the 
evolution of non-Brahminic ascetics (shramanas). It is possible of course 
that the actual development went in the other direction, so that the 
recommendation of world-renunciation to the Brahmin who "has seen 
the son of his son" is the later of the two phenomena, and a borrowing. 
In any case, the shmmanas, as the possessors of ascetic charisma, soon 
outstripped the official priesthood in popular esteem. This form of monas- 
tic apoliticism had been endemic among the nobles of India since very 
■early times, i.e., long before apolitical philosophical salvation doctrines 
arose. 

The Near Eastern salvation religions, whether of a mystagogic or 
prophetic type, as well as the oriental and Hellenistic salvation doctrines, 
whether of a more religious type or a more philosophical type of which 
lay intellectuals were the protagonists, were, insofar as they included the 
socially privileged strata at all, virtually without exception the conse- 



vii ] Intellectualism and Salvation Religion 505 

quence of the educated strata's enforced or voluntary loss of political 
influence and participation. In Babylonia the turn to salvation religion, 
intersected by components whose provenience was outside Babylonia, 
appeared first in Mandaeism. The religion of intellectuals in the Near 
East took this turn first through participation in the cult of Mithra and 
the cults of other saviors, and then through participation in the cults of 
Gnosticism and Manicheism, after all political interest had died off in 
the educated strata. In Greece there had always been salvation religion 
among the intellectual strata, even before the Pythagorean sect arose, 
but it did not dominate groups with decisive political power. The suc- 
cess of philosophical salvation doctrines and the propaganda of salvation 
cults among the lay elite during late Hellenic and Roman times parallels 
these groups' final turning aside from political participation. Indeed, the 
somewhat verbose "religious" interests of our German intellectuals of 
the present time are intimately connected with political frustrations that 
are responsible for their political indifference. 

( Quests for salvation which arise among privileged classes are gen- 
erally characterized by a disposition toward an "illumination" mysticism, 
to be analyzed later, which is associated with a distinctively intellectual 
qualification for salvation. This brings about a strong devaluation of the 
natural, sensual, and physical, as constituting, according to their psycho- 
logical experience, a temptation to deviate from this distinctive road to 
salvation. The exaggeration and fastidious refinement of sexuality, along 
with the simultaneous suppression of normal sexuality in favor of substi- 
tute abreactions, were determined by the life patterns of those who might 
be termed "nothing-but-intellectuals"; and these exaggerations and sup- 
pressions of sexuality occasionally played a role for which modern psy- 
ch opathology has not yet formulated uniformly applicable rules. These 
phenomena are strongly reminiscent of certain phenomena, especially 
in the Gnostic mysteries, which clearly appear to have been sublimated 
masturbatory surrogates for the orgies of the peasantry. These purely 
psychological preconditions of the process whereby religion is irration'al- 
ized are intersected by the natural rationalistic need of intellectualism 
to conceive the world as a meaningful cosmos. Some typical outcomes 
are the Hindu doctrine of karma (of which more will be said presently) 
and its Buddhist variant; the Book of Job among the Hebrews, which 
presumably originated in aristocratic intellectual groups; and the com- 
parable elements in Egyptian literature, in Gnostic speculation, and in 
Manichean dualism. 

Once a salvation doctrine and an ethic of intellectualist origin has 
become a mass religion, an esotericism or aristocratic status ethic arises 



5 O 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

that is adjusted to the needs of the intellectually trained groups. Mean- 
while, however, the religion has become transformed into a doctrine 
of a popular magical savior, thereby meeting the needs of the non- 
intellectual masses. Thus in China, alongside the Confucianist status 
ethic of the bureaucrats, who were completely uninterested in salvation, 
Taoist magic and Buddhist sacramental and ritual grace survived in a 
petrified form as the faith of the folk, though such beliefs were despised 
by those who had received a classical education. Similarly, the Buddhist 
salvation ethic of the monastic groups lived on alongside the magic and 
idolatry of the laity, the continued existence of tabooistic magic, and the 
new development of a savior religion within Hinduism. In Gnosticism 
and its related cults the intellectualist religion took the form of mys- 
tagogy, with a hierarchy of sanctifications which the unillummated were 
excluded from attaining. 

The salvation sought by the intellectual is always based on inner 
need, and hence it is at once more remote from life, more theoretical 
and more systematic than salvation from external distress, the quest for 
which is characteristic of nonprivileged strata. The intellectual seeks in 
various ways, the casuistry of which extends into infinity, to endow his 
life with a pervasive meaning, and thus to find unity with himself, with 
his fellow men, and with the cosmos. It is the intellectual who conceives 
of the "world" as a problem of meaning. As intellectualism suppresses 
belief in magic, the world's processes become disenchanted, lose their 
magical significance, and henceforth simply "are" ^nd "happen" but no 
longer signify anything. As a consequence, there is a growing demand 
that the world and the total pattern of life be subject to an order that 
is significant and meaningful. 

The conflict of this requirement of meaningfulness with the em- 
pirical realities of the world and its institutions, and with the possibilities 
of conducting one's life in the empirical world, are responsible for the 
intellectual's characteristic flight from the world. This may be an escape 
into absolute loneliness, or in its more modern form, e.g., in the case of 
Rousseau, to a nature unspoiled by human institutions. Again, it may be 
a world -fleeing romanticism like the flight to the "people." untouched by 
social conventions, characteristic of the Russian narodnichestvo. It 
may he more contemplative, or more actively ascetic; it may primarily 
seek individual salvation or collective revolutionary transformation of the 
world in the direction of a more ethical status. All these doctrines are 
equally appropriate to apolitical intellectualism and may appear as reli- 
gious doctrines of salvation, as on occasion they have actually appeared. 
The distinctive world-fleeing character of intellectualist religion also has 
one of its roots here. 



vii ] Intelleetualism and Salvation Religion 507 

4. The Religious Impact of Proletarian, Petty -Bourgeois 
and Pariah Intelleetualism 

Yet the philosophical intelleetualism of those classes that are usually 
well provided for socially and economically (particularly apolitical nobles 
or rentiers, official s T - and incumbents of benefices whether of churches, 
monastic establishments, institutions of higher learning, or the like) is 
by no means the only kind of intelleetualism, and frequently it is not the 
most important kind of intelleetualism for the development of religion. 
For there is also a quasi-proletarian (proletaroid) intelleetualism that is 
everywhere connected with aristocratic intelleetualism by transitional 
forms and differs from it only in the character of its distinctive attitude. 
Members of this class include people at the edge of the minimum stand- 
ard of living; smallofficials and incumbents of prebends, who generally 
are equipped with what is regarded as an inferior education; scribes, 
who were not members of privileged strata in periods when writing was 
a special vocation; elementary school teachers of all sorts; wandering 
poets; narrators; reciters; and practitioners of similar free proletaroid 
callings. Above all, we must include in this category the self-taught 
intelligentsia of the disprivileged ("negatively privileged") strata, of 
whom the classic examples are the Russian proletaroid peasant "intelli- 
gentsia in Eastern Europe, and the socialist-anarchist proletarian intel- 
ligentsia in the West. To this general category there might also be added 
groups of a far different background, such as the Dutch peasantry as 
late as the first half of the nineteenth century, who had an impressive 
knowledge of the Bible, the petty-bourgeois Puritans of seventeenth- 
century England, and the religiously interested journeymen of all times 
and peoples. Above all, there must be included the classical manifesta- 
tions of the Jewish laity, including the Pharisees, the Chassidim, and 
the mass of the pious Jews who daily studied the law. 

It may be noted that pariah intelleetualism, appearing among all 
proletaroid incumbents of small prebends, the Russian peasantry, and 
the more or less itinerant folk, derives its intensity from the fact that 
the groups which are at the lower end of, or altogether outside of, the 
social hierarchy stand to a certain extent on the point of Archimedes 
in relation to social conventions, both in respect to the external order and 
in respect to common opinions. Since these groups are not bound by the 
social conventions, they are capable of an original attitude toward the 
meaning of the cosmos; and since they are not impeded by any material 
considerations, they are capable of intense ethical and religious emotion. 
Insofar as they belonged to the middle classes, like the religiously self- 
taught petty-bourgeois groups, their religious needs tended to assume 



5 o 8 religious croups (sociology of religion) [ Ch. VI 

either an ethically rigorous or an occult form. The intellectualism of the 
journeyman stands midway between these [pariah and petty-bourgeois 
manifestations of intellectualism], and is significant because the itinerant 
journeyman is particularly qualified for missionizing. 

In Eastern Asia and India, so far as is known, pariah intellectualism 
is practically non-existent, as is petty -bourgeois intellectualism. The latter 
requires the communal feeling of an urban citizenry, but this is absent. 
Both also lack the emancipation from magic, which is a prerequisite for 
them. Indeed, even those forms of religion that emerged out of the lower 
castes take their Gathas from the Brahmins. In China as well, there is 
no independent, unofficial intellectualism apart from the Confucian 
education. Confucianism is the ethic of the "noble" man (i.e., the "gen- 
tleman," as Dvorak 1 has correctly translated the term). Confucianism 
is quite explicitly a status ethic, or more correctly, a systematization of 
rules of etiquette appropriate to a dignified stratum the members of 
which have undergone literary training. The situation was not different 
in the ancient Levant and Egypt, so far as is known. There the intel- 
lectualism of the scribes, insofar as it lead to ethical and religious re- 
flection, belonged entirely to the type of intellectualism which is some- 
times apolitical but always aristocratic and anti-plebeian. 



5. The Intellectualism of Higher- and Lower-Ranking 
Strata in Ancient Judaism 

In ancient Israel, the author of the Book of job assumed that upper- 
class groups are among the carriers of religious intellectualism. The Book 
of Proverbs and related works show traces in their very iorm of having 
been touched by the internationalization of the educated and apolitical 
higher strata resulting from iheir mutual contact with each other after 
Alexander's arrival in the East. Some of the dicta in Proverbs are directly 
attributed to a non -Jewish king, and in general the liturature stamped 
with the name of "Solomon" betrays marks of an international culture. 
Ben Sira's emphatic stress upon the wisdom of the fathers in opposition 
to Hellenization already demonstrates that there was a trend in this 
direction. Moreover, as Bousset- correctly pointed out, the "scribe" or 
"scriptural scholar" of that time who was learned in the law was, accord- 
ing to the Book of Ben Sira, a widely traveled and cultivated gentleman. 
There is throughout this book, as Meinhold has emphasized, a clearly 
expressed anti-plebeian line, quite comparable to that found among the 
Greeks: How can the peasant, the smith, or the potter have wisdom, 



vii ] Intellectualistn and Salvation Religion 5 ° 9 

which only leisure for reflection and dedication to study can produce? 3 
Ezra is designated as the "first scribe," yet far older was the influential 
position of the priests, ideologists with a pure religious interest who had 
swarmed about the prophets, and without whom the imposition of the 
Book of Deuteronomy would never have taken place. On the other hand, 
the dominant position of the scribes, that means, those who know 
Hebrew and can interpret the divine commands, and whose position 
is almost equivalent to the Islamic mufti, arises much later than that of 
Ezra, the official creator of the theocracy, who had received his powers 
from the Persian emperor. 

The social position of the scribes nevertheless underwent changes. 
At the time of the Maccabean commonwealth, piety — in essence a rather 
sober wisdom of life, as illustrated by the doctrine of xenophilia — was 
regarded as identical with education or "culture" (nniw, 'paicleis'); 
the latter was the key to virtue, which was regarded as teachable in 
the same sense as among the Greeks. Yet the pious intellectuals of even 
,that period, like the majority of the Psalmists, felt themselves to be in 
sharp opposition to the wealthy and proud, among whom fidelity to the 
law was uncommon, even though these intellectuals were of the same 
social class as the wealthy and proud. On the other hand, the schools 
of scriptural schol.\-s of the Herodian period, whose frustration and 
psychological tension grew in the face of the obvious inevitability of 
subjugation to a foreign power, produced a proletaroid class of inter- 
preters of the law. These served as pastoral counselors, preachers and 
teachers in the synagogues, and their representatives also sat in the 
Sanhedrin. They influenced decisively the popular piety of those mem- 
bers (chaberim~) of the Jewish community who were rigidly faithful to 
the law in the sense of the permhim (-pJiarisflioi). In the Talmndic 
period, this functional activity developed into the rabbinate, a profession 
of congregational functionaries. Through this stratum there now ensued, 
in contrast to what had gone before, a tremendous expansion of petty- 
bourgeois and pariah intellectualism, such as we do not find among any 
other people. Philo already regarded "general public schools" for the 
diffusion of literacy and of systematic education in casuistical thinking as 
the hallmark of the jews. It was the influence of this stratum that first 
-supplanted, among urban Jews, the activity of the prophets by the cult 
of fidelity to die law and to the study of the sacred scriptures of the law. 

This Jewish stratum of popular intellectuals, entirely remote from 
any connection with mystery religions, unquestionably occupied a lower 
social position than the strata of philosophers and mystagogues in Hel- 
lenistic societies of the Near East. But intellectualism was undoubtedly 
alre;idv diffused throughout the various social strata of the Hellenistic 



5 I O RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

Orient in pre-Christian times, and in fact produced in the various 
mysteries and cults of salvation, by allegory and speculation, dogmas 
similar to those generated by the Orphics, who general] y seem to have 
belonged to the middle classes. These mysteries and soteri ©logical specu- 
lations were certainly well known to a scriptural scholar of the Diaspora 
like Paul, who rejected them vigorously; it will be recalled that the cult 
of Mithra was widely diffused in Cilicia during the time of Pompey 
[ca. 60 b.c] as a religion of pirates, although the epigraph ic evidence for 
its existence specifically at Tarsus stems from the Christian era. It is 
quite likely that salvation hopes of different kinds and origins existed 
side by side in Judaism for a long period, especially in the provinces. 
Otherwise, it would have been impossible for Judaism to produce even in 
the period of the prophets, in addition to the idea of a future monarch 
of the Jewish people restored to power, the idea that another king of the 
poor folk would enter Jerusalem upon a donkey; and indeed it would 
have been difficult for the Jews to evolve their idea of the "son of man," 
an obvious linguistic product of Semitic grammar. 

All in all, lay intellectual ism, whether of the noble or the pariah 
kind, is involved in every complex soteriology which develops abstrac- 
tions and opens up cosmic perspectives, going far beyond mythologies 
oriented to the mere processes of nature or to the simple prediction of 
the appearance at some future time of a good king who is already wait- 
ing somewhere in concealment. 



* 6. The Predominance of Anti-Intellectualist Currents in 
Early Christianity 

This scriptural scholarship, which is an instance of petty-bourgeois 
intellectualism, entered from Judaism into early Christianity. Paul, ap- 
parently an artisan like many of the late Jewish scriptural scholars (in 
sharp contrast to the intellectuals of the period of Ben Sira, who pro- 
duced anti-plebeian wisdom doctrines), is an outstanding representative 
of this class in early Christianity, though of course other traits are also 
to be found in Paul. His gnosis, though very remote from that conceived 
by the speculative intellectuals of the Hellenistic Orient, could later 
provide many points of support for the Marcionite movement. Intel- 
lectualism rooted in a sense of pride that only those chosen by god under- 
stand the parables of the master was also strongly marked in Paul, who 
boasted that his true knowledge was "to the Jews a stumbling block and 
to the Greeks foolishness." Paul's doctrine of the dualism of flesh and 



vii ] Intellectualism and Salvation Religion 5 1 1 

spirit has some relationship to the attitudes toward sensuality typical of 
intellectualist salvation doctrines, but it is rooted in other conceptions, 
A somewhat superficial acquaintance with Hellenistic philosophy can be 
presumed in his thought. Above all, Paul's conversion was not merely a 
vision, in the sense of hallucinatory perception. Rather, his conversion 
was also recognition of the profound inner relationship between the 
personal fate of the resurrected founder of Christianity and the cultic 
ideologies of the general Oriental savior doctrines and conceptions of 
salvation (with which Paul was well acquainted), in which the promises 
of Jewish prophecy now found their place for him. 

The argumentation of Paul's Episdes represents the highest type of 
dialectic found among petty-bourgeois intellectuals. Paul assumes a 
remarkable degree of direct "logical imagination" on the part of the 
groups he is addressing in such compositions as the Epistle to the Ro- 
mans. It is most likely that it was not Paul's doctrine of justification 
which was taken over at the time, but rather his conception of the 
relationship between spirit and the community and his conception of the 
manner in which spirit is accommodated to the facts of the everyday 
world. The fierce anger directed against him by the Jews of the Diaspora, 
for whom his dialectical method must have appeared as a misuse of 
education, only shows how thoroughly just such a method corresponded 
to the mental attitude of the petty-bourgeois intellectual. This intel- 
lectualism was continued by the charismatic teachers (_didaskaloi~) in 
pristine Christian communities as late as the Didache; and Harnack 
found a specimen of its hermeneutic in the Epistle to the Hebrews. J But 
this intellectualism disappeared with the slow growth of the bishops' and 
presbyters' monopoly of the spiritual leadership of the community. In 
replacement of such intellectuals and teachers came first the intellectual- 
ist apologists, then the patristic church fathers and dogmatists, who had 
received a Hellenistic education and were almost all clerics, and then 
the emperors, who had a dilettante interest in theology. The culmination 
of this development was the emergence into power in the East, after vic- 
tory in the iconoclastic struggle, of monks recruited from the lowest non- 
Greek social groups. Thenceforth it became impossible to eliminate 
completely from the Eastern church the type of formalistic dialectic 
common to all these circles and associated with a semi-intellectualistic, 
semi-primitive, and magical ideal of self-deification of the church. 

Yet one factor was decisive for the fate of ancient Christianity. From 
its inception Christianity was a salvation doctrine in respect to its genesis, 
its typical carrier, and the religious way of life that appeared decisive to 
this carrier. From its very beginning, Christianity, notwithstanding the 
many similarities of its soteriological myth to the general Near Eastern 



5 I 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

pattern of such myths, from which it borrowed elements that it changed, 
took a position against intellectualism with the greatest possible aware- 
ness and consistency. Nor does it argue against the anti-intellectualism of 
Christianity that Paul took over the hermeneutical methodology of the 
scribes. Primitive Christianity took stands against both the ritualistic 
and legalistic scholarship of Judaism and the soteriology of the Cnostic 
intellectual aristocrats, and it most strongly repudiated ancient phi- 
losophy. 

The distinctive characteristics of Christianity were its rejection of 
the Gnostic denigration of believers (-uistT&oO and its affirmation that 
the exemplary Christians were those endowed with pneuma, the poor , 
in spirit, rather than the scholars. Christianity also taught uniquely that 
the way to salvation is not derived from academic education in the Law, 
from wisdom about the cosmic or psychological grounds of life and suf- 
fering, from knowledge of the conditions of life within the world, from 
knowledge of the mysterious significance of sacramental rites, or from 
knowledge of the future destiny of the sou! in the other world. To these 
hallmarks of Christianity must be added the fact that a considerable 
portion of the inner history of the early church, including the formula- 
tion of dogma, represented the struggle of Christianity against intel- 
ctualism in all its forms. 

If one wishes to characterize succinctly, in a formula so to speak, 
the types representative of the various strata that were the primary 
carriers or propagators of the so-called world religions, they would be 
the following: In Confucianism, the world-organizing bureaucrat; in 
Hinduism, the world-ordering magician; in Buddhism, the mendicant 
monk wandering through the world; in Islam, the warrior seeking to 
conquer the world; in Judaism, the wandering trader; and in Chris- 
tianity, the itinerant journeyman. To be sure, all these tvpes must not 
be taken as exponents of their own occupational or material "class 
interests," but rather as the ideological carriers of the kind of ethical or 
salvation doctrine which rather readily conformed to their social position. 

As for Islam, its distinctive religiosity could have experienced an 
infusion of intellectualism, apart from the official schools of law and 
theology and the temporary efflorescence of scientific interests, only after 
its penetration by Sufism, but the Iatter's orientation was not along intel- 
lectual lines- Indeed, tendencies toward rationalism were completely 
lacking in the popular dervish faith. In Islam only a few heterodox 
sects, which possessed considerable influence at certain times, displayed 
a distinctly intellectualistic character. Otherwise Islam, like medieval 
Christianity, produced in its universities tendencies towards scholas- 
ticism. 



vii ] Intellectualism and Salvation Religion 5 1 3 

7, Elite and Mass Intellectualism in Medieval 
Christianity 

It is imposisble to expatiate here on the relationships of intellectualism 
to religion in medieval Christianity. In any case this religion, ai least 
as far as its sociologically significant effects arc concerned, was not spe- 
cifically oriented to intellectual elements. The strong influence of mo- 
nastic rationalism upon the substantive content of the culture may he 
clarified only by a comparison of Occidental monasticism with that of 
the Near East and Asia, of which a brief sketch will be given later. The 
peculiar nature of Occidental monasticism determined the distinctive 
cultural influence of the church in the West. During the medieval 
period, Occidental Christianity did not have a religious lay intellectualism 
of any appreciable extent, whether of a petty- bourgeois or of a pariah 
character, although some religious lay intellectualism was occasionally 
found among the sects. On the other hand, the role of the educated 
classes in the development of the church was not a minor one. The 
educated strata of Carolingian, Ottonic, and Salic imperialism worked 
towards an imperial and theocratic cultural organization, just as did the 
Josephite monks in $6th century Russia. 7, Above all, the Gregorian 
reform movement and the struggle for power on the part of the papacy 
were carried forward by the ideology of an elite intellectual stratum that 
entered into a united front with the rising bourgeoisie against the feudal 
powers- With the increasing dissemination of university education and 
with the struggle of the papacy to monopolize, for the sake of fiscal 
administration or simple patronage, the enormous number of benefices 
which provided the economic support for this educated stratum, the 
ever-growing class of these "beneficiaries" turned against the papacy in 
what was at first an essentially economic and nationalistic interest in 
monopoly. Then, following the Schism, these intellectuals turned against 
the papacy ideologically, becoming the carriers of the conciliary reform 
movement and later of Humanism. 

The sociology of the Humanists, particularly the transformation of 
a feudal and clerical education into a courtly culture based on the 
largesse of patrons, is not without inherent interest, but we are unable 
to linger over it at this point. The ambivalent attitude of the Humanists 
toward the Reformation was primarily caused by ideological factors. 
Insofar as Humanists placed themselves in the service of building the 
churches of either the Reformation or the Counter-Re form Jtion, they 
played an extremely important, though not decisive, role in organizing 
church schools and in developing doctrine. But insofar as they became 
the carriers of particular religiosity (actually a whole scries of particular 



514 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

types of faith), they remained without permanent influence. In keeping 
with their entire pattern of life; these Humanist groups of the classically 
educated were altogether antipathetic to the masses and to the religious 
sects. They remained alien to the turmoil and particularly to the 
demagogy of priests and preachers; on the whole they remained Erastian 
or irenic in temper, for which reason alone they were condemned to 
suffer progressive loss of influence. 

In addition to sophisticated scepticism and rationalistic enlighten- 
ment, the Humanists displayed a tender religiousness, particularly in the 
Anglican group; an earnest and frequently ascetic moralism, as in the 
circle of Port Royal; and an individualistic mysticism, as in Germany 
during the first period and in Italy. But struggles involving realistic 
power and economic interests were waged, if not by outright violence, 
then at least with the means of demagogy, to which'these Humanist 
groups were not equal. It is obvious that at least those churches desiring 
to win the participation of the ruling classes and particularly of the uni- 
versities needed classically trained theological polemicists as well as 
preachers with classical training. Within Lutheranism, as a result of its 
alliance with the power of the nobility, the combination of education 
and religious activity rapidly devolved exclusively upon professional 
theologians. 

Hudibras [Samuel Butler's mock-heroic poem, 1663-78] still mocked 
the Puritan groups for their ostensible philosophical erudition, but what 
gave the Puritans, and above all the Baptist sects, their insuperable 
power of resistance was not the intellectualism of the elite but rather 
the intellectualism of the plebeian and occasionally even the pariah 
classes, for Baptist Protestantism was in its first period a movement 
carried by wandering craftsmen or apostles. There was no distinctive 
intellectual stratum with a characteristic life pattern among these Protes- 
tant sects, but after the close of a brief period of missionary activity by 
their wandering preachers, it was the middle class that became suffused 
with their intellectualism. The unparalleled diffusion of knowledge 
about the Bible and interest in extremely abstruse and ethereal dogmatic 
controversies which was characteristic of the Puritans of the seventeenth 
century, even among peasants, created a popular religious intellectualism 
never found since, and comparable only to that found in late Judaism 
and to the religious mass intellectualism of the Pauline missionary com- 
munities. In contrast to the situations in Holland, parts of Scotland, and 
the American colonies, this popular religious intellectualism soon dwin- 
dled in England after the power spheres and the limits for seizing power 
had been tested and determined in the religious wars. However, this 
period formed the intellectualism of the educated in the Anglo-Saxon 



vii ] _. Intellectuatism and Salvation Religion 5 1 5 

realm, marked as it is by a traditional deference toward a deistic- 
enlightened kind of religion, of varying degrees of mildness, which never 
reach the point of anti-clericalism (a phenomenon that we will' not 
pursue at this point). Since this Anglo-Saxon mentality has been de- 
termined by the traditionalist attitudes and the moralistic interests of 
the politically powerful middle class, and thus by a. religious plebeian 
intellectualism, it provides the sharpest contrast to the transformation 
of the basically aristocratic and court-centered education of {£e Latin 
countries into radical antipathy or indifference to the church. 



8. Modern Intellectual Stilus Groups and Secular 
Salvation Ideologies 

These Anglo-Saxon and Latin developments, which ultimately had 
an anti-metaphysical impact, contrast with the German brand of "non- 
political" elite education, which is neither apolitical nor anti-political. 8 
This kind of education resulted from concrete historical events and had 
few (and mostly negative) sociological' determinants. It was meta- 
physically oriented, but had very little to do with specifically religious 
needs, least of all any quest for salvation. On the other hand, the 
plebeian and pariah intellectualism of Germany, like that of the Latin 
countries, increasingly took a radically anti-religious tum, which became 
particularly marked after the rise of the economically eschatological 
faith of socialism. This development was in marked contrast to that in 
the Anglo-Saxon areas, where the most serious forms of religion since 
Puritan times have had a sectarian rather than an institutional-authori- 
tarian character. 

Only these anti-religious sects had a stratum of declassed intellectuals 
who were able to sustain a quasi-religious belief in the socialist eschatol- 
bgy at least for a while. This particular "academic" element receded to 
the extent that the workers took their interests into their own hands. It 
receded further because of the inevitable disillusionment with an almost 
superstitious veneration of science as the possible creator or at least 
prophet of social revolution, violent or peaceful, in the sense of salvation 
from class rule. So, too, it comes about that the only remaining variant 
of socialism in western Europe equivalent to a religious faith, namely 
syndicalism, can easily turn into a romantic game played by circles 
without direct economic interests. 

The last great movement of intellectuals which, though not sus- 
tained by a uniform faith, shared enough basic elements to approximate 



5, I 6 RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

a religion was the Russian revolutionary intelligentsia, in which pa- 
trician, academic and aristocratic intellectuals stood next to plebeian ones. 
Plebeian intellectualism was represented by the proletaroid minor official- 
dom, which was highly sophisticated • in its sociological thinking and 
broad cultural interests; it was composed especially of the zemstvo offi- 
cials (the so-called "third element"). Moreover, this kind of intellectu- 
alism was advanced by journalists, elementary school teachers, revolu- 
tionary apostles and a peasant intelligentsia that arose out of the Russian 
social conditions. In the eighteen-seventies, this movement culminated 
in an appeal to a theory of natural rights, oriented primarily toward 
agricultural communism, the so-called narodnichestvo (populism). In 
the nineties, this movement clashed sharply with Marxist dogmatics, but 
in part also aligned itself with it. Moreover, attempts were made to relate 
it, usually in an obscure manner, first to Slavophile romantic, then 
mystical, religiosity or, at least, religious emotionalism. Under the in- 
fluence of Dostoevsky and Tolstoy, an ascetic and acosmistic patterning 
of personal life was created among some relatively large groups of these 
Russian intellectuals. We shall leave untouched here die question as to 
what extent this movement, so strongly infused with the influence of 
Jewish proletarian intellectuals who were ready for any sacrifice, can 
continue after the catastrophe of the Russian revolution (in 1906). 

In Western Europe, ever since the seventeenth century, the view- 
points of Enlightenment religions produced, in both Anglo-Saxon and, 
more recendy, Gallic culture areas, unitarian and deistic communities 
and communities of a syncretistic, atheistic, or free-church variety. Bud- 
dhistic conceptions, or what passed for such, also played some part in 
this development. In Germany, Enlightenment religious views found 
a hearing among the same groups that were interested in Freemasonry, 
namely those devoid of direct economic interests, especially university 
professors but also declassed ideologists and educated groups partly or 
wholly belonging to the proletariat. On the other hand, both the Hindu 
Enlightenment (Brahma-Samaj) and the Persian Enlightenment were 
products>of contact with European culture. 

The practical importance of such movements for the sphere of cul- 
ture was greater in the past than now. Many elements conspire to render 
unlikely any serious possibility of a new congregational religion borne 
by intellectuals. This constellation of factors includes the interest of the 
privileged strata in maintaining the existing religion as an instrument for 
controlling the masses, their need for social distance, their abhorrence 
of mass enlightenment as tending to destroy the prestige of elite groups, 
and their well-founded rejection of any faith in the possibility that some 
new creed acceptable to large segments of the population could supplant 



vii ] Intellectualism and Salvation Religion 5 1 7 

the traditional creeds (from the texts of which everyone interprets some- 
thing away, orthodoxy ten percent and liberals ninety percent). Finally, 
and above all, there is the scornful indifference of the privileged strata 
to religious problems and to the church. Performance of some irksome 
formalities does not constitute much of a sacrifice, inasmuch as everyone 
knows they are just that — formalities best performed by the official 
guardians of orthodoxy and the social conventions, and acted on in the 
interest of a successful career because the state requires them performed. 
The need of literary, academic, or cafe-society intellectuals to include 
"religious" feelings in the inventory of their sources of impressions and 
sensations, and among their topics for discussion, has never yet given 
rise to a new religion. Nor can a religious renascence be generated by the 
need of authors to compose books on such interesting topics or by the 
far more effective need of clever publishers to sell such books. No matter 
how much the appearance of a widespread religious interest may be 
simulated, no new religion has ever resulted from such needs of in- 
tellectuals or from their chatter. The pendulum of fashion will presently 
remove this subject of conversation and journalism. 



NOTES 

1. See Rudolf Dvorak, Chinas Religionen (Miinster: Aschendorff, 1895), 
vol. I, "Confucius und seine Lehre," 122-, Dvorak uses the English term "gentle- 
man"; cf . also GAzRS, I, 449. 

2. See Wilhelm Bousset, Die Religion des Judenlums im neutestamentlichen 
Zeitalter (Berlin: Reuther und Reichaid, 1906), sec. ed., i87f. 

3. Ecclesiasticus (i.e., The Wisdom of Jesus ben Struck) xxxviii : 25-39. The 
reference to Johannes Meinhold's writings could not be identified, but cf. his 
Geschichte des judischen Votkes (Leipzig: Quelle und Meyer, 1916), 63, which 
was probably published too late to be used here. 

4. Cf. Adolf von Harnack, Lehrbuch der Dogmengeschichte (Tubingen: 
Mohr, 1909), vol. I, to4ff; on the Didache and the ancient Christian distinction 
between apostles, prophets and charismatic teachers, see id,, Die Mission und Aus- 
breitung des Christentums in den ersten drei Jahrhunderten (Leipzig: Hinrich, 
1902), 237-51. 

5. This refers to the so-called "Church Party" of the period of Ivan II and 
Vasilii III, around 1 500. Its leader was Iosif Sanin, the abbot of Volokolamsk, 
who extolled the Muscovite rulers as the God-ordained secular arm of the church; 
it was durir-^ this time that the idea of Moscow as the Third (and last) Rome 
became established. Iosif and his followers, the "Josephites," fought both the 
rationalist heresy of the so-called Judaizers, a widespread and highly-placed anti- 
Trinitarian and anti-monastic movement, and the radical monastic movement of 
Nil Sorski who wanted the cloisters to abandon the lands and villages attached 
to them. The Josephites pressed for an improvement of monastic mores, but they 
defended the monastic landholdings against the secular interest of the Tsar as 
well as against otherwordly radicalism. Cf. D. S. Mirsky, R«ssw.' A Social His- 



5 I 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) i Ck. VI 

tory (London: Cresset, 1031), 138; Gunther Stfidd, Russische Geschickte 
(Stuttgart: Kroner, 1962), 218—30, 

6. In German wrpolitisck (non-political) usually refers to an attitude of 
proud disdain, for any involvement in partisan activities and for the realities of 
parliamentary politics. Thomas "Manns nationalist aberration during the first 
World Wax, for example, was entitled ■ Reflections of a Non-Political Man (JBe- 
tracktungen ernes Unpolittschen'). Weber attacked the "non-political" politics of 
die literati during the same period in his "Parliament and Government in a Re- 
constructed Germany" (see Appendix II). Since the literati tended to propagate 
grand, albeit unrealistic, political schemes, they were not "anti-political,' and 
they were also not "apolitical" in an otherworldly religious sense. 



VU1 
Theodicy, Salvation, and Rebirth 



1. 



Theodicy and Eschatohgy 



Only Judaism and Islam are strictly monotheistic in principle, and 
even in the latter there are some deviations from monotheism in the later 
cult of saints. Christian trimtarianism appears to have a monotheistic 
trend when contrasted with the tritheistic forms of Hinduism, late Bud- 
dhism, and Taoism. Yet in practice, the Roman Catholic cult of masses 
and saints actually comes fairly close to polytheism. It is by no means 
the case that every ethical god is necessarily endowed with absolute un- 
changeableness, omnipotence, and omniscience — that is to say, with an 
absolutely transcendental character. What provides him with this quality 
is the speculation and the ethical dynamic of passionate prophets. Only 
the God of the Jewish prophets attained this trait in an absolute and 
consistent form, and he became also the God of the Christians and 
Muslims. Not every ethical conception of god produced this result, nor 
did it lead to ethical monotheism as such. Hence, not every approxima- 
tion to monotheism is based on an increase in the ethical content of the 
god-concept. It is certainly true that not every religious ethic has crystal- 
lized a god of transcendental quality who created the universe out of 
nothing and directed it himself. 

Yet the legitimation of every distinctively ethical prophecy has always 
required the notion of a god characterized by attributes that set him 
sublimely above the world, and has normally been based on the ra- 
tionalization of the god-idea along such lines. Of course the manifesta- 



viii ] _ Theodicy, Salvation, and Rebirth .5 1 9 

tion and the significance of this sublimity may be quite different, de- 
pending in part on fixed metaphysical conceptions and in part on the 
expression of the concrete ethical interests of the prophets. But the more 
the development tends toward the conception of a transcendental unitary 
god who is universal, the more there arises the problem of how the ex- 
traordinary power of such a god may be reconciled with the imperfection 
of the world that he has created and rules over. 

The resultant problem of theodicy is found in ancient Egyptian 
literature as well as in Job and in Aeschylus, but in very different forms. 
All Hindu religion was influenced by it in the distinctive way necessi- 
tated by, its fundamental presuppositions; even a meaningful world order 
that is impersonal and super-theistic must face the problem of the world's 
imperfections. In one form or another, this problem belongs everywhere 
among the factors determining religious evolution and the need for 
salvation. Indeed, a recent questionnaire submitted to thousands of Ger- 
man workers disclosed the fact that their rejection of the god-idea was 
motivated, not by scientific arguments, but by their difficulty in recon- 
ciling the idea of providence with the injustice and imperfection of the 
social order. 1 

Now the problem cf theodicy has been solved in various ways. These 
solutions stand in the closest relationship both to the forms assumed by 
the god-concept and to the conceptions of sin and salvation crystallized 
in particular social groups. Let us separate out the various theoretically 
pure types. 

One solution is to assure a just equalization by pointing, through 
messianic eschatologies, to a future revolution in this world. In this wav 
the escbatological process becomes a political and social transformation 
of this world. This solution held that sooner or later there would arise 
some tremendous hero or god who would place his followers in the posi- 
tions they truly deserved in the world. The suffering of the present 
generation, it was believed, was the consequence of the sins of the an- 
cestors, for which god holds the descendants responsible, just as someone 
carrying out blood revenge may hold an entire tribe accountable, and as 
Pope Gregory VII excommunicated descendants down to the seventh 
generation. Also, it was held that only the descendants of the pious could 
behold the messianic kingdom, as a consequence of their ancestors' piety. 
If it perhaps appeared necessary to renounce one's own experience cf 
salvation, there was nothing strange in this. Concern about one's children 
was everywhere a definite fact of organic social life, pointing beyond the 
personal interest of an individual and in the direction of another world, 
at least a world beyond one's own death. For those who were alive, the 
exemplary and strict fulfillment of the positive divine commandments 



- O .RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [ Ck. VI 

^fijaihed obligatory, in order to obtain for the individual himself the 
^Jitiipum Opportunity for success in life by virtue of god's favor, and in 
Sijler to ebtain for his descendants a share in the realm of salvation. Sin 
s a breack of fidelity toward god and an impious rejection of god's prom- 
ses. Moreover, the desire to participate personally in the messianic king- 
iom leads to further consequences: a tremendous religious excitation is 
generated when the establishment of the Kingdom of God here on earth 
ippears imminent. Prophets repeatedly arose to proclaim the coming of 
he kingdom, but when such supervention of the messianic kingdom 
ippeared to be unduly delayed, it was inevitable that consolation should 
)e sought in genuine otherworldly hopes. 

The germ of the conception of a world beyond the present one is 
already present in the development of magic into a belief in spirits. But 
it by no means follows that the existence of a belief in the souls of the 
dead always develops into a conception of a special realm of the dead. 
Thus, a very widespread view is that the souls of the dead may be in- 
corporated into animals and plants, depending on the souls' different 
manners of life and death, and influenced by their clan and caste con- 
nections. This is the source of all conceptions regarding the transmigra- 
tion of the soul. Where there exists a belief in a domain of the deceased 
— at first in some geographically remote place, and later above or beneath 
the earth — it by no means follows that the existence of the souls there 
is conceived as eternal. For the souls may be destroyed by violence, may 
perish as the result of the cessation of sacrifices, or may simply die, which 
is apparendy the ancient Chinese view. 

In keeping with the law of marginal utility, a certain concern for 
one's destiny after death would generally arise when the most essential 
earthly needs have been met, and thus this concern is limited primarily 
to the circles of the noble and the well-to-do. Only these groups and 
occasionally only the chieftains and priests, but never the poor and only 
seldom women, can secure for themselves life in the next world, and they 
do not spare great expenditures in doing so. It is primarily the example 
of these groups that serves as a strong stimulus for preoccupation with 
otherworldly expectations. 

. At this point there is as yet no question of retribution in the world 
to come. Where a doctrine of retributions arises, errors in ritual are 
deemed to be the principal causes of such unfortunate consequences. 
This is seen most extensively in the sacred law of the Hindus: whosoever 
violates a caste taboo may be certain of punishment in hell. Only after 
Ae god-concept has been ethicized does the god employ moral consid- 
erations in deciding the fate of human beings in the world to come. The 
differentiation of a paradis^ and a hell does not necessarily jjrise con- 



viii ] Theodicy, Salvation, and Rebirth 521 

comitandy with this development, but is a relatively late product oH 
evolution. As otherworldly expectations become increasingly important^ 
the problem of the basic relationship of god to the world and the problem 
of the world's imperfections press into the foreground of thought; thi^ 
happens the more life here on earth comes to be regarded as a merely 
provisional form of existence when compared to that beyond, the more 
the world comes to be viewed as something created by god ex nihilo, and 
therefore subject to decline, the more god himself is conceived as subject 
to transcendental goals and values, and the more a person's behavior in 
this world becomes oriented to his fate in the next. At times, the hope foe 
continued existence in the world beyond produces a direct inversion — in 
accordance with the formula, "the last shall be 6rst" — of the primordial 
view in which it had held this to be a matter of concern only to the 
noble and the wealthy. 

But this view has seldom been worked out consistendy, even in th^ 
religious conceptions of pariah peoples. It did play a great role, however, 
in the ancient Jewish ethic. The assumption that suffering, particularly^ 
voluntary suffering, would mollify god and improve one's chances in the 
world to come is found sprinkled through and developed in many types; 
of expectation regarding continued existence after death. These may 
arise from very diverse religious motivations, and may perhaps derive 
to some extent from the ordeals of heroic asceticism and the practice of 
magical mortification. As a rule, and especially in religions under the in- 
fluence of the ruling strata, the converse view obtained, viz., that ter* 
restrial differentiations of status could continue into the next world av 
well, for the reason that they had been divinely ordained. This belief 
is still apparent in the phrase current in Christian nations, "His late 
Majesty, the King." 

However, the distinctively ethical view was that there would be con- 
crete retribution of justice and injustice on the basis of a trial of the 
dead, generally conceived in the eschatological process as a universal day 
of judgment. In this wav, sin assumed the character of a crimen to be 
brought into a system of rational casuistry, a crimen for which satisfac- 
tion must somehow be given in this world or in the next so that one 
might ultimately stand vindicated before the judge of the dead. Accord- 
ingly, it would have made sense to grade rewards and punishments into 
relative degrees of merit and transgression, which was still the case in 
Dante, with the result that they could not really be eternal. But because 
of the pale and uncertain character of a person's chances in the next 
world, by comparison with the realities of this world, the remission of 
eternal punishments was practically always regarded as impossible by 
prophets and priests. Eternal punishment, moreover, seemed to be the 



5 ; 2 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

only appropriate fulfillments of the demand for vengeance against un- 
believing, renegade, and godless sinners, especially those who had gone 
unpunished on earth. 



2. Predestination and Providence 

Heaven, hell, and the judgment of the dead achieved practically uni- 
versal importance, even in religions for which such concepts were com- 
pletely alien, such as ancient Buddhism. However, even though inter- 
mediate realms of existence, such as those depicted in the teachings of 
Zoroaster or in the Roman Catholic conception of purgatory, realms en- 
compassing punishments which would only be undergone for limited 
durations, weakened the consistency of conceptions of eternal punish- 
ment, there always remained the difficulty of reconciling the punishment 
of human acts with the conception of an ethical and at the same time 
all-powerful creator of the world, who is ultimately responsible for these 
human actions himself. As people continued to reflect about the insoluble 
problem of the imperfections of the world in the light of god's omni- 
potence, one result was inevitable: the conception of an unimaginably 
great ethical chasm between the transcendental god and the human 
being continuously enmeshed in the toils of new sin. And this concep- 
tion inevitably led to the ultimate conclusion, almost reached in the 
Book of Job, that the omnipotent creator God must be envisaged as be- 
yond all the ethical claims of his creatures, his counsels impe^ ">us tq 
human comprehension. Another facet of this emerging view as that 
God's absolute power over his creatures is unlimited, and therefore that 
the criteria of human justice are utterly inapplicable to his behavior. 
With the development of this notion, the problem of theodicy simply 
disappeared altogether. 

In Islam, Allah was deemed by his most passionate adherents to 
possess just such a limidess power over men. In Christianity, the dens 
abscondttus was so envisaged, especially by the virtuosi of Christian 
piety. God's sovereign, completely inexplicable, voluntary, and ante- 
cedently established (a consequence of his omniscience) determination 
has decreed not only human fate on earth but also human destiny after 
death. The idea of the determinism or predestination from all eternity of 
both human life on this earth and human fate in the world beyond comes 
•to its strongest possible expression in such views. The damned might well 
complain about their sinfulness, imposed by predestination, in the same 
manner as animals might complain because they had not been created 
human beings, a notion expressly stated in Calvinism. 



viii ] Theodicy, Salvation, and Rebirth 523 

In such a context, ethical behavior could never bring about the im- 
provement of one's own chances in either this world or the next. Yet it 
might have another significance, the practical psychological consequences 
of which would in certain circumstances be of even greater moment; 
it might be considered as a symptom or index of one's own state of reli- 
gious grace as established by god's decree. For the absolute sovereignty 
of an omnipotent god compels a practical religious concern to try, at the 
very least, to penetrate god's design in individual cases. Above all, the 
need to ascertain one's own personal destiny in the world beyond is 
of paramount importance. Hence, concomitant with the tendency to re- 
gard "god as the unlimited sovereign over his creatures, there was an in- 
clination to see and interpret god's providence and his personal inter- 
position everywhere in the world's process. 

Belief in providence is the consistent rationalization of magical divi- 
nation, to which it is related, and which for that very reason it seeks 
to devaluate as completely as possible, as a matter of principle. No other 
view of the religious relationship could possibly be as radically opposed 
m all magic, both in theory and in practice, as this belief in providence 
which was dominant in the great theistic religions of Asia Minor and the 
Occident. No other so emphatically affirms the nature of the divine to be 
an essentially dynamic activity manifested in god's personal, providential 
rule over the world. Moreover, there is no view of the religious relation- 
ship which holds such firm views regarding god's discretionary grace and 
the human creature's need of it, regarding the tremendous distance be- 
tween god and all his creatures, and consequently regarding the repre- 
hensibility of any deification of "things of the flesh" as a sacrilege against 
the sovereign god. For the very reason that this religion provides n^ 
rational solution of the problem of theodicy, it conceals the greatest ten- 
sions between the world and god, between the actually existent and the 
ideal. 



3. Other Solutions of Theodicy: Dualism and the 
Transmigration of the Soul 

Besides predestination, there are two other religious outlooks that 
provide systematically conceptualized treatment of the problem of the 
world's imperfections. The first is dualism, as expressed more or less con- 
sistendy in the later form of Zoroastrianism, in the many forms of reli- 
gion in Asia Minor influenced by Zoroastrianism, above all in the final 
form of Babylonian religion (containing some Jewish and Christian in- 



524 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

fluences), and in Mandaeism and Gnosticism, down to the great ideas 
of Manicheism. 

At the turn of the third century, Manicheism seemed to stand on 
the threshold of a struggle for world mastery, even in the Mediterranean 
area. According to the Manicheans, god is not almighty, nor did he create 
the world out of nothingness. Injustice, unrighteousness, and sm— ■ in 
short, all the factors that have generated the problem of theodicy — result 
from the darkening of the luminous purity of the great and good gods 
through contact with the opposite autonomous powers of darkness, which 
are identified with impure matter. The dominance of these forces*, which 
gives dominion ovet the world to some satanic power, has arisen through , 
some primordial wickedness of men or of angels, or, as in the view of 
many Gnostics, through the inferiority of some subordinate creator of 
the world, e.g., Jehovah or the Demiurge. The final victory of the god 
of light in the ensuing struggle is generally regarded as certain, and this 
constitutes a deviation from strict dualism. The world process, although 
full of inevitable suffering, is a continuous purification of the light from 
the contamination of darkness. This conception of the final struggle 
naturally produces a very powerful eschatological emotional dynamic. 

The general result of such views must be the enhancement of an 
eristocsBtic feeling of prestige on the part of the pure and elect. The 
conception of evil, which, on the assumption of a definitely omnipotent 
god, always tends to take a purely ethical direction, may here assume 
a strongly spiritual character. This is because man is not regarded as a 
mere creature facing an absolutely omnipotent power, but as a participant 
in the realm of light. Moreover, the identification of light with what is 
clearest in man, namely the spiritual, and conversely, the identification 
of darkness with the material and corporeal which carry in themselves 
all the coarser temptations, is practically unavoidable. This view, then, 
connects easily with the doctrine of impurity found in tabooistic ethics. 
Evil appears as soiling, and sin — in a fashion quite like that of magical 
misdeeds — appears as a reprehensible and headlong fall to earth from 
the realm of purity and clarity into that of darkness and confusion, lead- 
ing to a state of contamination and deserved ignominy. In practically all 
the. religions with an ethical orientation there are unavowed limitations 
of divine omnipotence in the form of elements of a dualistic mode of 
thought 

The most complete formal solution of the problem of theodicy is the 
special achievement of the Indian doctrine of karma, the so-called belief 
|n the transmigration of souls. This world is viewed as a completely con- 
nected and self-contained cosmos of ethical retribution. Guilt and merit 
^ithin this world axe unfailingly compensated by fate in the successive 



viii } Theodicy, Salvation, and Rebirth 525 

lives of the soul, which may be reincarnated innumerable times in ani- 
mal, human, or even divine forms. Ethical merits in this life can make 
possible rebirth into life in heaven, but that life can last only until one's 
credit balance of merits has been completely used up. The finiteness of 
earthly life is the consequence of the finiteness of good or evil deeds in 
the previous life of a particular soul. What may appear from the view- 
point of retribution as unjust suffering in the present life of a person 
should be regarded as atonement for sin in a previous existence. Each 
individual forges his own destiny exclusively, and in the strictest sense 
of the word. 

The belief in the transmigration of souls has certain links with widely 
diffused animistic views regarding the passage of the spirits of the dead 
into natural objects. It rationalizes these beliefs, and indeed the entire 
cosmos, by means of purely ethical principles. The naturalistic "causality" 
of our habits of thought is thus supplanted by a universal mechanism of 
retribution, for which no act that is ethically relevant can ever be lost. 
The consequence .for dogma is the complete dispensability, and indeed 
unthinkableness, of an omnipotent god's interference with this mecha- 
l nism, for the eternal world process provides for ethical obligations 
through automatic functioning. The mechanism of retribution is, there- 
fore, a consistent deduction from the super-divine character of the eternal 
order of the world, in contrast to the notion of a god who is set over 
the world, rules it personally, and imposes predestination upon it. In 
ancient Buddhism, where this mechanistic notion of the eternal order 
of the world has been developed with the greatest consistency, even the 
soul is completely eliminated. What alone exists is the sum of individual 
good or evil actions, which are relevant for the mechanisms of karma 
and associated with the illusion of the ego. 

But on their part, all actions are products of the eternally helpless 
struggle of all created life, which by the very fact of its finite creation is 
destined for annihilation; they all arise from the thirst for life, which 
brings forth all questing for the world to come and all surrender to 
pleasures here on earth. This thirst for life is the ineradicable basis of 
individuation and creates life and rebirth as long as it exists. Strictly 
speaking, there is no sin, but only offenses against one's own clear in- 
terest in escaping from this endless wheel, or at least in not exposing one- 
self to a rebirth under even more painful circumstances. The meaning 
of ethical behavior may then he, when modestly conceived, either in 
improving one's chances in his next incarnation or — if the senseless 
struggle for mere existence is ever to be ended — in the elimination of 
rebirth as such. 

In the doctrine of metempsychosis there is none of the bifurcation 



526 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

of the world that is found in the ethical dualistic religions of providence. 
The dualism of a sacred, omnipotent, and majestic god confronting the 
ethical inadequacy of all his creatures is altogether lacking. Nor is there, 
as in spiritualistic dualism, the bisection of all creation into light and 
darkness or into pure and clear spirit on the one side with dark and 
sullied matter on the other. Here, rather, is an ontological dualism, one 
contrasting the world's transitory events and behavior with the serene 
and perduring being of eternal order — immobile divinity, resting in 
dreamless sleep. Only Buddhism has deduced from the doctrine of the 
transmigration of souls its ultimate consequences. This is the most radical 
solution of the problem df theodicy, and for that very reason it provides 
as little satisfaction for ethical claims upon god as does the belief in pre- 
destination. 



4. Salvation: Thi$-VJcrldly and Other-Worldly 

Only a few religions of salvation have produced a single pure solution 
of the problem of the relation of god to the world and to man from among 
the various possible pure types we have just sketched. Wherever such a 
pure type was produced it lasted for only a litde while. Most religions of 
salvation have combined various theories, as a result of mutual interaction 
with each other, and above all in attempts to satisfy the diverse ethk J 
and intellectual needs of their adherents. Consequendy, the differences 
among various religious theories of god's relation to the world and to man 
must be measured by their degree of approximation to one or another of 1 
these pure types'. 

Now the various ethical colorations of the doctrines of god and sin 
stand in the most intimate relationship to the striving for salvation, the 
content of which will be different depending upon what one wants to be 
saved from, and what one wants to be saved for. Net every rational reli- 
gious ethic is necessarily an ethic of salvation. Thus, Confucianism is a 
religious ethic, but it knows nothing at all of a need for salvation. On 
the other hand. Buddhism is exclusively a do .trine of salvation, but it has 
no god. Many other religions know salvation only as a special concern 
cultivated in narrow conventicles, frequendy as a secret cult. Indeed, 
even tn connection with religious activities which are regarded as distinc- 
tively sacred and which promise their participants some salvation that 
may be achieved only through these activities, the crassest utilitarian 
expectations frequently replace anything we are accustomed to term 
"salvation." The pantomimic musical mystery festivals of the great 
chthonic deities, which controlled both the harvest and the realm of 
the dead, promised to the participant in the Eleusinian mysteries who 



viit ] Theodicy, Salvation, and Rebirth 5^7 

was ritually pure, first wealth and then improvement in his lot in the 
next world. But this was proclaimed without any idea of compensation, 
purely as a consequence of ritualistic devotion. 

In the catalog of goods in the Shih eking, the highest rewards prom- 
ised to the Chinese subjects for their correct performances of the official 
cult and their fulfillment of personal religious obligations are wealth and 
long life, while there is a complete absence of expectations in regard to 
another world and any compensation there. Again, it is wealth that 
Zoroaster, by the grace of his god, principally expects for himself and 
those faithful to him, apart from rather extensive promises relating to 
the world beyond. As rewards for the ethical conduct of its laity, Bud- 
dhism promises wealth and a long and honorable life, in complete con- 
sonance with the doctrines of all inner-worldly ethics of the Hindu 
religions. Finally, wealth is the blessing bestowed by God upon the pious 
Jew. 

But wealth, when acquired in a systematic and legal fashion, is also 
one of the indices of the certification of the state of grace among Prot- 
l estant ascetic groups, e.g., Calvinists, Baptists, Mennonites, Quakers, 
Reformed Pietists, and Methodists. To be sure, in these cases we are 
dealing with a conception that decisively rejects wealth (and other mun- 
dane goods) as a religious goal. But in practice the transition to this 
standpoint is gradual and easy. It is difficult to completely separate con- 
ceptions of salvation from such promises of redemption from oppression 
and suffering as those held forth by the religions of the pariah peoples, 
particularly the Jews, and also by the doctrines of Zoroaster and Muham- 
mad. For the faithful, these promises might include world dominion and 
social prestige, which- the true believer in ancient Islam carried in his 
knapsack* as the reward for holy war against all infidels; or the promises 
might Include a distinctive religious prestige, such as that "rich .the 
Israelites were taught by their tradition that God had promised them as 
their future. Particularly for the Israelites, therefore, God was in the 
first instance a redeemer, because he had saved them from the Egyptian 
house of bondage and would later redeem them from the ghetto. 

In addition to such economic and political salvation, there is the very 
important factor of liberation from fear of noxious spirits and bad magic 
of any sort, which is held to be responsible for the majority of all the 
evils in life. That Christ broke the power of the demons by the force 
of his spirit and redeemed his followers from their control was, in the 
early period of Christianity, one of the most important and influential of 
its -messages. Moreover, the Kingdom of God proclaimed by Jesus of 
Nazareth, which had already come or was held to be close at hand, [Lk. 
1 1 :2o, Mk. 1:15] was a realm of blessedness upon this earth, purged of 
all hate, anxiety, and need; only later did heaven and hell appear in 



528 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

the doctrine. Of course, an eschatology oriented to a future in this world 
would show a distinct tendency to become a hope for the world beyond, 
once the Second Coming (-parcmsia) was delayed. Henceforth, emphasis 
had to be shifted to the afterlife: those alive at present would not be 
able to see salvation during their lifetime, but would see it after death, 
when the dead would awaken. 

The distinctive content of otherworldly salvation may essentially 
mean freedom from the physical, psychological, and social sufferings of 
terrestrial life. On the other hand, it may be more concerned with a 
liberation from the senseless treadmill and transitoriness of life as such. 
Finally, it may be focused primarily on the inevitable imperfection of 
the individual, whether this be regarded more as chronic contamination, 
acute inclination to sin, or more spiritually, as entanglement in the 
murky confusion of earthly ignorance. 

Our concern is essentially with the quest for salvation, whatever its 
form, insofar as it produced certain consequences for practical behavior 
in the world. It is most likely to acquire such a positive orientation to 
mundane affairs as the result of a conduct of life which is distinctively 
determined by religion and given coherence by some central meaning or 
positive goal. In other words, a quest for salvation in any religious group 
has the strongest chance of exerting practical influences when there has 
arisen, out of religious motivations, a systematization of practical conduct 
resulting from an orientation to certain integral values. The goal and 
significance of such a pattern of life may remain altogether oriented to 
this world, or it may focus on the world beyond, at least in part. In the 
various religions, this has taken place in exceedingly diverse fashions^ 
and in different degrees, and even within each religion there are corre- 
sponding differences among its various adherents. Furthermore, the reli- 
gious systematization of the conduct of life has, in the nature of the 
case, certain limits insofar as it seeks to exert influence upon economic 
behavior. Finally, religious motivations, especially the hope of salvation, 
need not necessarily exert any influence at all upon the manner of the 
conduct of life, particularly the manner of economic conduct. Yet they 
may do so to a very considerable extent. 

The hope of salvation has the most far-reaching consequences for 
'the conduct of life when salvation takes the form of a process that caste 
its shadow before it in this life already, or the form of a subjective proc- 
ess taking place completely in this world; hence, when this hope is 
tantamount to "sanctification" or leads to it or is a precondition of it. 
Sanco'fication may then occur as either a gradual process of purification 
or a sudden transformation of the spirit Owefcraoia), a rebirth. 

The notion of rebirth as such is very ancient, and its most classical 



viti ] Theodicy, Salvation, and Rebirth 5 2 9 

development is actually to be found in the spirit belief of magic. The 
possession of magical charisma almost always presupposes rebirth. The 
distinctive education of the magician himself, his specific pattern of life, 
and his distinctive training of the warrior hero are all oriented to rebirth 
and the insurance of the possession of magical power. This process is 
mediated by "removal" (Enfrwcfe-wng) in the form of ecstasy, and by the 
acquisition of a new soul, generally followed by a change of name. A 
vestige of these notions is still extant in the monastic consecration cere- 
mony. Rebirth is at first relevant only to the professional magician, as a 
magical precondition for insuring the charisma of the wizard or warrior. 
But in the most consistent types of salvation religion it becomes a quality 
of devotional mood indispensable for religious salvation, an attitude 
which the individual must acquire and which he must make manifest 
in his pattern of life. 



NOTES 

1. See Adolf Levenstein, Die Arheiterfrage (Munich: Reinhardt, 191 2). 
Levenstein, a worker and self-taught researcher, who pioneered in the survey 
field, was publicly prodded by Weber into making a more detailed analysis of his 
results. See Weber, "Zur Methodik sozialpsychologischer Enqueten und ihrer 
Bearbeiftmg," Archh fur Soztylwissenschaft, 29, 1909, 949-58; cf. also Anthony 
R. Oberschall, Empirical Social Research in Germany 1 848-1 014 (The Hague: 
Mouton, 1965) 948., and Paul Lazarsfeld and id., "Max Weber and Empirical 
Social Research," American Sociological Review, 30:2, April 1965, 190k 

z. An allusion to the famous, but apocryphal statement attributed to Napo- 
leon I: "Tout soldat francais poire dans sa giberne le baton de marechal de 
France." 



IX 

Salvation Through The Believer's Efforts * 



r. Salvation Through Ritual 

The influence any religion exerts on the conduct of life, and espe- 
cially on the conditions of rebirth, varies in accordance with the par- 
ticular path to salvation which is desired and striven for, and in ac- 
cordance with the psychological quality of the salvation in question. 



5 3° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

Salvation may be the accomplishment of the individual himself 
without any assistance on the part of supernatural powers, e.g., in 
ancient Buddhism. In this case, one path to salvation leads through the 
purely ritual activities and ceremonies of cults, both within religious 
worship and in everyday behavior. Pure ritualism as such is not very 
different from magic in its effect on the conduct of life. Indeed, ritual- 
ism may even lag behind magic, inasmuch as magical religion occasion- 
ally produced a definite and rather thorough methodology of rebirth, 
which ritualism did not always succeed in doing. A religion of salvation 
may systematize the purely formal and specific activities of ritual into 
a devotion with a distinctive religious mood (Andacht), in which the 
rites to be performed are symbols of the divine. Then this religious mood 
is the truly redemptory quality. Once it is missing, only the bare and 
formal magical ritualism remains. This has happened as a matter of 
course again and again in the routmization of all devotional religions. 

The consequences of a ritualistic religion of devotion may be quite 
diversified. The comprehensive ritualistic regimentation of life among 
pious Hindus, which by European standards placed extraordinary daily 
demands upon the devout, would have rendered virtually impossible 
the coexistence of a life of exemplary piety in the world with any in- 
tensive acquisitive economic activity, if these demands had been fol- 
lowed exactly. Such extreme devotional piety is diametrically opposite 
to Puritanism in one respect: such a program of ritualism could be 
executed completely only by a man of means, who is free from the 
burden of hard work. But this circumstance limiting the number of 
those whose conduct of life can be influenced by ritualism is to some 
extent avoidable, whereas another inherent limiting circumstance is 
even more basic to the nature of ritualism. 

Ritualistic salvation, especially when it limits the layman to a spec- 
tator role, or confines his participation to simple or essentially passive 
manipulations, especially in situations in which the ritual attitude is 
sublimated as much as possible into a devotional mood, stresses the mood 
of the pious moment that appears to bring the salvation. Consequently, 
the possession of an essentially ephemeral subjective state is striven after, 
and this subjective state — because of the idiosyncratic irresponsibility 
characterizing, for example, the hearing of a mass or the witnessing of 
a mystical play — has often only a negligible effect on behavior once the 
ceremony is over. The meager effect such experiences frequently have 
upon everyday ethical living may be compared to the insignificant in- 
fluence, in this respect, of a beautiful and inspiring play upon the theater 
public no matter how much it has been moved by it. All salvation deriv- 
ing from mysteries has such an inconstant character as it purports to 



ix ] s Salvation Through the Believer's Effort 5 3 1 

produce its effect ex opere oferato, by means of an occasional devotional 
mood. There is no motivation for die believer's actual proof by deed, 
which might guarantee a rebirth. 

On the other hand, when the occasional devotion induced by ritual 
is escalated into a continuing piety and the effort is made to incorporate 
this piety into everyday living, this ritualistic piety most readily takes 
on a mystical character. This transition is facilitated by the requirement 
that religious devotion lead to the participant's possession of a subjec- 
tive state. But the disposition- to mysticism is an individual charisma. 
Hence, it is no accident that the great mystical prophecies of salvation, 
like the Hindu and others in the Orient, have tended to fall into pure 
ritualism as they have become routinized. What is of primary concern 
to us is that in ritualism the psychological condition striven for ulti- 
mately leads directly away from rational activity. Virtually all mystery 
cults have this effect. Their typical intention is the administration of 
sacramental grace: redemption from guilt is achieved by the sheer sacred- 
4 ness of the manipulation. Like every form of magic, this process has a 
tendency to become diverted from everyday life, thereby failing to exert 
any influence upon it. 

But a sacrament might have a very different effect if its distribution 
and administration were linked to the presupposition that the sacrament 
could bring salvation only to those who have become ethically purified 
in the sight of god, and might indeed bring ruin to all others. Even up 
to the threshold of the present time, large groups of people have felt a 
terrifying fear of the Lord's Supper (the sacrament of the Eucharist) 
because of the doctrine that "whoever does not believe and yet eats, 
eats and drinks himself to judgment." Such factors could exert a strong 
influence upon everyday behavior wherever, as in ascetic Protestantism, 
there was no central source for the provision of absolution, and where 
further participation in the sacramental communion occurred frequently, 
providing a very important index of piety. 

In all Christian denominations, participation in sacramental com- 
munion is connected with a prescription of confession as the prelude to 
partaking of the Lord's Supper. But in assessing the importance of con- 
fession, everything depends upon what religious rules are prescribed as 
determining whether sacramental communion may be taken with profit 
to the participant. Only ritual purity was required for this purpose by 
the majority of non-Christian ancient mystery cults, though under cer- 
tain circumstances the devotee was disqualified by grave blood guilt or 
other specific sins. Thus, most of these mysteries had nothing resembling 
a confessional. But wherever the requirement of ritual purity became 
rationalized in the direction of spiritual freedom from sin, the particu- 



5 3 2- RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

lar forms of control and, where it existed, of the confessional became 
important for the type and degree of their possible influence upon daily 
life. From the pragmatic point of view, ritual as such was in every case 
only an instrument for influencing the all-important extra-ritual be- 
havior. So much is this the case that wherever the Eucharist was most 
completely stripped of its magical character, and where further no con- 
trol by means of the confessional existed, e.g., in Puritanism, com- 
munion nevertheless exerted an ethical effect, in some cases precisely 
because of the absence of magical and confessional controls. 

A ritualistic religion may exert an ethical effect in another and 
indirect way, by requiring that participants be specially schooled. This 
happened where, as in ancient Judaism, the fulfillment of ritual com- 
mandments required of the laity some active ritual behavior or some 
ritual avoidance of behavior, and where the formalistic side of the ritual 
had become so systematized into a comprehensive body of law that 
adequate understanding of it required special schooling. Philo empha- 
sized already in ancient times that the Jews, in contrast to all other 
peoples, were trained from their earliest youth (along the lines of our 
public school system) and received a continuous intellectual training in 
systematic casuistry. Indeed, the literary character of Jewish law is 
responsible for the fact that even in modem times many Jews, e.g., those 
in Eastern Europe, have been the only people in their society to enjoy 
systematic popular education. Even in Antiquity, pious Jews had been 
led to equate persons unschooled in the law with the godless. Such 
casuistic training of the intellect naturally exerts an effect on everyday 
life, especially when it involves not only ritual and cultic obligations, as 
those of Hindu law, but also a systematic regulation of the ethics of 
everyday living as well. Then the works of salvation are primarily social 
achievements, distinctively different from cultic performances. 



2. Salvation Through Good Works 

The social achievements which are regarded as conducive to salva- 
tion may be of very different types. Thus, gods of war welcome into 
their paradise only those who have fallen in batde, or at least show them 
preference. In the Brahmin ethic the king was explicitly enjoined to 
seek death in battle once he had beheld his grandson. On the other 
hand, the social achievements in question may be works of "love for 
one's fellow men." But in either case systematization may ensue, and, 
as we have already seen, it is generally the function of prophecy to 
accomplish just this systematization. 



ix } __ Salvation Through the Believer's Effort 533 

A developing systematization of an ethic of "good works" may assume 
either of two very different forms. In the first major form of systematiza- 
tion of an ethic of good works, the particular actions of an individual 
in quest of salvation, whether virtuous or wicked actions, can be evalu- 
ated singly and credited to or subtracted from the individual's account. 
Each individual is regarded as the carrier of his own behavior pattern 
and as possessing ethical standards only tenuously; he may turn out to 
be a weaker or a stronger creature in the face of temptation, according 
to the force of the subjective or external situation. Yet it is held that his 
religious fate depends upon his actual achievements, in their relationship 
to one another. 

This first type of systematization is consistently followed in Zoroast- 
riamsm, particularly in the oldest Garhas by the founder himself, which 
depict the judge of all the dead balancing the guilt and merit of indi- 
vidual actions in a very precise bookkeeping and determining the re- 
ligious fate of the individual person according to the outcome of this 
accounting. This notion appears among the Hindus in an even more 
heightened form, as a consequence of the doctrine of karma. It is held 
that within the ethical mechanism of the world not a single good or evil 
action can ever be lost. Each action, being ineradicable, must necessarily 
produce, by an almost automatic process, inevitable consequences in this 
life or in some future rebirth. This essential principle of life- accounting 
also remained the basic view of popular Judaism regarding the indi- 
vidual's relationship to God. Finally, Roman Catholicism and the 
oriental Christian churches held views very close to this, at least in 
practice. The intentio, according to the ethical evaluation of behavior 
in Catholicism, is not really a uniform quality of personality, of which 
conduct is the expression. Rather, it is the concrete intent (somewhat 
in the sense of the bona fides, mala fides, cul-pa, and dolus of the Roman 
law) behind a particular action. This view, when consistently main- 
tained, eschews the yearning for "rebirth" [in this life] in the strict sense 
of an ethic of inwardness. A result is that the conduct of life remains, 
from the viewpoint of ethics, an unmethodical and miscellaneous suc- 
cession of discrete actions. 

The second major form of systematization of an ethic of good works 
treats individual actions as symptoms and expressions of an underlying 
ethical total personality. It is instructive to recall the attitude of the more 
rigorous Spartans toward a comrade who had fallen in batde in order to 
atone for an earlier manifestation of cowardice— a kind of "redeeming 
duel" [as practiced by German fraternities]. They did not regard him 
as having rehabilitated his ethical status, since he had acted bravely for- 
a specific reason and not "out of the totality of his personality," as we 



5 3 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

would term it. In the religious sphere too, formal sanctification by the 
good works shown in external actions is supplanted by the value of the 
total personality pattern, which in the Spartan example would be an 
habitual temper of heroism. A similar principle applies to social achieve- 
ments of all sorts. If they demonstrate "love for one's fellow man," then 
ethical systematization of this kind requires that the actor possess the 
charisma of "goodness." 

It is important that the specific action be really symptomatic of the 
total character and &at no significance be attached to it when it is a 
result of accident. Thus, this ethic of inwardness (GesinmmgsethiK), 
in its most highly systematized forms, may make increased demands at 
the level of the total personality and yet be more tolerant in regard to 
particular transgressions. But this is not always the case, and the ethic 
of inwardness is generally the most distinctive form of ethical rigorism. 
On the one hand, a total personality pattern with positive religious 
qualifications may be regarded as a divine gift, the presence of which 
will manifest itself in a general orientation to whatever is demanded by 
religion, namely a pattern of life integrally and methodically oriented to 
the values of religion. On the other hand, a religious total personality 
pattern may be envisaged as something which may in principle be ac- 
quired through training in goodness. Of course this training itself will 
consist of a rationalized, methodical direction of the entire pattern of 
life, and not an accumulation of single, unrelated actions. Although 
these two views of the origin of a religious total personality pattern 
produce very similar practical results, yet one particular result of the 
methodical training of the total personality pattern is that the social and 
'ethical quality of actions falls into Secondary importance, while the 
religious effort expended upon oneself becomes of primary importance. 
Consequently, religious good works with a social orientation become 
mere instruments of self perfection: a methodology of salvation. 



■3. Salvation Through Self-Perfection 

Now ethical religions are by no means the first to produce such a 
"methodology" of salvation. On the contrary, highly systematized pro- 
cedures frequently played significant roles in those awakenings to 
charismatic rebirth which promised the acquisition of magical powers. 
This animistic trend of thinking entailed belief in the incarnation of a 
new soul within one's own body, the possession of one's soul by a power- 
ful demon, or the removal of one's soul to a realm of spirits. In all cases 



ix ] Salvation Through the Believer's Effort 535 

the possibility of attaining superhuman actions and powers was involved. 
"Other-worldly" goals were of course completely lacking in all this. 
What is more, this capacity for ecstasy might be used for the most diverse 
purposes. Thus, only by acquiring a new soul through rebirth can the 
warrior achieve superhuman deeds of heroism. The original sense of 
"rebirth" as producing either a hero or a magician remains present in all 
vestigial initiation ceremonies, e.g., the reception of youth into the 
religious brotherhood of the phratry and their equipment with the 
paraphernalia of war, or the decoration of youth with the insignia of 
manhood in China and India (where the members of the higher castes 
are ''termed the "twice-bom"). All these ceremonies were originally as- 
sociated with activities which produced or symbolized ecstasy, and the 
only purpose of the associated training* is the testing or arousing of the 
capacity for ecstasy. 

Ecstasy as an instrument of salvation or self -deification, our exclusive 
interest here, may have the essential character of an acute mental aberra- 
tion or possession; or else the character of a chronically heightened 
idiosyncratic religious mood, tending either toward greater intensity of 
life or toward alienation from life. This escalated, intensified religious 
mood can be of either a mpre contemplative or a more active type. It 
should go without saying that a methodical approach to sanctification 
was not the means used to produce the state of acute ecstasy. Rather, 
the various methods for breaking down organic inhibitions were of 
primary importance in producing ecstasy. Organic inhibitions were 
broken down by the production of acute toxic states induced by alcohol, 
tobacco, or other drugs which have intoxicating effects; by music and 
dance; by sexuality; or by a combination of all three — in short by orgy. 
Ecstasy was also produced by the provocation of hysterical or epileptoid 
seizures among those with predispositions toward such paroxysms, which 
in turn produced orgiastic states in others. However, these acute ecstasies 
are transitory in their nature and apt to leave but few positive traces 
on everyday behavior. Moreover, they lack the meaningful content re- 
vealed by prophetic religion. 

It would appear that a much more enduring possession of the 
charismatic condition is promised by those milder forms of euphoria 
which may be experienced as either a dreamlike mystical illumination 
or a more active and ethical conversion. Furthermore, they produce a 
meaningful relationship to the world, and they correspond in quality to 
evaluations of an eternal order or an ethical god such as are proclaimed 
by prophecy. We have already seen that magic is acquainted with a 
systematic procedure of sanctification for the purpose of evoking charis- 
matic qualities, in addition to its last resort to the acute orgy. For pro- 



5 3 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

fessional magicians and warriors need permanent states of charisma as 
well as acute ecstasies. 

Not only do the prophets of ethical salvation not need orgiastic in- 
toxication, but it actually stands in the way of the systematic ethical 
patterning of life they require. For this reason, the primary target of 
Zoroaster's indignant ethical rationalism was orgiastic ecstasy, particu- 
larly the intoxicating cult of the soma sacrifice, which he deemed un- 
worthy of man and cruel to beasts. For the same reason, Moses directed 
his rationalized ethical attack against the orgy of the dance, just as many 
founders or prophets of ethical religion attacked "whoredom," i.e., 
orgiastic temple prostitution. As the process of rationalization went for- 
ward, the goal of methodically planned religious sanctification increas- 
ingly transformed the acute intoxication induced by orgy into a milder 
but more permanent hahitus, and moreover one that was consciously 
possessed. This transformation was strongly influenced by, among other 
things, the particular concept of the divine that was entertained. The 
ultimate purpose to be served by the planned procedure of sanctifica- 
tion remained everywhere the same purpose which was served in an 
acute way by the orgy, namely the incarnation within man of a super- 
natural being, and therefore presently of a god. Stated differendy, the 
goal was self-deification. Only now this incarnation had to become a 
continuous personality pattern, so far as possible. Thus, the entire pro- 
cedure for achieving consecration was directed to attaining this posses- 
sion of the god himself here on earth. 

But wherever there is belief in a transcendental god, all-powerful in 
contrast to his creatures, the goal of methodical sanctification can no 
longer be self-dei Scat ion in this sense and must become the acquisition 
of those religious qualities the god demands in men. Hence the goal of 
sanctification becomes oriented to the world beyond and to ethics. The 
aim is no longer to possess god, for this cannot be done, but either to 
become bis instrument or to be spiritually suffused by him. Spiritual 
suffusion is obviously closer to self-deification than is instrumentality. 
This difference had important consequences for methodic sanctification 
itself, as we shall later explain. But in the beginning of this development 
there were important points of agreement between the methods directed 
at instrumentality and those directed at spiritual suffusion. In both cases 
the average man had to eliminate from his everyday life whatever was 
not godlike, so that he himself might become more like god. The primary 
ungodlike factors were actually the average habitus of the human body 
and the everyday world, as those are given by nature. 

At this early point in the development of soteriological methodology 
of sanctification, it was still directly linked with its magical precursor, 



ix ] _ Salvation Through the Believer's Effort 5 3 7 

the methods of which it merely rationalized and accommodated to its 
new views concerning the nature of the superhuman and the signif- 
icance of religious sanctification. Experience taught that by the hysteroid 
"deadening" of the bodies of those with special religious qualifications 
it was possible to render such bodies anesthetic or cataleptic and to 
produce in them by suggestion sundry actions that normal neurological 
functioning could never produce. It had also been learned from experi- 
ence that all softs of visionary and spiritual phenomena might easily 
appear during such states. In different persons, these phenomena might 
consist in speaking with strange tongues, manifesting hypnotic and other 
suggestive powers, experiencing impulses toward mystical illumination 
and ethical conversion, or experiencing profound anguish over ones sins 
and joyous emotion deriving from suffusion by the spirit of the god. 
These states might even follow each other in rapid succession. It was a 
further lesson of experience that all these extraordinary capacities and 
manifestations would disappear following a surrender to the natural 
functions and needs of the body, or a surrender to the distracting inter- 
ests of everyday life. As the yearning for salvation developed, men every- 
where drew [negative] inferences about the relationship of mental states 
to the natural functioning of the body and to the social and economic 
requirements of everyday life. 

The specific soteriological methods and procedures for achieving 
sanctification are, in their most highly developed forms, practically all of 
Indian provenience. In India they were undoubtedly developed in con- 
nection with procedures for the magical coercion of spirits. Even in 
India these procedures increasingly tended to become a methodology of 
self-deification, and indeed they never lost this tendency. Self-deification 
was the prevalent goal of sanctification, from the beginnings of the soma 
cult of intoxication in ancient Vedic times up through the development 
of sublime methods of intellectualist ecstasy and the elaboration of erotic 
orgies (whether in coarser or more refined form, and whether actually 
enacted in behavior or only imaginatively enacted within the cult), 
which to this day dominate the most popular form of Hindu religion, the 
cult of Krishna. This sublimated type of intellectualist ecstasy and an 
attenuated method of orgiastic dervishism were introduced into Islam via 
Sufism. To this day Indians are still their typical carriers even as far 
afield as Bosnia (according to a recent statement by Dr. Frank). 1 

The two greatest powers of religious rationalism in history, the 
Roman church in the Occident and Confucianism in China, consistendy 
suppressed this type of ecstasy in their domains. Christianity also sub- 
limated ecstasy into semi-erotic mysticism such as that of Saint Bernard, 
fervent Mariolatry, the quietism of the Counter-Reformation, and the 



5 3 8 « RELIGIOUS GROUPS (SOCIOLOGY OF RELICIOn) f Ck. VI 

emotional piety of Zinzendorf. The specifically extraordinary nature of 
the experiences characteristic of all orgiastic cults, and particularly of 
all erotic ones, accounts, for their having exerted no influence on every- 
day life, or at least in the direction of rationalization or systematization — 
as is seen clearly in the fact that the Hindu and (in general) the dervish 
rehgiosities produced no methodology that aimed at the control of every- 
day living. 



4. The Certainty of Grace and the Religious Virtuosi 

Yet the gap between unusual and routine religious experiences tends 
to be eliminated by evolution towards the systematization and ration- 
alization of the methods for attaining religious sanctification. Out of the 
unlimited variety of subjective conditions which may be engendered by 
methodical procedures of sanctification, certain of them may finally 
emerge as of central importance, not only because they represent psycho- 
physical states of extraordinary quality, but because they also appear to 
provide a secure and continuous possession of the distinctive religious 
acquirement. This is the assurance of grace (certitudo salutis, yerse- 
verantia gratiae}. This certainly may be characterized by a more mystical 
or by a more actively ethical coloration, about which more will be said 
presendy. But in either case, it constitutes the conscious possession of a 
lasting, integrated foundation for the conduct of life. To heighten the 
conscious awareness of this religious possession, orgiastic ecstasy and 
irrational, merely irritating emotional methods of deadening sensation 
are replaced, principally by planned reductions of bodily functioning, 
such as can be achieved by continuous malnutrition, sexual abstinence, 
regulation of respiration, and the like. In addition, thinking and Other 
psychic processes are trained in a systematic concentration of the soul 
upon whatever is alone essential in religion. Examples of such psycho- 
logical training are found in the Hindu techniques of Yoga, the con- 
tinuous repetition of sacred syllables (e.g., Otn), meditation focused on 
circles and other geometrical figures, and various exercises designed to 
effect a planned evacuation of the consciousness. 

But in order to further secure continuity and uniformity in the 
possession of the religious good, the rationalization of the methodology 
of sanctification finally evolved even beyond the methods just men- 
tioned to an apparent inversion, a planned limitation of the exercises to 
those devices which tend to insure continuity of the religious mood. 
This meant the abandonment of all techniques that are irrational from 



ix } __ Salvation Through the Believer's Effort 5 3 9 

the viewpoint of hygiene. For just as every sort of intoxication, whether 
it be the orgiastic ecstasy of heroes, erotic orgies * or the ecstasy of 
terpsichorean frenzies, inevitably culminates in physical collapse, so 
hysterical suffusion with religious emotionalism leads to psychic collapse, 
which in the religious sphere is experienced as a state of profound aban- 
donmentbygod. 

In Greece the -cultivation of disciplined martial heroism finally 
attenuated the warrior ecstasy into the perpetual equableness of so-phro- 
syne, tolerating only the purely musical, rhythmically engendered forms 
of ekstasis, and carefully evaluating the ethos of music for political cor- 
rectness. In the same way, but in a more thorough manner, Confucian 
rationalism permitted only the pentatonic scale in music. Similarly, the 
monastic procedural plan for attaining sanctihcation developed increas- 
ingly in the direction of rationalization, culminating in India in the 
salvation methodology of ancient Buddhism and in the Occident in the 
Jesuit monastic order which exerted the greatest historical influence. 
Thus, all these methodologies of sanctification developed a combined 
physical and psychic regimen and an equally methodical regulation of 
the manner and scope of all thought and action, thus producing in the 
individual the most completely alert, voluntary, and anti-instinctual 
control over his own physical and psychological processes, and insuring 
the systematic regulation of life in subordination to the religious end. 
The goals, the specific contents, and the actual results of the planned 
procedures were very variable. 

That people differ widely in their religious capacities was found to 
be true in every religion based on a systematic procedure of sanctifica- 
tion, regardless of the specific goal of sanctification and the particular 
manner in which it was implemented. As it had been recognized that 
not everyone possesses the charisma by which he might evoke in himself 
the experiences leading to rebirth as a magician, so it was also recognized 
that not everyone possesses the charisma that makes possible the con- 
tinuous maintenance in everyday life of the distinctive religious mood 
which assures the lasting certainty of grace. Therefore, rebirth seemed 
to be accessible only to an aristocracy of those possessing religious quali- 
fications. Just as magicians had been recognized as possessing distinctive 
magical qualities, so also the religious virtuosi who work methodically at 
their salvation now became a distinctive religious "status group" within 
the community of the faithful, and within this circle they attained what 
is specific to every status group, a social honor of their own. 

In India all the sacred laws concerned themselves with the ascetic 
in this sense, since most of the Hindu religions of salvation were 
monastic. The earliest Christian sources represent these religious virtuosi 



5 4° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

as comprising a particular category, distinguished from their comrades 
in the congregation, and they later constituted the monastic orders. In 
Protestantism they formed the ascetic sects or pietistic conventicles. In 
Judaism they were the ferushtnt (_Phariscaot) r an aristocracy with respect 
to salvation which stood in contrast to am haarez. In Islam they were the 
dervishes, and among the dervishes the particular virtuosi were the 
authentic Sufis. In the [Russian] Skoptsy sect they constituted the esoteric 
community of the castrated. We shall later return to the important soci- 
ological consequences of these groups. * 

When methodical techniques for attaining sanctification stressed 
ethical conduct hased on religious sentiment, one practical result was 
the transcendence of particular desires and emotions of raw human 
nature which had not hitherto been controlled by religion. We must 
determine for each particular religion whether it regarded cowardice,* 
brutality, selfishness, sensuality, or some#other natural drive as the one 
most prone to divert the individual from his charismatit character. This 
matter belongs among the most important substantive characteristics of 
any particular religion. But the methodical religious doctrine of sancti- 
fication always remains, in this sense of transcending human nature, an 
ethic of virtuosi. Like magical charisma, it always requires demonstration 
by the virtuosi. As we have already established, religious virtuosi possess 
authentic certainty of their sanctification only as long as their own 
virtuoso religious temper continues to maintain itself in spite of all 
temptations. This holds true whether the religious adept is a brother in 
a world-conquering order like that of the Muslims at the time of Umar 
or whether he is a world-fleeing ascetic like most monks of either the 
Christian or the less consistent Jainist type. It is equally true of the 1 - 
Buddhist monk, a virtuoso of world-rejecting contemplation, the ancient 
Christian, who was an exponent of passive martyrdom, and the ascetic 
Protestant, a virtuoso of the demonstration of religious merit in one's 
calling. Finally, this holds true of the formal legalism of the Pharisaic 
Jew and of the acosmistic goodness of such persons as St. Francis. This 
maintenance of the certainty of sanctification varied in its specific char- 
acter, depending on the type of religious salvation involved, but it always 
— both in the case of the Buddhist arhat and the case of the early 
Christian — required the upholding of religious and ethical standards, 
and hence the avoidance of at least the most corrupt sins. 

Demonstration of the certainty of grace takes very different forms, 
depending on the concept of religious salvation in the particular religion. 
In early Christianity, a person of positive religious qualification, 
namely one who had been baptized, was bound never again to fall into 
a mortal sin. "Mortal sin" designates the type of sin which destroys 



ix ] Salvation Through the Believer's Effort 541 

religious qualification. Therefore, it is unpardonable, or at least capable 
of remission only at the hands of someone specially qualified, by virtue 
of his possession of charisma, to endow the sinner anew with religious 
dharisma (the loss of which the sio documented). When this virtuoso 
dot&rine became untenable in practice within the ancient Christian 
communities, the Montanist group clung firmly and consistendy to one 
virtuoso requirement, that the sin of cowardice remain unpardonable, 
quite as the Islamic religion of heroic warriors unfailingly punished 
apostasy with death. Accordingly, the Montanists segregated themselves 
from the mass church of the average Christians when the persecutions 
under Deems and Diocletian made even this virtuoso requirement im- 
practical, in view of the interest of the priests in maintaining the largest 
possible membership in the community. 



NOTES 

1. Hie present and the following two sections constitute a single section in 
die German edition, entitled "The Different Roads to Salvation and Their In- 
fluence on Conduct." 

i. Perhaps C Frank, author of Studien xur bobylomschen Rdigwit, I, 1911. 
(W) 



X 
Asceticism, Mysticism and Salvatiou 

f 
r . Asceticism: World-Rejecting and Inner-Worldly 

As we have already stated at a number of points, the specific char- 
acter of the certification of salvation and also of the associated practical 
conduct is completely different in religions which differendy represent 
the character of the promised salvation, the possession of which assures 
blessedness felvan'on may be viewed as the distinctive gift of active 
ethical behavior performed in the awareness that god directs this be- 
havior, i.e, that the actor is an instrument of god. We shall designate- 
tins type of attitude toward salvation, which is characterized by a 
methodical procedure for achieving religious salvation, as "ascetic." This 
designation is for our purposes here, and we do not in any way deny 



5 4 2 RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [ Cfc. VI 

that this term may be and has been used in another and wider sense. 
The contrast between our usage and the wider usage will become clearer 
later on in this work- 
Religious virtuosity, in addition to subjecting the natural drives to a 
systematic patterning of life, always leads to a radical ethico-religious 
critique of the relationship to society, the conventional virtues of which 
are inevitably unheroic and utilitarian. Not only do the simple, "natural" 
virtues within the world not guarantee salvation, but they actually place 
salvation in hazard by producing illusions as to that which alone is indis- 
pensable. The "world" in the religious sense, i.e., the domain of social 
relationships, is therefore a realm of temptations. The world is full of 
temptations, not only because it is the site of sensual pleasures which are 
ethically irrational and completely diverting from things divine, but even 
more because it fosters in the religiously average person complacent self- 
sufficiency and self-righteousness in the fulfillment of common obliga- 
tions, at the expense of the uniquely necessary concentration on active 
achievements leading to salvation. 

Concentration upon the actual pursuit of salvation may entail a 
formal withdrawal from the "world": from social and psychological ties 
with the family, from the possession of worldly goods, and from political, 
economic, artistic, and erotic activities — in short, from all creaturely 
interests. One with such an attitude may regard any participation in 
these affairs as an acceptance of the world, leading to alienation from 
god. This is "world-rejecting asceticism" Qweltahlehnende Askese). 

On the other hand, the concentration of human behavior on activi- 
ties leading to salvation may require participation within the world (or 
more precisely: within the institutions of the world but in opposition to 
them) on the basis of the religious individual's piety and his qualifica- 
tions as the elect instrument of god. This is "inner-worldly asceticism" 
(innerweltliche Askese). In this case the world is presented to the re- 
ligious virtuoso as his responsibility. He may have the obligation to 
transform the world in accordance with his ascetic ideals, in which case 
the ascetic will become a rational reformer or revolutionary on the basis 
of a theory of natural rights. Examples of this were seen in the "Parlia- 
ment of the Saints" under Cromwell, in the Quaker State of Pennsyl- 
vania, and in the conventicle communism of radical Pietism. 

As a result of the different levels of religious qualification, such a 
congery of ascetics always tends to become an aristocratic, exclusive or- 
ganization within or, more precisely, outside the world of the average 
people who surround these ascetics — in principle, it is not different 
from a "class". Such a religiously specialized group might be able to 
master the world, but it still could not raise the religious endowment 



x ] Asceticism, Mysticism and Solvation 543 

of the average person to its own level of virtuosity. Any rational religious 
associations that ignored this obvious fact were bound sooner or later to 
experience in their own everyday existence the consequences of differ- 
ences in religious endowment. 

From the point of view of the basic values of asceticism, the world 
as a whole continues to constitute a massa ferditionis. The only remain- 
ing alternative is a renunciation of the demand that the world conform 
to religious claims. Consequendy, if a demonstration of religious fidelity 
is still to be made within the institutional structure of the world, then_ 
the world, for the very reason that it inevitably remains a natural vessel 
of sin, becomes a challenge for the demonstration of the ascetic temper 
and for the strongest possible attacks against the world's sins. The wodd 
abides in the lowly state of all things of the flesh. Therefore, any 
sensuous surrender to the world's goods may imperil concentration upon 
and possession of the ultimate good of salvation, and may be a symptom 
of unboliness of spirit and impossibility of rebirth. Nevertheless, the 
world as a creation of god, whose power comes to expression in it despite 
t its creatureliness, provides the only medium through which one's unique 
religious charisma may prove itself by means of rational ethical conduct, 
so that one may become and remain certain of one's own state of graceT 

Hence, as the field provided for this active certification, the order of 
the world in which the ascetic is situated becomes for him a vocation 
which he must fulfill rationally. As a consequence, and although the 
enjoyment of wealth is forbidden to the ascetic, it becomes his vocation 
to engage in economic activity which is faithful to rationalized ethical 
requirements and which conforms to strict legality. If success supervenes 
upon such acquisitive activity, it is regarded as the manifestation of 
god's blessing upon the labor of the pious man and of god's pleasure 
with his economic pattern of life. ~_ 

Any excess of emotional feeling for one's fellow man is prohibited 
as being a deification of the creatufely, which denies the unique value 
of the divine gift of grace. Yet it is man's vocation to participate ration- 
ally and soberly in the various rational organizations (Zweckverhande) 
of the world and in their objective goals as set by god's creation. 
Similarly, any eroticism that tends to deify the human creature is 
proscribed. On the other hand, it is a divinely imposed vocation of man 
"to soberly produce children" (as the Puritans expressed it) within 
marriage. Then, too, there is a prohibition against the exercise of force 
by an individual against other human beings for reasons of passion or- 
revenge, and above all for purely personal motives. However, it is 
divinely enjoined that the rationally ordered state shall suppress and 
punish sins and rebelliousness. Finally, all personal secular enjoyment 



5 4 4 RELIGIOUS GROUPS (SOCIOLOGY OP RELJCIOn) [ Ck. VI 

of power is ^bidden as a deification of the creaturely, though it is held 
that a rational legal order within society is pleasing- to god. 

■"The person who lives as a worldly ascetic is a rationalist, not only in 
the sense that he rationally systematizes his own conduct, but also in 
his rejection of everything that is ethically irrational, esthetic, or depend- 
ent upon his own emotional reactions to the world and its institutions. 
The distinctive goal always remains the alert, methodical control of one's 
own pattern of life and behavior. This type of inner-worldly asceticism 
included, above all, ascetic Protestantism, which taught the principle of 
loyal fulfillment of obligations within the framework of the world as the 
sole method of proving religious merit, though its several branches 
demonstrated this tenfet with varying degrees of consistency. 



2, Mysticism versus Asceticism 

But the distinctive content of salvation may not be an active quality 
of conduct, that is, an awareness of having executed the divine will; it 
may instead be a subjective condition of a distinctive kind, the most 
notable form of which is mystic illumination. This too is confined to a 
minority who have particular religious qualifications, and among them 
only as the end product of the systematic execution of a distinctive type 
of activity, namely contemplation. For the activity of contemplation to 
succeed in achieving its goal of mystic illumination, the extrusion of all 
everyday mundane interests is always required. According to the experi- 
ence of the Quakers, God can speak within one's soul only when the 
creaturely element in man is altogether silent. All contemplative mysti- 
cism from Lao Tzu and the Buddha up to Tauler [c. 1300-1361] is in 
agreement with this notion, if not with these very woros. 

These beliefs may result in absolute flight from the world. Such a 
contemplative flight from the world, characteristic of ancient Buddhism 
and to some degree characteristic of all Asiatic and Near Eastern forms 
of salvation, seems to resemble the ascetic world view — but it is neces- 
sary to make a very clear distinction between the two. In the sense 
employed here, "world-rejecting asceticism" is primarily oriented to 
activity within the world. Only activity within the world hetps the 
ascetic to attain that for which he strives, a capacity for action by god's 
grace. The ascetic derives renewed assurances of his state of grace from 
his awareness that his possession of the central religious salvation gives 
'him the power to act and his awareness that through his actions he 
serves god. He feels himself to be a warrior in behalf of god, regardless 



x ] - Asceticism, Mysticism and Salvation 545 

of who the enemy is and what the means of doing battle are. Further- 
more, his opposition to the world is felt, not as a flight, but as 3 repeated 
victory over ever new temptations which he is bound to combat actively, 
time and again. The ascetic who rejects the world sustains at least the 
negative inner relationship with it which is presupposed in the struggle 
against it It is therefore more appropriate in his case to speak of a 
"rejection of the world" than of a "flight from the world." Flight is 
much more characteristic of the contemplative mystic. 

In contrast to asceticism, contemplation is primarily the quest to 
achieve rest in god and in him alone. It entails inactivity, and in its 
most consistent form it entails the cessation of thought, of everything 
that in any way reminds one of the world, and of course the absolute 
minimization of all outer and inner activity. By these paths the mystic 
achieves that subjective condition which may be enjoyed as &e posses- 
sion of, or mystical union (tmio mysttca) with, the divine. This is a 
distinctive organization of the emotions which seems to promise a certain 
' type of knowledge. To be sure, the subjective emphasis may be more 
upon the extraordinary content of this knowledge or more upon the 
emotional coloration of the possession of this knowledge; objectively, the 
latter is decisive. 

The unique character of mystical knowledge consists in the fact 
that, although it becomes more incommunicable the more it is specif- 
ically mystical, it is nevertheless recognized as knowledge. For mystical 
knowledge is not new knowledge of any facts or doctrines, but rather the 
perception of an overall meaning in the world. This usage of "knowl- 
edge" is intended wherever the term occurs in the numerous formula- 
tions of mystics; it denotes a practical form of knowledge. Such gnosis is 
basically a "possession" of something from which there may be derived 
a new practical orientation to the world, and under certain circumstances 
even new and communicable items of knowledge. These items will 
constitute knowledge of values and non-values within the world. We 
are not interested here in the details of this general problem, but only^ 
in this negative effect upon "action" which can be ascribed to contempla- 
tion, in contrast to asceticism in our sense of the term. 

Panding a more thorough exposition, we may strongly emphasize 
here that the distinction between world-rejecting asceticism and world- 
fleeing contemplation is of course fluid. For world-Seeing contemplation 
must originally be associated with a considerable degree of systematically 
rationalized patterning of life. Only this, indeed, leads to concentration 
upon the boon of salvation. Yet, rationalization is only an instrument for 
attaining the goal of contemplation and is of an essentially negative 
type, consisting in the avoidance of interruptions caused by nature and 



5 4 6 RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

the social milieu. Contemplation does not necessarily become a passive 
abandonment to dreams or a simple self-hypnosis, though it may ap- 
proach these states in practice. On the contrary, the distinctive road to 
contemplation is a very energetic concentration upon certain truths. The 
decisive aspect of this process is not the content of these truths, which 
frequently seems very simple to non-mystics, but rather the type- of 
emphasis placed upon the truths. The mystical truths come to assume 
a central position within, and to exert an integrating influence upon, 
the total view of the world. In Buddhism, no one becomes one of the 
illuminated by explicitly affirming the obviously highly trivial formula- 
tions of the central Buddhist dogma, or even by achieving a penetrating 
understanding of the central dogma. The concentration of thought, 
together with the various other procedures for winning salvation, is 
only & means, not the goal. The illumination consists essentially in a 
unique quality of feeling or, more concretely, in the felt emotional unity 
of knowledge and volitional mood which provides the mystic with 
decisive assurance of his religious state of grace. 

For the ascetic too, the perception of the divine through emotion 
and intellect is of central importance; only in his case feeling the divine 
is of a "motor" type, so to speak. This "feel" arises when he is conscious 
that he has succeeded in becoming a tool of his god, through rationalized 
ethical action completely oriented to god. But for the contemplative 
mystic, who neither desires to be nor can be the god's "instrument," but 
desires-only to become the god's "vessel," the ascetic's ethical struggle,, 
whether of a positive or a negative type, appears to be a perpetual exter- 
nalization of the divine in the direction of some peripheral function. 
For this reason, ancient Buddhism recommended inaction as the pre- 
condition for the maintenance of the state of grace, and in any case 
Buddhism enjoined the avoidance of every type of, rational, purposive 
activity, which it regarded as the most dangerous form of secularization. 
On the other hand, the contemplation of the mystic appears to the 
ascetic as indolent, religiously sterile, and ascetically reprehensible self- 
indulgence — a wallowing in self-created emotions prompted by the 
deification of the creaturely. 

From the standpoint of a contemplative mystic, the ascetic appears, 
by virtue of his transcendental self-maceration and struggles, and espe- 
cially by virtue of his ascetically rationalized conduct within the world, to 
be forever involved in all the burdens of created things, confronting in- 
soluble tensions between violence and generosity, between matter-of- 
factness and love. The ascetic is therefore regarded as permanendy 
alienated from unity with god, and as forced into contradictions and 
compromises, that are alien to salvation. But from the converse stand- 



x ] Asceticism, Mysticism and Salvation 5 4 7 

point o£-the ascetic, the contemplative mystic appears not to be thinking 
of god, the enhancement of his kingdom and glory, or the fulfillment of 
his will, hut rather to be thinking exclusively about himself. Therefore 
the mystic lives in everlasting inconsistency, since by reason of the very 
fact that he is alive he must inevitably provide for the maintenance of 
his own life. This is particularly true when the contemplative mystic lives 
within the world and its institutions. There is a sense in which the 
mystic who flees the world is more dependent upon the world than is 
the ascetic. The ascetic can maintain himself as an anchorite, winning 
the certainty of his state of grace through the labors he expends in an 
effort to maintain himself as an anchorite. Not so the contemplative 
mystic. If he is to live consistently according to his theory, he 'oust main- 
tain his life only by means of what nature or men voluntarily donate to 
him. This requires that he live on berries in the woods, which are not 
always available, or on alms. This was actually the case among the most 
consistent Hindu shramanas (and it accounts also for the very strict 
injunction in all bhikshu regulations against receiving anything that has 
not been given freely). 

In any case, the contemplative mystic lives on whatever gifts the 
world may present to him, and he would be unable to stay alive if the 
world were not constandy engaged in that very labor which the mystic 
brands as sinful and leading to alienation from god. For the Buddhist 
monk, agriculture is the most reprehensible of all occupations, because 
it causes violent injury to various forms of life in the soil. Yet the alms 
he collects consist principally of agricultural products. In circumstances 
like these, the mystic's inevitable feeling that he is an aristocrat with 
respect to salvation reaches striking expression, culminating in the 
mystic's abandonment of the world, the unilluminated, and those inca- 
pable of complete illumination, to their inevitable and ineluctable fate. 
It will be recalled that the central and almost sole lay virtue among the 
Buddhists was originally the veneration of the monks, who alone be- 
longed to the religious community, and whom it was incumbent upon 
the laity to support with alms. However, it is a general rule that every 
human being ' acts" in some fashion, and even the mystic perforce acts. 
Yet he minimizes activity just because it can never give him certainty of 
his state of grace, and what is more, because it may divert him from 
union with the divine. The ascetic, on the other hand, finds the certifica- 
tion of his state of grace precisely in his behavior in the world. 

The contrast between the ascetic and mystical modes of behavior 
is clearest when the full implications of world-rejection arid world-flight 
are riot drawn. The ascetic, when he wishes to act within the world, 
that is, to practice inner-worldly asceticism, must become afflicted with a 



5 4 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

sort of happy closure of the mind regarding any question about the 
meaning of the world, for he must not worry about such questions. 
Hence, it is no accident that inner-worldly asceticism reached its most 
consistent development on the foundation of the Calvinist god's absolute 
inexplicability, utter remoteness from every human criterion, and un- 
searchableness as to his motives. Thus, the inner-worldly ascetic is the 
recognized "man of a vocation," who neither inquires about nor finds it 
necessary to inquire about the meaning of his actual practice of a voca- 
tion within the whole world, the total framework of which is not his 
responsibility but his god's.. For him it suffices that through his rational 
actions in this world he is personally executing the will of god, which is 
unsearchable in its ultimate significance. 

On the other hand, the contemplative mystic is concerned with 
perceiving the essential meaning of the world, but he cannot compre- 
hend it in a rational form, for the very reason that he has already con- 
ceived of the essential meaning of the world as a unity beyond all 
empirical reality. Mystical contemplation "has not always resulted in a 
flight from the world in the sense of an avoidance of every contact with 
the social milieu. On the contrary, the mystic may also require of him- 
self the maintenance of his state of grace against every pressure of the 
mundane order, as an index of the enduring character of that very state 
of grace. In that case, even the mystic's position within the institutional 

1 framework of the world becomes a vocation, but one leading in an al- 
v together different direction from any vocation produced by inner-worldly 

^asceticism. 

Neither asceticism nor contemplation affirms the world as such. The * 
ascetic rejects the world's empirical character of creatureliness and ethical 

\irrationaliry, and rejects its ethical temptations. to sensual indulgence, to 
epicurean satisfaction, and to reliance upon natural joys and gifts. But 
at the same time he affirms individual rational activity within the institu- 
tional framework of the world, affirming it to be his responsibility as well 
5k his means for securing certification of his state .of grace. On die other 
Hand, the contemplative mystic living within the world regards action, 
particularly action performed within the world'* institutional framework, 
as in its very nature a temptation against which he must maintain his 

■state of grace. 

The contemplative mystic minimizes his activity by resigning him- 
self to the institutions of the world as it is, and lives in them incognito, 
i so to speak, as those "that are quiet in the land" [Psalms, 35:20] have 
aWays done, since god has ordained once and for all that man must 
live in the world. The activity of the contemplative mystic within the 
wtorld is characterized by a distinctive brokenness,. colored by humility. 



\ 



x ] Asceticism, Mysticism and Salvation 5 4 9 

He is constantly striving to escape from activity in the world back to the 
quietness and inwardness of his god. Conversely, the ascetic, whenever 
he acts in conformity with his type, is certain to become god's instru- 
ment. For this reason the ascetic's humility, which he considers a neces- 
sary obligation incumbent upon a creature of god, is always of dubious 
genuineness. The success of the ascetic's action is a success of the god 
himself, who has contributed to the action's success, or at the very least 
the success is a special sign of divine blessing upon the ascetic and his 
activity. But for the genuine mystic, no success which may crown his 
activity within the world can have any significance with respect to salva- 
tion. For him, his maintenance of true humility within the world is his 
sole warranty for the conclusion that his soul has not fallen prey to the 
snares of the world. As a rule, the more the genuine mystic remains 
within the world, the more broken his attitude toward it becomes, in 
contrast to the proud aristocratic feeling with respect to salvation enter- 
tained by the contemplative mystic who lives apart from the world. 

For the ascetic, the certainty of salvation always demonstrates itself 
in rational action, integrated as to meaning, end, and means, and 
'governed by principles and rules. Conversely, for the mystic who actually 
possesses a subjectively appropriated state of salvation the result of this 
subjective condition may be anomism. His salvation manifests it-' 
self not in any sort of activity but in a subjective condition and its idio- 
syncratic quality. He feels himself no longer bound by any rule of con- 
duct; regardless of his behavior, he is certain of salvation. With this 
consequence of mystical contemplation (with the feeling of n-avra not 
&<miO Paul had to struggle; and in numerous other contexts the aban- 
donment of rules for conduct has been an occasional result of the mystical 
quest for salvation. 

For the ascetic, moreover, the divine imperative may require* of 
human creatures an unconditional subjection of the wodd to the norms 
of religious virtue, and indeed a revolutionary transformation of the 
world for this purpose. In that event, the ascetic wiH emerge from his 
remote and cloistered cell to take -his place in the world as a prophet 
in opposition to the world. But he will always demand of the world an 
ethically rational order and discipline, corresponding to his own method- 
ical self-discipline. Now a mystic may arrive at a similar position in tela-* 
Don to the world. His sense of divine inwardness, the chronic and quiet 
euphoria of his solitary contemplative possession of substantively divine 
salvation, may become, transformed into an acute feeling of sacred pos- 
session by or possession of the god who is speaking in and through him. 
He will then wish to bring eternal salvation to men as soon as they have 
prepared, as the mystic himself has done, a place for god upon earth, 



5 5° RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Cfe. VI 

i.e., in their souls. But in this case the result will be the emergence of 
the mystic as a magician who causes his power to be felt among gods 
and demons; and this may have the practical consequences of the mystic's 
becoming a mystagogue, something which has actually happened very 
often. 

If the mystic does not follow this path towards becoming a mysta- 
gogue, for a variety of reasons which we hope to discuss later, he may 
bear witness to his god by doctrine alone. In that case his revolutionary 
preaching to the world will be chiliastically irrational, scorning every 
thought of a rational order in the world. He will regard the absoluteness 
of his own universal acosmistic feeling of love as completely adequate for 
himself, and indeed regard this feeling as the only one acceptable to his- 
god as the foundation for a mystically renewed community among men, 
because this feeling alone derives from a divine source. The transforma- 
tion of a mysticism remote from the world into one characterized by 
chiliastic and revolutionary tendencies took place frequently, most im- 
pressively in the revolutionary mysticism of the sixteenth-century Bap- 
tists. The contrary transformation has also occurred, as in the conversion 
of John Lilbume to Quakerism. 

To the extent that an inner-worldly religion of salvation is deter- 
mined by contemplative features, the usual result is the acceptance of 
the given social structure, an acceptance that is relatively indifferent to 
the world hut at least humble before it. A mystic of the type of Tauler 
completes his day's work and then seeks contemplative union with his 
god in the evening, going forth to his usual work the next morning, 
as Tauler movingly suggests, in the correct inner state. Similarly, Lap 
Tzu taught that one recognizes the man who has achieved union with 
the Tao by his humility and by his self -depreciation before other men. 
The mystic component in Lutheranism, for which the highest bliss avail- 
able in this worid is the ultimate unto mystica, was responsible (along 
with other factors) for the indifference of the Lutheran church towards 
the external organization of the preaching of the gospel, and also for 
that church's anti-ascetic and traditionalistic character. 

In any case, the typical mystic is never a man of conspicuous social 
activity, nor is he at "'1 prone to accomplish any rational transformation 
of the mundane orde- i the basis of a methodical pattern of life di- 
rected toward external success. Wherever genuine mysticism did give 
rise to communal action, such action was characterized by the acosmism 
of the mystical feeling of love. Mysticism may exert this kind of psycho- 
iogical effect, thus tending — despite the apparent demands of logic — to 
favor the creation of communities Cgemetnschaftsbildeftd). 

The core of the mystical concept of the oriental Christian church 



x } Asceticism, Mysticism and Salvation 5 5 1 

was a firm conviction that Christian brotherly love, when Sufficiently 
strong and pure, must necessarily lead to unity in all things, even in 
dogmatic beliefs. In other words, men who sufficiendy love one, another, 
in the Johannine sense of mystical love, will also think alike "aitd, because 
of the very irrationality of their common feeling, act in a solidary fashion 
which is pleasing to God. Because of this concept, the Eastern church 
could dispense with an infallibly rational authority in matters of doctrine. 
The same view is basic to the Slavophile conception of the community, 
both within and beyond the church. Some forms of this notion were also 
common in ancient Christianity. The same conception is at the basis of 
Muhammad's belief that formal doctrinal authorities can be dispensed 
with. Finally, this conception along with other factors accounts for the 
minimization of organization in the monastic communities of early 
Buddhism. 

Conversely, to the extent that an inner-worldly religion of salvation 
is determined by distinctively ascetical tendencies, it always demands a 
practical rationalism, in the sense of the maximization of rational action 
as such, the maximization of a methodical systematization of the external 
conduct of life, and the maximization of the rational reorganization of 
the worldly arrangements (Ordnungen), whether monastic communities 
or theocracies. 



3. The Decisive Differences Between Oriental and 
Occidental Salvation 

The decisive historical difference between the predominantly oriental 
and Asiatic types of salvation religion and those found primarily in the 
Occident is that the former usually culminate in contemplation and the 
latter in asceticism. The great importance of this distinction, for our 
purely empirical consideration of religions, is in no way diminished by the 
fact that the distinction is a fluid one, recurrent combinations of mystical 
and ascetic characteristics demonstrating that these heterogeneous ele- 
ment may combine, as in the monastic religiosity of the Occident. For our 
concern is with the consequences for action. 

In India, even so ascetical a planned procedure for achieving salva- 
tion as that of the Jain monks culminated in a purely contemplative and 
mystical ultimate goal; and in Eastern Asia, Buddhism became the 
characteristic religion of salvation. In the Occident, on the other hand, 
apart from a few representatives of a distinctive quietism found only in 
modern times, even religions of an explicidy mystical type regularly 



5 5 2 RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [ Ck. V? 

became transformed into an active pursuit of virtue, which was naturally 
ascetical in the main. Stated more precisely, there occurred along the 
way an inner selection of motivations which placed the primary prefer- 
ence upon some type of active conduct, generally a type pointing toward 
asceticism, and which implemented this motivational preference. Neither 
the mystical contemplativeness of St. Bernard and his followers, nor 
Franciscan spirituality, nor the contemplative ,£?ends among the Baptists 
and the Jesuits, nor even the emotional suffusions of Zinzendorf were 
able to prevent either the community or the individual mystic from at- 
tributing superior importance to conduct and to the demonstration of 
grace through conduct, though this was conceptualized very differendy 
in each case, ranging from pure asceticism to attenuated contemplation. 
It will be recalled that Meister Eckehart finally placed Martha above 
Mary, notwithstanding the pronouncements of Jesus. 1 

But to some extent this emphasis upon conduct was characteristic of 
Christianity from the very outset Even in the earliest period, when all , 
sorts of irrational charismatic gifts of the spirit were regarded as the 
decisive hallmark of sanctity, Christian apologetics had already given 
a distinctive answer to the question of how one might distinguish the 
divine origin of the pneumatic achievements of Christ and the Christians 
from comparable phenomena that were of Satanic or demonic origin: 
this answer was that the manifest effect of Christianity upon the morality 
of its adherents certified its divine origin. No Hindu could make this 
kind of statement. 

There are a number of reasons for this basic different between the 
salvation religions, Orient and Occident, but at this point it is only 
necessary to stress the following aspects of the distinction. 

i. The concept of a transcendental, absolutely omnipotent god, im- 
plying the utterly subordinate and creaturely character of the world 
created by him out of nothing, arose in Asia Minor and was imposed 
upon the Occident. One result of this for die Occident was that any 
planned procedure for achieving salvation faced a road that was per- 
manendy closed to any self-deification and to any genuinely mystical 
possession of god, at least in the strict sense of the term, because this 
appeared to be a blasphemous deification of a mere created thing. The 
path to the ultimate pantheistic consequences of the mystical position was 
blocked, this path being always regarded as heterodox. On the contrary, 
salvation was always regarded as having the character of air ethical 
justification before god, which ultimately could be accomplished and 
maintained only by some sort of active conduct within the world. The 
certification of the really divine quality of the mystical possesion of 
salvation (certification before the ultimate judgment of the mystic him- 



x ] Asceticism, Mysticism and Salvation 553 

self) could- be arrived at through the path of activity alone. Activity in 
» turn introduced into mysticism paradoxes, tensions, and the loss of the 
mystic's ultimate union with god. This was spared to Hindu mysticism. 
For the occidental mystic, the world is a "work" which has been created 
and is not simply given for all eternity, not even in its institutions, as 
in the view of the Asiatic mystic. Consequently, in the Occident mystical 
salvation could not be found simply in the consciousness of an absolute 
union with a supreme and wise order of things as the only true being. 
Nor, on the other hand, could a work of divine origin ever be regarded 
in the Occident as a possible object of absolute rejection, as it was in the 
flight from the world characteristic of the Orient. 

2. This decisive contrast between oriental and occidental religions 
is closely related to the character of Asiatic salvation religions as pure 
religions of intellectuals who never abandoned the "meaningfulness" of 
the empirical world. For the Hindu, there was actually a way leading 
direcdy from insight into the ultimate consequences of the karma chain 
of causality, to illumination, and thence to a unity of knowledge and 
action. This way remained forever closed to every religion that faced 
the absolute paradox of a perfect god's creation of a permanendy im- 
perfect world. Indeed, in this latter type of religion, the intellectual 
mastery of the world leads away from god, not toward him. From the 
practical point of view, those instances of occidental mysticism which 
have a purely philosophical foundation stand closest to the Asiatic type. 

3. Further to be considered in accounting for the basic distinction 
between occidental and oriental religion are various practical factors. 
Particular emphasis must be placed on the fact that the Roman Occident 
alone developed and maintained a rational law, for various reasons yet 
to be explained. In the Occident the relationship of man to god became, 
in a distinctive fashion, a sort of legally definable relationship of sub- 
jection. Indeed, the question of salvation can be setded by a sort of legal 
process, a method which was later distinctively developed by Anselm 
of Canterbury, Such a legalistic procedure of achieving salvation could 
never be adopted by the oriental religions which posited an impersonal 
divine power or which posited, instead of a god standing above the 
world, a god standing within a world which is self-regulated by die 
causal chains of karma. Nor could the legalistic direction be taken by 
religions teaching concepts of Tao, belief in the celestial ancestor gods 
of the Chinese emperor, or, above all, belief in the Asiatic popular gods. 
In all these cases the highest form of piety took a pantheistic form, and 
one which turned practical motivations toward contemplation. 

4. Another aspect of the rational character of a methodical procedure 
for achieving salvation was in origin partly Roman, partly Jewish. The 



5 5 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

Greeks, despite all the misgivings of the urban patriciate in regard to the 
Dionysiac cult of intoxication, set a positive value upon ecstasy, both 
the acute orgiastic type of divine intoxication and the milder form of 
euphoria induced primarily by rhythm and music, as engendering an 
awareness of the uniquely divine. Indeed, among the Greeks the ruling 
stratum especially lived with this mild form of ecstasy from their very 
childhood. Since the time when the discipline of the hoplites had be- 
came dominant, Greece had lacked a stratum possessing the prestige 
or the office nobility in Rome. Social relationships in Greece were in 
all respects simpler and less feudal. In Rome the nobles, who constituted 
a rational nobility of office of increasing range, and who possessed whole 
cities and provinces as client holdings of single families, completely 
rejected ecstasy, like the dance, as utterly unseemly and unworthy of a 
nobleman's sense of honor. This is obvious even in the terminology em- 
ployed by the Romans to render the Greek word for ecstasy (efestosis) 
into Latin: superstitio- Cultic dances were performed only among the 
most ancient colleges of priests, and in the specific sense of a round of 
dances, only among the fratres arvales, and then only behind closed 
doors, after the departure of the congregation. Most Romans regarded 
dancing and music as unseemly, and so Rome remained absolutely un- 
creative in these arts. The Romans experienced the same distaste towards 
the naked exercises in the gymna&ion, which the Spartans had created 
as an arena for planned exercise. The Senate proscribed the Dionysiac 
cult of intoxication. The rejection by Rome's world-conquering military- 
official nobility of every type of ecstasy and of all preoccupation with 
individually planned procedures for attaining salvation (which corre- 
sponds closely to the equally strong antipathy of the Confucian bureauc- 
racy towards all methodologies of salvation) was therefore one of the 
sources of a stricdy empirical rationalism with a thoroughly practical 
political orientation. 

As Christian communities developed in the Occident, they found 
this contempt for ecstatic procedures to be characteristic of all religion 
possible on essentially Roman territory. The Christian community of 
Rome in particular adopted this attitude against ecstasy quite consciously 
and consistendy. In no instance did this community accept on its own 
initiative any irrational element, from charismatic prophecy to the great- 
est innovations in church music, into the religion or the culture. The 
Roman Christian community was infinitely poorer than the Hellenistic 
Orient and the community of Corinth, not only in theological thinkers 
but also, as the sources seem to suggest, in every sort of manifestation 
of the spirit (jpneuma). Whether despite this lack of theology and 
yneuma or because of it, the soberly practical rationalism of Christianity, 



x] - Asceticism, Mysticism and Salvation 555 

the most important legacy of Rome to the Christian church, almost 
everywhere set the tone of a dogmatic and ethical systematization of the 
faith, as is well known. The development of the methods for salvation 
in the Occident continued along similar lines. The ascetic requirements 
of the old Benedictine regulations and the reforms of Cluny ate, when 
measured by Hindu or oriental standards, extremely modest and ob- 
viously adapted to novices recruited from the higher social circles. Yet, 
it is precisely in the Occident that labor emerges as the distinctive mark 
of Christian monasticism, and as an instrument of both hygiene and 
asceticism. This emphasis came to the strongest expression in the starkly 
simple, methodical regulations of the Cistercians. Even the mendicant 
monks, in contrast to their monastic counterparts in India, were forced 
into the service of the hierarchy and compelled to serve rational pur- 
ports shortly after their appearance in the Occident. These rational 
purposes included preaching, the supervision of heretics, and systematic 
charity, which in the Occident was developed into a regular enterprise 
(Betrieb'). Finally, the Jesuit order expelled all the unhygienic elements 
of the older asceticism, becoming the most completely rational discipline 
for the purposes of the church. This development is obviously connected 
with the next point we are to consider. 

5. The occidental church is a uniformly rational organization with 
a monarchical head and a centralized control of piety. That is, it is 
headed not only by a personal transcendental god, but also by a ter- 
restrial ruler of enormous power, who actively controls the lives of his 
subjects. Such a figure is lacking in the religions of Eastern Asia, partly 
for historical reasons, partly because of the nature of the religions in 
question. Even Lamaism, which has a strong organization, does not have 
the rigidity of a bureaucracy, as we shall see later. The Asiatic hierarchs 
in Taoism and the other hereditary patriarchs of Chinese and Hindu 
sects were always partly mystagogues, partly tht objects of anthropolatric 
veneration, and partly — as in the cases of the Dalai Lama and Tashi 
Lama — the chiefs of a completely monastic religion of magical charac- 
ter. Only in the Occident, where the monks became the disciplined 
army of a rational bureaucracy of office, did other-worldly asceticism 
become increasingly systematized into a methodology of active, rational 
conduct of life. 

Moreover, only in the Occident was the additional step taken — by 
ascetic Protestantism — of transferring rational asceticism into the life 
of the world. The inner-worldly order of dervishes in Islam cultivated a 
planned procedure for achieving salvation, but this procedure, for all its 
variations, was oriented ultimately to the mystical quest for salvation of 
the Sufis. This search of the dervishes for salvation, deriving from 



5 5 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

Indian and Persian sources, might have orgiastic, spiritualistic, or con- 
templative characteristics in different instances, but in no case did it 
constitute "asceticism" in the special sense of that term which we have 
employed. Indians have played a leading role in dervish orgies as far 
afield as Bosnia [cf. ix:$ above]. The asceticism of the dervishes is not, 
like that of ascetic Protestants, a religious ethic of vocation, for the 
religious actions of the dervishes have very little relationship to their 
secular occupations, and in their scheme secular vocations have at best 
a purely external relationship to the planned procedure of salvation. 
Even so, the procedure of salvation might exert direct effects on one's 
occupational behavior. The simple, pious dervish is, other things being 
equal, more reliable than a non-religious man, in the same way that the 
pious Parsee is prosperous as a businessman because of his strict ad- 
herence to the rigid injunction to be honest. 

- But an unbroken unity integrating in systematic fashion an ethic 
of vocation in the world with assurance of religious salvation was the 
unique creation of ascetic Protestantism alone. Furthermore, only in the 
Protestant ethic of vocation does the world, despite all its creaturely im- 
perfections, possess unique and religious significance as the object 
through which one fulfills his duties by rational behavior according to 
the will of an absolutely transcendental god. When success crowns 
rational, sober, purposive behavior of the sort not oriented to worldly 
acquisition, such success is construed as a sign that gods blessing rests 
upon such behavior. This innerworldly asceticism had a number of 
distinctive consequences not found in any other religion. This religion 
demanded of the believer, not celibacy, as in case of the monk, but the 
avoidance of all erotic pleasure; not poverty, but the elimination of all 
idle and exploitative enjoyment of unearned wealth and income, and 
the avoidance of all feudalistic, sensuous ostentation of wealth; not the 
ascetic death-in-life of the cloister, but an alert, rationally controlled 
patterning of life, and the avoidance of all surrender to the beauty of 
the world, to art, or to one's own moods and emotions. The clear and 
uniform goal of this asceticism was the disciplining and methodical 
organization of conduct. Its typical representative was the "man of a 
vocation" or "professional" (BerufsmenscK), and its unique result was 
the rational organization of social relationships. 



NOTES 

i. See Meister Ecfcehart (b. c. 1260, & 1327), Schriften (Diisseldorf: 
Diederichs, 1959), Hermann Biittner, bans, and ed., p. ajpff.; this is his sermon 
on Luke 10:38. - 



as ] Soteriology or Solvation from Outside 557 

XI 

Soteriology or Salvation from Outside 



1 . Salvation Through the Savior's Incarnation and 
Through Institutional Grace 

Another view regarding the attainment of salvation rejects the indi- 
vidual's own labors as completely inadequate for the purpose of salva- 
tion. From this point of view, salvation is accessible only as a conse- 
quence of the achievement of some greatly endowed hero, or even the 
achievement of a god who has become incarnate for this ve^ purpose 
and -whose grace will redound to the credit of his devotees, ex Of ere 
operate Grace might become available as a- direct effect of magical 
activities, or it might be distributed to men out of the excess of grace 
which had accumulated as a result of the human or divine savior's 
achievements. 

Beliefs in salvation through the abundant grace accumulated by a 
hero's or incarnate god's achievement was aided by the evolution of 
soteriological myths, above all myths of the struggling or suffering god, 
who in his various possible manifestations had become incarnate and 
descended upon earth or even traveled into the realm of the dead. In- 
stead of a god of nature, particularly a sun god who struggles with other 
powers of nature, especially with darkness and cold, and having won 
a victory over them ushers in the spring, there now arises on the basis 
of the salvation myths a savior who, like Christ, liberates men from the 
powervoj/he demons. The savior type is further exemplified in the 
Gnostics' seven archons, who save men from enslavement to the astro- 
> logical determinism of fate; 1 and in Gnosticism's savior, who at the com- 
mand of the concealed and gracious god rescues the world from the 
corruption brought upon it by an inferior creator god CDemiurge or 
Jehovah). The savior, as in the case of Jesus, may save men from the 
hard-hearted hypocrisy of the world and its reliance on good works. Or 
again, the salvation may be from the oppressive consciousness of sin, 
arising from man's awareness of the impossibility of filling certain re- 
quirements of the law, as was the case with Paul and, somewhat dif- 
ferently, with Augustine and Luther. Finally, the salvation may be from 
the abysmal corruption of the individual's own sinful nature, as in 



5 5 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

Augustine. In all these cases the savior led man upward toward a secure 
haven in the grace and love of a good god. 

To accomplish these purposes the savior must fight with dragons or 
evil demons, depending on the character of the salvation in question. 
In some cases he is not able to engage in such batde right away — he is 
often a child completely pure of sin — and so he must grow up in 
concealment or must be slaughtered by his enemies and journey to the 
realm of the dead in order to rise again and return victorious. From this 
particular belief may develop the view that the death of the savior is a 
tributary atonement for the power achieved over the souls of men by 
the devil as a result of men's sins. This is the view of earliest Christian- 
ity. Or the death of the savior may be viewed as a means of mollifying 
the wrath of god, before whom the savior appears as an intercessor for 
men, as in the cases of Christ, Muhammad, and other prophets and 
saviors- Again, the savior may, like the ancient bearer of salvation in 
magical religions, bring man forbidden knowledge of fire, technical arts, 
writing, or possibly the lore requisite for subjugating demons in this 
world or on the way towara heaven, as in Gnosticism. Finally, the de- 
cisive achievement of the savior may be contained, not in his concrete 
struggles and sufferings, but in the ultimate metaphysical root of the 
entire process. This ultimate metaphysical basis would of course be the 
incarnation of a god as the only device for bridging the gap between god 
and his creatures. This metaphysical conception constituted the culmi- 
nation of Greek speculation about salvation, in Athanasius. The incarna- 
tion of god presented men with the opportunity to participate signifi- 
cantly in god, or as Irenaeus had already phrased it, "enabled men to, 
become gods." The post-Athanasian philosophical formula for this was 
that god, by becoming incarnate, had assumed the esience (in the 
Platonic sense) of humanity. This formula points up the metaphysical 
significance of the concept of homoousios [i.e., of the Son who is "of the 
same substance" as the Father, the formulation of the Nicaean Creed]. 

According to another view, the god might not be content with one 
single act of incarnation, but as a result of the permanence of the world, 
which is practically axiomatic in Asiatic thought, he might become in- 
carnate at various intervals or even continuously. Belief in continuous 
incarnation is the principal force of the Mahayana Buddhist idea of the 
Bodhisattva, though this idea is related to occasional utterances of the 
Buddha himself, in which he apparently expressed a belief in the limited 
duration of his doctrine on earth. Furthermore, the Bodhisattva was oc- 
casionally represented as a higher ideal than the Buddha, because the 
Bodhisattva forgoes his own entrance into Nirvana, which has only 
exemplary significance, to prolong his universal function in the service 



xi ] Soteriohgy or Salvation from Outside 559 

of mankind. Here again, the savior "sacrifices" himself. But just as Jesus 
was superior in his own time to the saviors of other competing soterio- 
Iogical cults, by virtue of the fact that he had been an actual person 
whose resurrection had been observed by his apostles, so the continu- 
ously corporeal and living incarnation of god in the Dalai Lama is the 
logical conclusion of every incarnation soteriology. But even when the 
divine distributor of grace lives on as an incarnation, and especially 
when he does not linger continuously on earth, certain more tangible 
means are required to maintain the adherence of the mass of the faith- 
ful, who wish to participate personally in the gifts of grace made avail- 
able by their god. It is these more tangible instruments of grace, ex- 
hibiting a wide variety, which exert a decisive influence on the character 
of the religion. 

Of an essentially magical nature is the view that one may incorporate 
divine power into himself by the physical ingestion of some divine sub- 
stance, some sacred totem ic animal in which a mighty spirit is incar- 
nated, or some host that has been magically transformed into the body 
S>f a god. Equally magical is the notion that through participation in 
certain mysteries one may direcdy share the nature of the god and there- 
fore be protected against evil powers. This is the case of sacramental 
grace. 

Now the means of acquiring these divine blessings may take either 
a magical or a ritualistic form, and in either case they e*ntail, not only 
belief in the savior or the incarnate living god, but also the existence of 
human priests or mystagogues. Moreover, the manner in which this 
divine grace is distributed depends in considerable measure on whether 
certifying proofs of the personal possession of charismatic gifts of grace 
are required of th^e earthly intermediaries between man and the 
savior. If certifying proofs are required, a religious functionary who 
no longer shares in such a state of grace, as for example a priest living 
in mortal sin, cannot legitimately mediate this grace by officiating at 
the sacraments. Such a strict consistency in the principle of charismatic 
distribution of grace was maintained by the Montanists, Donatists, and 
in general all those religious communities of Antiquity that based the 
organization of their church on the principle of prophetic-charismatic 
leadership. The outcome of this view was that not every bishop who 
occupied an office or possessed other credentials, but only those bishops 
who manifested the verification of prophecy or other witnesses of the 
spirit, could effectively distribute divine grace. This was at least the 
case when what was required was the distribution of grace to a penitent 
who had fallen into mortal sin. 

When we leave this requirement, we are dealing with an altogether 



560 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ch. VI 

different notion of the distribution of grace. Now salvation supervenes 
by virtue of the grace which is distributed on a continuous basis by 
some institutional organization that has either divine or prophetic cre- 
dentials for its establishment For this type of operation we shall reserve 
the appellation of "institudbnal grace" (.Anstdtsgnade). The institution 
may exert its power directly through purely magical sacraments or 
through its control over the accumulation of supernumerary achieve- 
ments performed by officials or devotees, achievements which produce 
divine blessing or grace. 

Wherever institutional grace operates consistendy, three basic prin- 
ciples are involved. The first is extra ecclesiam nulla $alus: salvation 
cannot be obtained apart from membership in a particular institution 
vested with the control of grace. The second principle is that it is not 
the personal charismatic qualification of the priest which determines the 
effectiveness of his distribution of divine grace. Third, the personal reli- 
gious qualification of the individual in need of salvation is altogether a 
matter of indifference to the institution which has the power to dis- 
tribute religious grace- That is, salvation is universal; it is accessible to 
other than the religious virtuosi. Indeed the religious virtuoso may easily 
fall into spiritual danger with respect to chances of salvation and the 
genuineness of his religious profession — and actually cannot faikto fall 
into this danger — if instead of relying ultimately on institutional grace 
he seeks to attain grace by his own unaided power, treading his own 
pathway to God. In this theory, all human beings are capable of finding 
salvation if they but obey god's requirements enough for the accession 
of grace distributed by the church to suffice for their attainment of sal- 
vation. The level of personal ethical accomplishment must therefore be 
made compatible with average human qualifications, and this in practice 
means that it will be set quite low. Whoever can achieve more in the 
ethical sphere, ie., the religious virtuoso, may thereby, in addition to 
insuring his own salvation, accumulate good works for the credit of the 
institution, .which will then distribute them to those in need of good 
works. 

The viewpoint we have just described is the specific attitude of the 
Catholic church and determines its character as an institution of grace, 
which developed throughout many centuries but has been fixed since 
the time of Gregory the Great £ca. 600]. In practice, however, the 
viewpoint of the Catholic church has oscillated between a relatively 
magical and a relatively ethical and soteriological orientation. 

The manner in which the dispensation of charismatic or of institu- 
tional grace influences the actual conduct of life of the adherents depends 
upon the preconditions which are attached to the granting or the means 



w ] _ Soteriology or Salvation from Outside 561 

of grace. Thus there are similarities here to ritualism, to which sacra- 
mental and institutional grace dispensation accordingly show close af- 
finity. Ethical religiosity is affected in the same direction in yet another 
respect, which may be of considerable significance; Every type of actual 
dispensation of grace by a person, regardless of whether his authority 
derives from personal charismatic gifts or his official status within an 
institution, has the net effect of weakening the demands of morality 
upon the individual, just as does ritualism. The vouchsafing of grace 
always entails an inner release of the person in need of salvation; it 
consequently facilitates his capacity to bear guilt and, other things being 
equal, it largely spares him the necessity of developing an individual 
pattern of life based on ethical foundations. The sinner knows that he 
may always receive absolution by engaging in some occasional religious 
practice or by performing some religious rite. It is particularly important 
that sins remain discrete actions, against which other discrete deeds may 
be set up as compensations or penances. Hence, value is attached to con- 
* crete individual acts rather than to a total personality pattern produced 
by asceticism, contemplation, or eternally vigilant self-control, a pattern 
that must constantly be demonstrated and determined anew. A further 
consequence is that no need is felt to attain the certitude salutis by one's 
own powers, and so this category, which may in other circumstances have 
such significant ethical consequences, recedes in importance. 

For the reasons just discussed, the perpetual control of an individ- 
ual's life pattern by the official — whether father confessor or spiritual di- 
rector — empowered to distribute grace, a control that in certain respects 
is very effective, is in practice very often cancelled by the circumstance 
that there is always grace remaining to be distributed anew. Certainly the 
institution- of the confessional, especially when associated with penances, 
is ambivalent in its effects, depending upon the manner in which it is 
implemented. The poorly developed and rather general method of con- 
fession which was particularly characteristic of the Russian church, 
frequendy taking the form of a collective admission of iniquity, was cer- 
tainly no way to effect any permanent influence over conduct. Also, the 
confessional practice of the early Lutheran church was undoubtedly 
ineffective. The catalog of sins and penances in the Hindu sacred scrip- 
tures makes no distinction between ritual and ethical sins, and enjoins 
ritual obedience (or other forms of compliance which are in line with 
the status interests of the Brahmins) as virtually the sole method of 
atonement. As a consequence, the pattern of everyday life could be in- 
fluenced by these religions only in the direction of traditionalism. In- 
deed, the sacramental grace of the Hindu gurus even further weakened 
any possibility of ethical influence. 



562 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

The Catholic church in the Occident carried through the Chris- 
n'anizatioh of Western Europe with unparalleled force, by virtue of an 
unexampled system of confessionals and penances, which combined the 
techniques of Roman law with the Teutonic conception of fiscal expia- 
tion (.Wergeld'). But the effectiveness of this system in developing a 
rational plan of life was quite limited, even apart from the inevitable 
hazards of a loose system of dispensations, Even so, the influence of 
the confessional upon conduct is apparent "statistically," as one might 
say, in the impressive resistance to the twochildren-per-family system 
among pious Catholics, though the limitations upon the power of the 
Catholic church in France are evident even in this respect. 

A tremendous historical influence was actually exerted by the ab- 
sence in Judaism and ascetic Protestantism of anything like the con- 
fessional, the dispensation of grace by a human being, or magical sacra- 
mental grace. This historical influence favored the evolution of an 
ethically rationalized pattern of life (ethisch rationalen LebensgestaU 
tung) in both Judaism and ascetic Protestantism, despite their differ- 
ences in other respects. These religions provide no opportunity, such as 
the confessional or the purveyance of institutional grace, for obtaining 
release from sins. Only the Methodists maintained at* certain of their 
meetings, the socalled "assemblages of the dozens," a system of con- 
fessions which had even comparable effects, and in that case the effects 
were in an alvjgether different direction. From such public confessions 
of sinfulness there developed the semi-orgiastic penitential practices of 
the Salvation Army. 

Institutional grace, by its very nature, ultimately and notably tends 
to make obedience a cardinal virtue and a decisive precondition of salva- 
tion. This of course entails subjection to authority, either of the institu- 
tion or of the charismatic personality who distributes grace. In India, 
for example, the guru may on occasion exercise unlimited authority. In 
such cases the resulting pattern of conduct i; not a systematization from 
withinj radiating out from a center which the individual himself has 
achieved, but rather is nurtured from some center outside the self. The 
content of the pattern of life is not apt to be pushed in the direction of 
ethical systematization, but rather in the reverse direction. 

Such external authority, however, increases the elasticity of concrete 
sacred commandments and thus makes it easier to adjust them in prac- 
tice to changed external circumstances, though in a direction different 
from that of a Gesinnungsethik. An example of this elasticity is provided 
by the Catholic church of the nineteenth century in its non-enforcement 
(in practice) of the prohibition against usury, despite the prohibition's 
ostensibly eternal validity on the basis of biblical authority and papal 



xi ] __ Soteriohgy or Salvation from Outside $ 6 3 

decretals. To be sure, this was not accomplished openly by outright in- 
validation, which would have been impossible, but by an innocuous 
directive from the Vatican office to the confessional priests that thence- 
forth they should refrain from inquiring during confession concerning 
infractions of the prohibition against usury, and that they should grant 
absolution for this infraction as long as it could be taken for granted 
that if the Holy See should ever return to the older position the con- 
fessants would obediendy accept such a reversal. There was a period in 
France when the clergy agitated for a similar treatment of the problem 
presented by families having only two children. Thus, the ultimate re- 
ligious value is pure obedience to the institution, which is regarded as 
inherendy meritorious, and not concrete, substantive ethical obligation, 
nor even the qualification of superior moral capacity achieved through 
one's own methodical ethical actions. Wherever the pattern of institu- 
tional grace is carried through consistently, the sole principle integrating 
the life pattern is a formal humility of obedience, which like mysticism 
produces a characteristic quality of brokenness or humility in the pious. 
In this respect, the remark of Mallinckrodt that the freedom of the 
Catholic consists in being free to obey the Pope appears to leave universal 
validity for systems of institutional grace. 1 " 



. 2 . Salvation Through Faith Alone and Its Anti- 
Intellectual Consequences 

Salvation, however, may be linked with faith. Insofar as this concept 
is not defined as identical with subjection to practical norms, it always 
presupposes some attribution of truth to certain metaphysical data and 
some development of dogmas, the acceptance of which becomes the 
distinctive hallmark of membership in the particular faith. We have 
already seen that dogmas develop in very different degrees within the 
various religions. However, some measure of doctrine is the distinctive 
differential of prophecy and priestly religion, in contrast to pure magic. , 
Of course even pure magic presupposes faith in the magical power of 
the magician, and, for that matter, the magician's own faith in himself 
and his ability. This holds true of every religion, including early Chris- 
tianity. Thus, Jesus taught his disciples that since they doubted their 
own power they would be unable to cure victims of demonic possession. 
Whosoever is completely persuaded of his own powers possesses a faith 
that can move mountains. On -the other hand, the faith of those who 
demand magical miracles exercises a compulsive influence upon magic, 



564 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

to this very day. So Jesus found himself unable to perform miracles in 
his birthplace and occasionally in other cities, and "wondered at their 
disbelief." He repeatedly declared that he was able to heal the crippled 
and those possessed by demons only through their belief in him and his 
power [ML 10:51-52]. To some degree this faith was sublimated in an 
ethical direction. Thus, because the adulterous woman believed in his 
power to pardon sins, Jesus was able to forgive her iniquities. 

On the other hand, religious faith developed into an assertion of in- 
tellectual propositions which were products of ratiocination, and this is 
what primarily concerns us here. Accordingly, Confucianism, which 
knows nothing of dogma, is not an ethic of salvation. In ancient Islam- 
and ancient Judaism, religion made no real .demands with respect to 
dogma, requiring only, as primeval religion does everywhere, belief in 
the power (and hence also in the existence) of its own god, now re- 
garded by it as the only god, and in the mission of this god's prophets. 
But since both these religions were scriptural (in Islam the Koran 
was believed to have been divinely created), they also insisted upon 
belief in the substantive truth of the scriptures. Yet, apart from their 
cosmogonic, mythologic, and historical narratives, the biblical books of 
the law and the prophets and the Koran contain primarily practical 
commandments and do not inherently require intellectual views of a 
definite kind. 

Only in the non-prophetic religions is belief equivalent to sacred 
lore. In these religions the priests are still, like the magicians, guardians 
of mythological and cosmogonic knowledge; and as sacred bards they 
are also custodians of the heroic sagas. The Vedic and Confucian ethics 
attributed full moral efficacy to the traditional literary educations obtained 
through schooling which, by and large, was identical with mere mem- 
orized knowledge. In religions that maintain the requirement of in- 
tellectual understanding there is an easy transition to the philosophical 
or gnostic form of salvation. This transition tends to produce a tre- 
mendous gap between the fully qualified intellectuals and the masses. 
But even at this point there is still no real, official dogmatics — only 
philosophical opinions regarded as more or less orthodox, e.g., the ortho- 
dox Vedanta or the heterodox Sankkya in Hinduism. 

But the Christian churches, as a consequence of the increasing in- 
trusion of intellectualism and the growing opposition to it, produced an 
unexampled mass of official and binding rational dogmas, a theological 
faith. In practice it is impossible to require both belief in dogma and the 
universal understanding of it. It is difficult for us today to imagine that 
a religious community composed principally of petty-bourgeois members 
could have thoroughly mastered and really assimilated the complicated 



xi ] Soterhlogy or Salvation from Outside 565 

contents of the Epistle to the Romans, for example, yet apparently this 
must have been the case. This type of faith embodied certain dominant 
soteriological views current among the group of urban proselytes who 
were accustomed to meditating on the conditions of salvation and who 
were to some degree conversant with Jewish and Greek casuistry. Simi- 
larly, it is well known that in the sixteenth and seventeenth centuries 
broad petty-bourgeois strata achieved intellectual mastery over the dog- 
mas of the Synods of Dort and Westminster, and over the many com- 
plicated compromise formulae of the Reformation churches. Still, under 
normal conditions it would be impossible for such intellectual penetra- 
tion to take place in congregational religions without producing one of 
the following results for all those not belonging to the class of the 
philosophically knowledgeable (Gnostics). These less knowledgeable 
people, including the "hylics" and the mystically unilluminated "psychics," 
would either be excluded from salvation or limited to a lesser-order 
salvation reserved for the non-intellectual pious (pistifeoi)- These results 
occurred in Gnosticism and in the intellectual religions of India. 

A controversy raged in early Christianity throughout its first cen- 
turies, sometimes openly and sometimes beneath the surface, as to 
whether theological gnosis or simple faith (^istis) is the higher religious 
quality, explicidy or implicidy providing the sole guarantee of religious 
salvation. In Islam, the Mu'tazilites held that a person who is "religious" 
in the average sense, and not schooled in dogma, is not actually a mem- 
ber of the real community of the faithful. A decisive influence was every- 
where exerted on the character of religion by the relationships between 
the theological intellectuals, who were the virtuosi of religious knowl- 
edge, and the pious non-intellectuals, especially the virtuosi of religious 
asceticism and the virtuosi of religious contemplation, who equally re- 
garded "dead knowledge" as of negligible value in the quest for salvation. 

Even in the Gospels themselves, the parabolic form of Jesus' message 
is represented as being purposefully esoteric. To avoid the appearance 
s of an esotericism propagated by an intellectualist aristocracy, religious 
faith must base itself upon something other than a real understanding 
and affirmation of a theological system of dogma. As a matter of fact, 
every prophetic religion has based religious faith upon something other 
than real understanding of theology, either at the very outset or at a later 
stage when it has become a congregational religion and has generated 
dogmas. Of course the acceptance of dogmas is always relevant to reli- 
gious faith, except in the views of ascetics and more especially mystical 
virtuosi. But the explicit, personal recognition of dogmas, for which the 
technical term in Christianity is fides explicita, was required only with 
reference to those articles of faith which were regarded as absolutely 



566 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ CJl. VI 

essential, greater latitude being permitted in regard to other dogmas. 
Protestantism made particularly strict demands upon belief in dogma, 
because of its doctrine of justification by faith. This was especially, 
though not exclusively, true of ascetic Protestantism, which regarded the 
Bible as a codification of divine law. This religious requirement was 
largely responsible for the intensive training of the youth of the Prot- 
estant sects and for the establishment of universal public schools like 
those of the Jewish tradition. This same religious requirement was the 
underlying reason for the familiarity with the Bible on the part of the 
Dutch and Anglo-Saxon Pietists and Methodists (in contrast to the 
conditions prevalent in the English public schools, for example), which 
aroused the amazement of travelers as late as the middle of the nine-' 
teenth century. Here, the people's conviction about the unequivocally 
dogmatic character of the Bible was responsible for the far-reaching 
demand that each man know the tenets of his own faidi. In a church 
rich in dogmas, all that may be legitimately required in respect to the 
mass of dogmas is fides imflicita, viz., a general readiness to subject one's 
own convictions to religious authority. The Catholic church has required 
this to the greatest possible degree, and indeed continues to do so. But 
a fides implicita is no longer an actual personal acceptance of dogmas; 
rather, it is a declaration of confidence in and dedication to a prophet or 
to the authority of an institution. In this way, faith loses its intellectual 
character. 

Religion retains Wily a secondary interest in intellectual matters once 
religious ethics has become predominandy rational. This happens be- 
cause the mere assertion of intellectual propositions falls to the lowest 
level of faith before a Gesinnungsetkik, as Augustine among others 
maintained. Faith must also take on a quality of inwardness. Personal 
attachment to a particular god is more than knowledge and is therefore 
designated as "faith." This is the case in both the Old and New Testa- 
ments. The faith which was "accounted to Abraham to righteousness" was 
no intellectual assertion of dogmas, but a reliance upon the promises of 
God. For both Jesus and Paul, faith continued to hold the same central 
significance. Knowledge and familiarity with dogmas receded far into 
the background. 

In a church organized as an institution, it works out in practice that 
the requirement of fides explicita is limited to priests, preachers, and 
theologians, all of whom have been trained in dogmatics. Such an aris- 
tocracy of those trained and knowledgeable in dogmatics arises within 
every religion that has been systematized into a theology. These persons 
presendy claim, in different degrees and with varying measures of suc- 
cess, that they are the real carriers of the religion. The view that the 



xi ] Soteriotogy or Salvation from Outside 567 

priest must demonstrate his capacity to understand more and believe 
more than is possible for the average human mind is still widely diffused 
today, particularly among the peasantry. This is only one of the forms in 
which there comes to expression in religion the status qualification re- 
sulting from special education that is found in every type of bureaucracy,, 
be it political, military, ecclesiastical, or commercial. But even more. 
fundamental is the aforementioned doctrine, found also in the New 
Testament, of faith as the specific charisma of an extraordinary and 
purely personal reliance upon god's providence, such as the shepherds of 
souls and the heroes of faith must possess. By virtue of this charismatic 
confidence in god's support, the spiritual representative and leader of 
the congregation, as a virtuoso of faith, may act differently from the 
layman in practical situations and bring about different results, far 
surpassing normal human capacity. In the context of practical action, 
faith can provide a substitute for magical powers. 

This anti-radona! inner attitude characteristic of religions of un- 
limited trust ift god may occasionally produce an acosmistic indifference 
to obvious practical and rational considerations. It frequently produces 
an unconditional reliance on god's providence, attributing to god alone 
the consequences of one's own action*, which are interpreted as pleasing 
to god. In Christianity and in Islam, as well as elsewhere, this anti- 
rational attitude is sharply opposed. to knowledge and particularly to 
theological knowledge. Anti-rationality may he manifested in a proud 
virtuosity of faith, or, when it avoids this danger of arrogant deification 
of the creaturely, it may be manifested in an unconditional reSgfous 
surrender and a spiritual humility that requires, above all Ac, the death 
of intellectual pride. This attitude of unconditional trust played a major 
role in ancient Christianity, particularly in the case of Jesus and Paul 
and in the struggles against Greek philosophy, and in modern Chris- 
tianity, particularly in the antipathies, to theology, on the part of the 
mystical spiritualist sects of the seventeenth century in Western Europe 
and of the eighteenth and nineteenth centuries in Eastern Europe. 
■ At some point in its development, every genuinely devout religious 
faith brings about, direcdy or indirectly, that "sacrifice of the intellect" 
in the interests of a trans-intellectual, distinctive religious quality of 
absolute surrender and utter trust which is expressed in the formula 
credo non quod sed quia absurdum est. The salvation religions teaching 
belief in a transcendental god stress, here as everywhere, the inadequacy 
of the individual's intellectual powers when he confronts the exalted 
state of the divinity. Such a turning away from knowledge, based on 
faith in a transcendental god's power to save, is altogether different 
from the Buddhist's renunciation of knowledge concerning the world 



568 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

beyond, which is grounded simply in his belief that such knowledge 
cannot advance contemplation that alone brings salvation. It is also 
altogether different in essence from skeptical renunciation of the possi- 
bility of understanding the meaning of the world, which indeed it is 
inclined to combat much more harshly than it combats the Buddhist 
form of renunciation of knowledge. The skeptical point of view has 
been common to the intellectual strata of every period. It is evident in 
the Greek epitaphs and in the highest artistic productions of the Renais- 
sance, such as the works of Shakespeare; it has found expression in the 
philosophies of Europe, China, and India, as well as in modern intel- 
lectualism. 

Deliberate belief in the absurd, as well a? in triumphant joy ex- 
pressed m the sermons of Jesus over the tact ^hat 'he charisma of faith 
has been granted by God to children and minors ratht r tban to scholars, 
typifies the great tension between this type of salvation i^'igion ?.nd in- 
tellectualism. Nevertheless, this type of religion constantly *eeks to adapt 
intellectualism to its own purposes. As Christianity became increasingly 
penetrated by Greek forms of thought, even in Antiquity but far more 
strongly after the rise of universities in the Middle Ages, it came to 
foster intellectualism. The medieval universities were actually centers for 
the cultivation of dialectics, created to counterbalance the achievements 
of the Roman jurists on behalf of the competing power of the Empire. 

Every religion of belief assumes the existence of a personal god, as 
well as his intermediaries and prophets, in whose favor there must be a 
renunciation of self-righteousness and individual knowledge at some 
point or other. Consequently, religiosity based on this form of faith is 
characteristically absent in the Asiatic religions. We have already seen 
that faith may assume very different forms, depending on the direction 
in which it develops. To be sure, despite all diversities, a striking simi- 
larity to contemplative mysticism characterizes all religions of faith 
oriented to salvation which are found among peaceful groups, though 
it does not characterize ancient Islam and the religion of Yahweh, in 
both of which the primordial trust of the warrior in the tremendous 
power of his own god was still dominant. This similarity to contempla- 
tive mysticism derives from the fact that when the substantive content 
of salvation is envisaged and striven after as redemption, there is always 
at least a tendency for salvation to evolve into a primarily emotional re- 
lationship to the divine, a unto mystica. Indeed, the more systematically 
the "attitudinal" character of the faith is developed, the more easily 
may outright antinomian results ensue, as occurs in every type of mysti- 
cism. 

The great difficulty of establishing an unequivocal relationship be- 



m ] Soter'tology or Salvation from Outside 569 

tween ethical demands and a religion based on faith, i.e., a' genuine 
salvation, religion based on an attitude of utter trust, was already demo 1- 
strated by the Pauline Epistles, and even by certain contradictions in the 
utterances of Jesus, as those utterances are recorded in the tradition. Paul 
struggled continually with the immediate consequences of his own views, 
and with their very complicated implications. The consistent develop- 
ment of the Pauline doctrine of salvation by faith achieved in the Mar- 
cionite doctrines definitively demonstrated the antinomian consequences 
of Paul's teaching. 2 As increasing stress was placed upon salvation by 
faith, there was generally but little tendency for an active ethical ra- 
tionalization of the pattern of life to take place within everyday religion, 
although the opposite was the case for the prophet of such a religion. 
Under certain circumstances, salvation by faith can have directly anti- 
rational effects in concrete cases as well as in principle. A minor illustra- 
tion of this is found in the resistance of many religious Lutherans to 
entering into insurance contracts, on the ground that such action would 
manifest an irreligious distrust of God's providence. The wider im- 
portance of this problem lies in the fact that every rational and planned 
procedure for achieving salvation, every reliance on good works, and 
above all every effort to surpass normal ethical behavior by ascetic 
achievement, is regarded by religion based on faith as a wicked preoccu- 
pation with purely human powers. 

Wherever the conception of salvation by faith has been developed 
consistently, as in ancient Islam, trans-worldly asceticism and especially 
monasticism have been rejected. As a result, the development of belief 
in salvation by faith may directly augment the religious emphasis placed 
upon vocational activity within the world, as actually happened in the 
case of Lutheran Protestantism. Moreover, religion based on faith may 
also strengthen the motivations for a religiously positive evaluation of 
vocations within the world, particularly when such religion also devalues 
the priestly grace of penance and sacrament in favor of the exclusive 
importance of the personal religious relationship to god. Lutheranism 
took this stand in principle from its very outset, and strengthened the 
stand subsequently, after the complete elimination of the confessional. 
The same effect of the belief in faith upon vocational motivations was 
particularly evident in the various forms of Pietism, which were given an 
ascetic cast by Spener and Francke, but which had also been exposed to 
Quaker and other influences of which they themselves were not too well 
aware. 

Moreover, the German word for "vocation" (Berof) is derived from 
the Lutheran translation of the Bible. The positive evaluation of ethical 
conduct within one's worldly calling, as the only mode of life acceptable 



5 7° RELIGIOUS GROUPS (SOCIOLOGY OF relkUOn) [ Ck. VI 

to god, was central in Lutheranism from the very beginning. But in 
Lutheranism, good works did not enter into consideration as the real 
basis for the salvation of the soul, as in Catholicism, nor did good works 
provide the intellectual basis for the recognition that one had been re- 
bom, as in ascetic Protestantism, Instead, certainty of salvation was de- 
rived in Lutheranism from the habitual feeling of hsving found refuge 
in God's goodness and grace. Hence, Lutheranism taught, as its attitude 
toward the world, a patient resignation toward the world's institutional 
structures. In this regard, Lutheranism presents a striking contrast to 
those religions — especially those forms of Protestantism — which required 
for the assurance of one's salvation either a distinctive methodical pat- 
tern of life or a demonstration of good works, such as was known as 
fides efficwc among the Pietists and as amal among the Muslim Kharijis, 
and an equally striking contrast to the virtuosi religions of ascetic sects. 8 

Lutheranism lacks any motivation toward revolutionary attitudes in 
social or political relationships and any inclination toward rational re- 
formist activity. Its teaching requires one to maintain, both within the 
world and against it, the substance of the salvation promised by one's 
faith, but dees not require one to attempt a transformation of the world 
in any rationalized ethical direction. The Lutheran Christian has all 
that is needful for him, if only the word of God is proclaimed pure and 
clear; the remaking of the eternal order of the world and even the 
remaking of the church is a matter of indifference, an adiaphoron. To 
be sure, this emotionalist quality of the faith, which is relatively in- 
different to the world, but in contrast to asceticism also "open" to it^ 
was the product of a gradual development. It is difficult for such an 
emotionalist faith to generate anti-traditionalist, rational patterns of con- 
duct, and it lacks any drive toward the rational control and transforma- 
tion of the world. 

"Faith," in the form known to the warrior religions of ancient Islam 
and of Yahwism, took the form of simple allegiance to the god or to 
the prophet, along the lines that originally characterize all relationships 
to anthropomorphic gods. Faithfulnesses rewarded and disloyalty pun- 
ished by the god. This personal relationship to the god takes on other 
qualities when the carriers of salvation religion become peaceful groups, 
and more particularly when they become members of the middle classes. 
Only then can faith as an instrument of salvation take on the emo- 
tionally tinged character and assume the lineaments of love for the god 
or the savior. This transformation is already apparent in exilic and post- 
exilic Judaism, and is even more strongly apparent in early Christianity, 
especially in the teachings of Jesus and John. God now appears' as a 
gracious master or father of a household. But it is of course a vulgat 



xi ] Soteriohgy or Salvation from Outside 5 7 1 

error to see in the paternal quality of the god proclaimed by Jesus art 
intrusion of non-Semitic religion, on the argument that the gods of the 
(generally Semitic) desert peoples "create" mankind whereas the Greek 
deities "beget" it. For the Christian god neve: fhought of begetting men 
— the phrase "begotten and not created (yt^&Vra ^ irwijfcVro) is pre- 
cisely the distinctive predicate of the irinitarian, deified, Christ which 
sets hira off from humankind; moreover, even though the Christian god 
surrounds mankind with superhuman love, he is by no means a tender 
modem "daddy," but rather a primarily benevolent, yet also wrathful 
and strict, regal patriarch, such as was also the Jewish god. 

In any case, the emotional content of religions of faith may be 
deepened whenever the followers of these religions substitute the view 
that they are children of god for the ascetic view that they are merely 
his instruments. The result may be a strong tendency to seek the integra- 
tion of one's pattern of life in subjective states and in an inner reliance 
upon god, rather than in the consciousness of one's continued ethical 
probation. This tendency may even further weaken the practical, rational 
character of the religion. Such an emotional emphasis is suggested by 
the "language of Canaan" which came to expression with the renaissance 
or Pietism, that whining cadence of typical Lutheran sermons in Ger- 
many which has so often driven strong men out of the church. 

A completely anti-rational effect upon ihe conduct of life is generally 
exerted by religions of faith when the relationship to the god or the 
savioi e:d«Lit$ i:\c trait of passionate devotion, and" consequently when- 
ever the relig.on has a latent or manifest tinge of eroticism. This is ap- 
pment in the masiy varieties of love of god in Sufism, in the Canticles 
type of mysticism of St. Bernard and his followers, in the cult of Mary 
and die Sacred Heart ol Jesus, in other comparable forms of devo- 
tioualisni, and finally m die characteristic manifestations of emotionally 
suffused PwDiia within Lutheranism, <uch as the movement of Zinzen- 
dorf However, its most striking manifestation occurs in the charac- 
teristically Hindu religiosity of love (bkakti) which from the fifth 
and sixth centuries on supplanted the proud and noble intellectualistic 
religion of Buddhism, becoming the popular form of salvation re- 
ligion among the masses of India, particularly in the soteriologic^l 
forms of Vishnuism. In this Hindu ajjgiasity of lore, devotion to 
Krishna, who had been apotheosiaftd from the Mdhabharata to the status 
of a savior, and more especially dievotion to the Krishna child, is raised' 
to a state of erotically tinged devotion. This process takes place through 
the four levels of contemplation: serva** low, friendship lore, filial or 
parental love, and, at the highest level, a piety tinged with definite 
eroticism, after the fashion of the fove of the gopfa (the kwc of Krishna's 



5 7 2 RELICIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

mistresses for him). Since the procedure enjoined by this religion as 
necessary for salvation is essentially hostile to the concerns of everyday 
life, it has always presupposed some degree of sacramental intermedia- 
tion in the achievement of grace, by priests, gurus, or gastrins. In its 
practical effects, this religion is a sublimated counterpart of the Shakri 
religion, which is popular among the lowest social strata in India. The 
religion of Shakri is a worship of the wives of gods, always very close to the 
orgiastic type of religion and not infrequently involving a cult of erotic 
orgies, which of course makes it utterly remote from a religion of pure 
faith, such as Christianity, with its continuous and unshakeable trust 
in God's providence. The erotic element in the personal relationship to 
the savior in Hindu salvation religion may be regarded as largely the 
technical result of the practices of devotion; whereas, in marked contrast, 
the Christian belief in providence is a charisma that must be maintained 
by the exercise of the will of the believer. 



3. Salvation Through Belief in Predestination 

Finally, salvation may be regarded as a completely free, inexplicable 
gift of grace from a god absolutely unsearchable as to his decisions, who 
is necessarily unchanging because of his omniscience, and utterly beyond 
the influence of any human behavior. This is the grace of predestination. 
This conception unconditionally presupposes a transcendental creator 
god, and is therefore lacking in all ancient and Asiatic religions. It is 
also lacking in warrior and heroic religions, since they posit a super- 
divine fate, whereas the doctrine of predestination posits a world order 
or regime which is rational from god's point of view even though it may 
appear irrational to human beings. On the other hand, a religion of 
predestination obliterates the goodness of god, for he becomes a hard, 
majestic king. Yet it shares with religions of fate the capacity for inducing 
nob ;,: ty and rigor in its devotees. It has this effect in spite of the fact, 
or rather because of the fact, that only in respect to this kind of god is 
the complete devaluation of all the powers of an individual s prerequisite 
for his salvation by free grace alone. 

Dispassionate and sober ethical men tike Pebgins might believe in 
the adequacy of their own good works. But among the prophets and 
founders of religions, predestination has been the belief of men animated 
by a drive to establish rationally organized religious power, as in the 
case of Calvin and Muhammad, each of whom felt that the certainty 
of his own mission in the world derived less from ?ny personal perfec- 
tion than from his situation in the world and from god's wilL In other 
cases, eg., Augustine and also Muhammad, the belief in predestination 



xi ] Soteriology or Salvation from Outside 5 7 5 

may arise'as a result of recognizing the necessity for controlling tre- 
mendous passions and feeling that this can be accomplished only, if at 
all, through a power acting upon the individual from without and above. 
Luther, too, knew this feeling during the terribly excited period after 
his difficult struggle with sin, but it receded in importance for him after 
he had achieved a better adjustment to the world. 

Predestination provides the individual who has found religious grace 
with the highest possible degree of certainty of salvation, once he has 
attained assurance that he belongs to the very limited aristocracy of 
salvation who are the elect. But the individual must find certain indices 
(Symptome) by which he may determine whether he possesses this in- 
comparable charisma, inasmuch as it is impossible for him to live on 
in absolute uncertainty regarding his salvation. Since god has deigned 
to reveal at least some positive injunctions for the type of conduct pleas- 
ing to him, the aforementioned indices must reside, in this instance as 
in the case of every religiously active charisma, in the decisive demon- 
stration of the capacity to serve as one of god's instruments in fulfilling 
his injunctions, and that in a persevering and methodical fashion, for 
either one possesses predestined grace or one does not. Moreover, the 
assurance of this grace is not affected by any particular transgressions of 
the individual in question. The ultimate certainty of ones salvation and 
one's continuance in a state of grace, notwithstanding disparate trans- 
gressions which the man predestined to salvation commits in the same 
way that all other sinful creatures commit transgressions, is provided 
by one's knowledge that, despite these particular errors, one's behavior 
is acceptable to god and flows out of an inner relationship based on the 
mysterious quality of grace — in short, salvation is based on a central and 
constant quality of personality. 

Hence, the belief in predestination, although it might logically be 
expected to result in fatalism, produced in its most consistent followers 
the strongest possible motives for acting in accordance with god's pattern. 
Of course this action assumed different forms, depending upon the 
primary content of the religious prophecy. In the case of the Muslim 
warriors of the first generation of Islam, the belief in predestination often 
produced a complete obliviousness to self, in the interest of fulfillment 
of the religious commandment of a holy war for the conquest of the 
world. In the case of the Puritans governed by the Christian ethic, the 
same belief in predestination often produced ethical rigorism, legalism, 
and rationally planned procedures for the patterning of life. Discipline 
acquired during wars of religion was the source of the unconquerable- 
ness of both the Islamic and Cromwellian cavalries. Similarly, inner- 
worldly asceticism and the disciplined quest for salvation in a vocation 
pleasing to God were the sources of the virtuosity in acquisitiveness 



5 74 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ch. VI 

characteristic of the Puritans. Every consistent doctrine of predestined 
grace inevitably implied a radical and ultimate devaluation of all magical, 
sacramental, and institutional distributions of grace, in view of god's 
sovereign will, a devaluation that actually occurred wherever the doc- 
trine of predestination appeared in its full purity and maintained its 
strength. By far the strongest such devaluation of magical and institu- 
tional grace occurred in Puritanism. 

Islamic predestination knew nothing of the "double decree";- it did 
not dare attribute to Allah the predestination of , some people to hell, but 
only attributed to him the withdrawal of his grace from some people, a 
belief which admitted man's inadequacy and inevitable transgression. 
Moreover, as a warrior religion, Islam had some of the characteristics 
of the Greek moira in that it developed far less the specifically ra- 
tional elements of a world order and the specific determination of the 
individual's fate in the world beyond. The ruling conception was that 
predestination determined, not the fate of the individual in the world 
beyond, but rather the uncommon events of this world, and above all 
such questions as whether or not the warrior for the faith would fall in 
battle. ITie religious fate of the individual in the next world was held, 
at least according to the older view, to be adequately secured by the 
individual's belief in Allah and the prophets, so that no demonstration of 
salvation in the conduct of life is needed. Any rational system of ascetic 
control of everyday life was alien to this warrior religion from the outset, 
so that in Islam the doctrine of predestination manifested its power 
especially during the wars of faith and the wars of the Mahdi. The 
doctrine of predestination tended to lose its importance whenever Islam' 
became more civilianized, because the doctrine produced no planned 
procedure for the control of the workaday worid, as did the Puritan 
doctrine of predestination. 

In Puritanism, predestination definitely did affect the fate of the 
individual in the world beyond, and therefore his assurance of salvation 
was determined primarily by his maintenance of ethical integrity in the 
affairs of everyday life. For this reason, the belief in predestination 
assumed greater importance in Calvinism as this religion became more 
bourgeois than it had been at the outset. It is significant that the 
Puritan belief in predestination was regarded by authorities everywhere 
as dangerous to the state and as hostile to authority, because it made 
Puritans skeptical of the legitimacy of all secular power. It is interesting 
to note by way of contrast that in Islam the family and following of 
Umar, who were denounced for their alleged secularism, were followers 
of the belief in predestination, since they hoped to see their dominion, 
which had been established by illegitimate means, legitimized by the pre- 
destined will of Allah . 



« ] Soteriology or Salvation from Outside 575 

Clearly, every use of predestination to determine concrete events in 
history, rather than to secure one's orientation to one's place in the world 
beyond, immediately causes predestination to lose its ethical, rational 
character. The belief in predestination practically always had an ascetic 
effect among the simple warriors of the early Islamic faith, which in the 
realm of ethics exerted largely external and ritual demands, but the 
ascetic effects of the Islamic belief in predestination were not rational, 
and for this reason they were repressed in everyday life. The Islamic 
belief in predestination easily assumed fatalistic characteristics in the 
beliefs of the masses, viz., kismet, and foE this reason predestination did 
not eliminate magic from the popular religion. 

Finally, the Chinese patrimonial bureaucracy, in keeping with the 
character of its Confucian ethic, considered knowledge concerning des- 
tiny or fate to be indissolubly associated with sophistication. On the 
other hand, Confucianism permitted destiny to assume certain fatalistic 
attributes in the magical religion of the masses, though in the religion 
of the educated it assumed approximately a middle position between 
> providence and moira. For just as the vnoira, together with the courage 
to endure it, nurtured the heroic pride of warriors, so also did pre- 
destination feed the "pharisaical" pride of the heroes of middle-class 
asceticism. 

But in no other religion was the pride of the predestined aristocracy 
of salvation so closely associated with the man of a vocation and with the 
idea that success in rationalized activity demonstrates god's blessing as 
in Puritanism (and hence in no other religion was the influence of 
ascetic motivation upon the attitude toward economic activity so strong). 
Predestination too is a belief of virtuosi," who alone can accept the 
thought of the everlasting "double decree." But as this doctrine con- 
tinued to flow into the routine of everyday living and into the religion 
of the masses, its dour bleakness became more and more intolerable. 
Finally, all that remained of it in occidental ascetic Protestantism was a 
vestige, 3 caput ntortuum: the contribution which this doctrine of grace 
made to the rational capitalistic temperament, the idea of the methodical 
demonstration of vocation in one's economic behavior. 

The neo-Calvinism of Kuyper no longer dared to maintain the pure 
doctrine of predestined grace. 4 Nevertheless, the doctrine was never com- 
pletely eliminated from Calvinism; it only altered its form. Under all 
circumstances, the determinism of predestination remained an instru- 
ment for the greatest possible systematization and centralization of the 
Gesinnungsethtk. The "total personality/' as we would say today, has 
been provided with the accent of eternal value by "God's election," and 
not by any individual action of the person in question. 

There is a non-religious counterpart of this religious evaluation, one 



5 7^ • RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ch. VI 

based on a mundane determinism. It is that distinctive type of "guilt" 
and, so to speak, godless feeling of sin which characterizes modern 
secular man precisely because of his own Gesinnungsethik, regardless 
of its metaphysical basis. Not that he has done a particular deed, but 
that by virtue of his unalterable qualities, acquired without his coopera- 
tion, he "is" such that he could commit the deed — this is the secret 
anguish borne by modem man, and this is also what the others, in their 
"pharisaism" (now turned determinism), blame him for. It is a "merciless" 
attitude because there is no significant possibility of "forgiveness," "con- 
trition," or "restitution" — in much the same way that the religious belief 
in predestination was merciless, but at least it could conceive of some 
impenetrable divine rationality. 



NOTES 

i. Cf. Wilhebn Bousset, Hauptprobleme der Gnosis (Gottingen: Vanden- 
hoeck, 1907), ch. I. Since Weber used Eousset's work on Die Religion des Juden- 
tums (1906), it appears likely that Bousset was also one of his major sources on 
gnosticism - 

ra. Hermann Mallinckrodt (1821-74) was one of the founders of the 
Catholic Center Party and one of its most vociferous spokesmen; -he was a member 
of the Reichstag from 1867 until 1871. His sister Pauline founded the congrega- 
tion of the "Sisters of Christian Love." 

2. Cf. Adolf von Hamack, Lehrbuch der Dogmengeschichte (Tubingen: 
Mohr, 1931), vol. I, 292-309. This is the fourth edition of the 1909 publication, 
and another of Weber's major sources. 

3. On the Kharijis, see Chantepie et al., op cit., vol. I, 682ff.; on otnoJ, see 
C. H. Becker, Uhmstudten, vol- 1, 165, 167. (W) 

4. On Abraham Kuyper, Dutch theologian and Minister of the Interior 
(1901-05), see Weber, "The Protestant Sects. . . .," in Gerth and Mills, op, cit., 
452f. 



Xll 

Religious Ethics and the World: Economics 



J g J 



1 ♦ Worldly Virtues and the Ethics of Ultimate Ends 

The more a religion of salvation has been systematized and internal- 
ized in the direction of an ethic of ultimate ends (Gesinnungsethik), 
thegreater becomes its tension in relation to the world. This tension be- 
tween religion and the world appears in a less consistent fashion and less 



arii ] Religions Ethics and the World; Economics 5 7 7 

as a matter of principle, so long as the religion has a ritualistic or le- 
galistic form. In these earlier stages, religions of salvation generally 
assume the same forms and exert the same effects as those of magical 
ethics. That is to say, a salvation religion generally begins by assigning 
inviolable sanctity to those conventions received by it, since all the fol- 
lowers of n particular god are interested in avoiding the wrath of the 
deity, and hence in punishing any transgression of the norms enjoined 
by him. Consequently, once an injunction has achieved the status of a 
divine commandment, it rises out of the circle of alterable conventions 
into the rank of sanctity. Henceforth, the regulations enjoined by the 
religion are regarded, like the arrangements of the cosmos as a whole, as 
eternally valid — susceptible of interpretation, but not of alteration, unless 
the god himself reveals a new commandment. 

In this stage, the religion exercises a stereotyping effect on the entire 
realm of legal institutions and social conventions, in the same way that 
symbolism stereotypes certain substantive elements of a culture and pre- 
scription of magical taboos stereotypes concrete types of relationships to 
human beings and to goods. The sacred books of theHindus, Muslims, 
Parsees and Jews, and the classical books of the Chinese treat legal 
prescriptions in exacdy the same manner that they treat ceremonial and 
ritual norms. The law is sacred law. The dominance of law that has 
been stereotyped by religion constitutes one of the most significant limita- 
tions on the rationalization of the legal order and hence also on the 
rationalization of the economy. 

Conversely, when ethical prophecies have broken through the stereo- 
typed magical or ritual norms, a sudden or a gradual revolution may take 
place, even in the daily order of human living, and particularly in the 
realm of economics. It must be admitted, of course, that there are limits 
to the power of religion in both spheres. It is by no means true that reli- 
gion is always the decisive element when it appears in connection with 
the aforementioned transformation. Furthermore, religion nowhere cre- 
ates certain economic conditions unless there are also present in the 
existing relationships and constellations of "interests certain possibilities 
of, or even powerful drives toward, such an economic transformation. 
It is not possible to enunciate any general formula that will summarize 
the comparative substantive powers of the various factors involved in 
such a transformation or will summarize the manner of their accom- 
modation to one another. 

The needs of economic life make themselves manifest either through 
a reinterpretation of the sacred commandments or through their casuistic 
by-passing. Occasionally we also come upon a simple, practical elimina- 
tion of religious injunctions in the course of the ecclesiastical dispensa- 
tion of penance and grace. One example of this is the elimination 



5 7 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

within the Catholic church of so important a provision as the prohibi- 
tion against usury even in foro conscientiae (concerning which we shall 
have more to say presently), but without any express abrogation, which 
would have been impossible. Probably the same process will take place 
in the case of another forbidden practice, onanismus matrimonudis, viz., 
the limitation of offspring to two children per family. 

The frequent ambivalence or silence of religious norms with respect 
to new problems and practices like the aforementioned results in the 
unmediated juxtaposition of the stereotypes' absolute unalterableness 
with the extraordinary capriciousness and utter unpredictability of the 
same stereotypes' validity in any particular application. Thus, in dealing 
with the Islamic skar'iah it is virtually impossible to assert what is the 
practice today in regard to any particular matter. The same confusion 
obtains with regard to all sacred laws and ethical injunctions that have 
a formal ritualistic and casuistical character, above all die Jewish law. 

But the systematization of religious obligations in the direction of an 
ethic based on inner religious faith (GesinnungsethiJC) produces a situa- 
tion that is fundamentally different in essence. Such systematization 
breaks through the stereotypization of individual norms in order to bring 
about a meaningful total relationship of the pattern of life to the goal of 
religious salvation. Moreover, an inner religious faith does not recognize 
any sacred law, but only a "sacred inner religious state" that may sanc- 
tion different maxims of conduct in different situations, and which is 
thus elastic and susceptible of accommodation. U may, depending on 
the pattern of life it engenders, produce revolutionary consequences 
from within, instead of exerting a stereotyping effect. But it acquires 
this ability to revolutionize at the price of also acquiring a whole complex 
of problems which becomes greatly intensified and internalized. The in- 
herent conflict between the religious postulate and the reality of the 
world does not diminish, but rather increases. With the increasing 
systematization and rationalization of social relationships 2nd of their 
substantive contents, the external compensations provided bv the teach- 
ings of theodicy are replaced by die struggles of particular autonomous 
spheres of life against the requirements of religion. The more intense 
the religious need is, the more the world presents a problem. Let us 
now clarify this matter by analyzing some of the principal conflicts. 

Religious ethics penetrate into social institutions in very different 
ways. The decisive aspect of the religious ethic is not the intensity of its 
attachment to magic and ritual or the distinctive character of the religion 
generally, but is rather its theoretical attitude toward the world. To the 
extent that a religious ethic organizes the world from a religious perspec- 
tive into a systematic, rational cosmos, its ethical tensions with the social 



xii ] Religious Ethics and the World: Economics 5 7 9 

institutions of the world are likely to become sharper and more prin- 
cipled; this is the more true the more the secular institutions (Ordnun- 
gen~) are systematized autonomously. A religious ethic evolves that is 
oriented to the rejection of the world, and which by its very nature com- 
pletely lacks any of that stereotyping character which has been asso- 
ciated with sacred laws. Indeed, the very tension which this religious 
ethic introduces into the human relationships toward the world becomes 
a strongly dynamic factor in social evolution. 



2. Familial Piety, Neighborly Help, and Compensation 

Those cases in which a religious ethic simply appropriates the gen- 
eral virtues of life within the world requite no exposition her£. These gen- 
eral virtues naturally include relationships within the family, truthful- 
ness, reliability, and respect for another person's life and property, includ- 
ing wives. But the accentuation of the various virtues is characteristically 
different in different religions. Confucianism placed a tremendous stress 
on familial piety, n stress which was motivated by belief in magic, in 
view of the importance of the family spirits. This familial piety was 
cultivated in practice by s patriarchal and patrimonial-bureaucratic po- 
litical organization. Confucius, according to a dictum attributed to him, 
regarded "insubordination as more reprehensible than brutality," which 
indicates that he expressly interpreted obedience to family authorities 
very literally as the distinctive mark of all social and political qualities. 
The directly opposite accentuation of general virtues of life is found in 
those more radical types of congregational religion which advocate the 
dissolution of all family ties. "Whosoever cannot hate his father cannot 
become a disciple of Jesus." 

Another example of the different accentuations of virtues is the 
stress placed on truthfulness in the Hindu and Zoroastrian ethics, 
whereas the Decalogue of the Judeo- Christian tradition confines this 
virtue to judicial testimony. Even further from the Hindu and Zoroas- 
trian requirements of truthfulness is the complete recession of the obliga- 
tion of veracity in favor of the varied injunctions of ceremonious pro- 
priety found in the status ethic of the Confucian Chinese bureaucracy. 
Zoroastrianism forbids the torture of animals, as a consequence of the 
founder's campaign against orgiastic religion. Hindu religion goes far 
beyond any other in absolutely prohibiting the slaying of any living 
thing, a position that is based on conceptions of animism and metem- 
psychosis. 

The content of every religious ethic which goes beyond particular 



580 RELICIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

magical prescriptions and familial piety is primarily determined by two 
simple motives that condition all everyday behavior beyond the limits of 
the family, namely, just retaliation against offenders and fraternal assist- 
ance to friendly neighbors. Both are in a sense compensations: the 
offender deserves punishment, the execution of which mollifies anger; 
and conversely, the neighbor is entitled to assistance. There could be no 
question in Chinese, Vedie, or Zoroastrian ethics, or in that of the Jews 
until postexile times, but that an enemy must be compensated with evil 
for the evil he has done. Indeed, the entire social order of these societies 
appears to have rested on just compensation. For this reason and because 
of its accommodation with the world, the Confucian ethic rejected the , 
idea of love for one's enemy, which in China was partly mystical and 
partly based on notions of social utility, as being contrary to the interests 
of the state. The notion of love for one's enemy was accepted by the 
Jews in their postexile ethic, according to the interpretation of Meinhold, 
but only in the particular sense of causing their enemies all the greater 
humiliation by the benevolent attitude exhibited by the Jews. The post- 
exile Jews added another proviso, which Christianity retained, that 
vengeance is the proper prerogative of God, who will the more certainly 
execute it the more man refrains from doing so himself. 

Congregational religion added the fellow worshipper and the com- 
rade in faith to the roster of those to whom the religiously founded 
obligation of assistance applied, which already included the blood- 
brother and the fellow member of clan or tribe. Stated more correctly, 
congregational religion set the co-religionist in the place of the fellow 
clansman. "Whoever does not leave his own father and mother cannot 
become a follower of Jesus." This is also the general sense and context 
of Jesus' remark that he came not to bring peace, but the sword. Out of 
all this grows the injunction of brotherly love, which is especially 
characteristic of congregational religion, in most cases " because it con- 
tributes very effectively to the emancipation from politics] organization. 
Even in early Christianity, for example in the doctrines of Clement of 
Alexandria, brotherly love in its fullest extent was enjoined only within 
the circle of fellow believers, and not beyond. 

The obligation to bring assistance to one's fellow was derived — as 
we saw [Part Two, ch. III: 2]- — -from the neighborhood group. The 
nearest person helps the neighbor because he may one day require the 
neighbor's help in turn. The emergence of the notion of universal love 
is possible only after political and ethnic communities have become con- 
siderably intermingled, and after the gods have been liberated from 
connection with political organizations to become universal powers. The 
extension of the sentiment of love to mclude the followers of alien reli- 



xii ] Religious Ethics and the World: Economics 581 

gions is more difficult when the other religious communities have become 
competitors, each proclaiming the uniqueness of its own god. Thus, 
Buddhist tradition relates that the Jainist monks expressed amazement 
that the Buddha had commanded his disciples to give food to them as 
well as to Buddhist monks. 



3. Alms-Giving, Charity, and the Protection of the Weak 

As economic differentiation proceeded, customs of mutual neighborly 
assistance in work and in meeting immediate needs were transformed 
into customs of mutual aid among various social strata. This process is 
reflected in religious ethics at a very early time. Sacred bards and magi- 
cians, the professional groups which first lost their contact with the soil, 
lived from the bounty of the rich. Consequently, the wealthy who share 
their plenty with religious functionaries receive the praises of the latter 
at all times, while the greedy and miserly have curses hurled at them. 
Under the economic conditions of early, natural agricultural economies, 
noble status is conferred, not just by wealth, but also by a hospitable 
and charitable manner of living, as we shall see later on. Hence, the 
giving of alms is a universal and primary component of every ethical 
religion, though new motivations for such giving may come to the fore. 
Jesus occasionally made use of the aforementioned principle of com- 
pensation as a source of motivation for giving to the poor. The gist of 
this notion was that god would all the more certainly render compensa- 
tion to the giver of alms in the world beyond, smce it was impossible 
for the poor to return the generosity. To this notion was added the 
principle of the solidarity of the brothers in the faith, which under cer- 
tain circumstances might bring the brotherliness close to a communism 
of love. 

In Islam, the giving of alms was one of the five commandments in- 
cumbent upon members of the faith. Giving of alms was the "good 
work" enjoined in ancient Hinduism, in Confucianism, and in early 
Judaism. In ancient Buddhism,! the g-'ving of alms was originally the 
only activity of the pious layman that really mattered. Finally, in ancient 
Christianity, the giving of alms attained almost the dignity of a sacra- 
ment, and even in the time of Augustine faith without alms was not 
regarded as genuine. 

The impecunious Muslim warrior for the faith, the Buddhist monk, 
and the impoverished fellow believers of ancient Christianity, especially 
those of the Christian community in Jerusalem, were all dependent on 
alms, as were the prophets, apostles, and frequendy even the priests of 



582 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

salvation religions. In ancient Christianity, and among Christian sects as 
late as the Quaker community, charitable assistance was regarded as a 
sort of religious welfare insurance, and was one of the most important 
factors in the maintenance of the religious community and in missionary 
enterprises. Hence, when congregational religion lost its initial sectarian 
drive, , charity lest its significance to a greater or lesser degree and 
assumed the character of a mechanical ritual. Still, charity continued to 
survive in principle. In Christianity, even after its expansion, the giving 
of alms remained so unconditionally necessary for the achievement of 
salvation by the wealthy that the poor were actually regarded as a dis- 
tinctive and indispensable "status group" within the church. The render- 
ing of assistance naturally developed far beyond the giving of alms, and 
so the sick, widows, and orphans were again and again described as 
possessing particular religious value. 

The relationships among brothers in the faith came to be charac- 
terized by the same expectations which were felt between friends and 
neighbors, such as the expectations that credit would be extended with- 
out interest and that one's children would be taken care of in time of 
need without any compensation. Many of the secularized organizations 
which have replaced the sects in the United States still make such claims 
upon their members. Above all, the pots- brother in the faith expects 
this kind of assistance and generosity hum the powerful and from his 
own master. Indeed, within certain limitations, the powerful personage's 
own interests dictated that he protect his own subordinates and show 
them generosity, since the security. df his .own income depended ul- 
timately on the good will and cooperation of his underlings, as long as 
no rational methods of control existed- On the other hand, the possibility 
of obtaining help or protection from powerful individuals provided every 
pauper, and notably the sacred bands, wi|h a motive to seek out such 
individuals and praise them for their generosity. Wherever patriarchal 
relationships of power and coercion determined the social stratification, 
but especially in the Orient, the prophetic religions were able, in con- 
nection with the afore-mentioned pundy practical situation, to create 
some kind of protectorate of the weak; i^e., women, children, slaves, etc. 
This is especially true of the Mosaic and Islamic prophetic religion. 

This protection can also be extended to relationship between 
classes. To exploit unscrupulously one's particular class position in rela- 
tion to less powerful neighbors in the manner typical of precapitalist 
times — through the merciless enslavement of debtors and the aggrand- 
izement of land holdings, processes that are practically identical — meets 
with considerable social condemnation and religious censure, as being 
an offense against group solidarity. Similar objections apply to the 



wi ] Religious Ethics and the World: Economics 583 

maximum utilization of one's purchasing power in acquiring consumer 
goods for the speculative exploitation of the critical condition of those in 
less favorable positions. On the other hand, the members of the ancient 
warrior nobility tend to regard as a parvenu any person who has risen 
in the social scale as a result of the acquisition of money. Therefore, 
the kind- of avarice just described is everywhere regarded as abomi- 
nable from the religious point of view. It was so regarded in the Hindu 
legal books, as well as in ancient Christianity and in Islam. In Judaism, 
the reaction against such avarice led to the creation of the characteristic 
institution of a jubilee year in which debts were cancelled and slaves 
liberated, to ameliorate the conditions of one's fellow believers. This 
institution was subsequently construed as the "sabbatical year," a re- 
sult of theological casuistry and of a misunderstanding on the part of 
those pious people whose provenience was purely urban. Every systema- 
tization in the direction of a Gesinnungsethik crystallized from all these 
particular demands the distinctive religious mood or state known as 
"charity" (caritas). 



4. Religious Ethics, Economic Rationality and the 
Issue of Usury 

The rejection of usury appears as an emanation of this central 
religious mood in almost all ethical systems purporting to regulate life. 
Such a prohibition against usury is completely lacking, outside of 
Protestantism, only in the religious ethics which have become a mere 
accommodation to the world, e.g., Confucianism; and in the religious 
ethics of ancient Babylonia and the Mediterranean littoral in which the 
urban citizenry (more particularly the nobility residing in the cities and 
maintaining economic interests in trade) hindered the development of a 
consistent caritative ethics. The Hindu books of canonical law prohibit 
the taking of usury, at least for the two highest castes. Among the Jews, 
collecting usury from "members of the tribe" (Volksgenos$en~) was pro- 
hibited. In Islam and in ancient Christianity, the prohibition against 
usury at first applied only to brothers in faith, but subsequently became 
unconditional. It seems probable that the proscription of usury in Chris- 
tianity is not primary in that religion. Jesus justified the biblical injunc- 
tion to lend to the impecunious on the ground that God will not reward 
the lender in transactions which present no risk. This verse was then 
misread and mistranslated in a fashion that, resulted in the prohibition 
of usury: py&tva inrtkirttorm was mistranslated as p$iy, which in the 
Vulgate became nihil inde sperantes.^ 



584 HBLK3IOUS GROUPS (SOCIOLOGY OF HELIGIOn) [ Ck. VI 

The original basis for the thoroughgoing rejection of usury was 
generally the primitive custom of economic assistance to one's fellows, 
in accordance with which the taking of usury "among brothers" was 
undoubtedly regarded as a serious. breach against the obligation to pro- 
vide assistance. The fact that the prohibition against usury became in- 
creasingly severe in Christianity, under quite different conditions, was 
due in part to various other motives and factors. The prohibition of 
usury was not, as die materialist conception of history would represent it, 
a reflection of the absence of interest on capital under the general condi- 
tions of a natural economy. On the contrary, the Christian church and 
its servants, including the Pope, took interest without any scruples even 
in the early Middle Ages, i.e., in the very period of a natural economy; 
even more so, of course, they condoned the taking of interest by others. 
It is striking that the ecclesiastical persecution of usurious lending arose 
and became ever more intense virtually as a concomitant of the incipient 
development of actual capitalist instruments and particularly of acquisi- 
tive capital in overseas trade. What is involved, therefore, is a struggle 
in principle between ethical rationalization and the process of ration- 
alization in the domain of economics. As we have seen, only in the 
nineteenth century was the church obliged, under the pressure of certain 
unalterable facts, to remove the prohibition in the manner we have 
described previously- 

The real reason for religious hostility toward usury lies deeper and 
is connected with the attitude of religious ethics toward the imperatives 
of rational profitmaking. In early religions, even those which otherwise , 
placed a high positive value on the possession of wealth, purely com* 
mercial enterprises were practically always the objects of adverse judg- 
ment. Nor is this attitude confined to predominandy agrarian economies 
under the influence of warrior nobilities. This criticism is usually found 
when commercial transactions are already relatively advanced, and 
indeed it arose in conscious protest against them. 

We may first note that every economic rationalization of a barter 
economy has a weakening effect on the traditions which support the 
authority of the sacred law. For this reason alone the pursuit of money, 
the typical goal of the rational acquisitive quest, is religiously suspect. 
Consequently, the priesthood favored the maintenance of a natural 
economy (as was apparendy the case in Egypt) wherever the particular 
economic interests of the temple as a bank for deposit and loans under 
divine protection did not militate too much against a natural economy. 

But it is above all the impersonal and economically rationalized (but 
for this very reason ethically irrational) character of purely commercial 
relationships that evokes the suspicion, never clearly expressed but al! 



swi ] Religious Ethics and the World: Economics 585 

the more strongly felt, of ethical religions. For every purely personal 
relationship of man to man, of whatever sort and even including com- 
plete enslavement, may be subjected to ethical requirements and ethi- 
cally regulated. This is true because the structures of these relationships 
depend upon the individual wills of the participants, leaving room in 
such relationships for manifestations of the virtue of charity. But this is 
not the situation in the realm of economically rationalized relationships, 
where personal control is exercised in inverse ratio to the degree of 
rational differentiation of the economic structure. There is no possibility, 
in practice or even in principle, of any caritative regulation of relation- 
ships arising between the holder of a savings and loan bank mortgage 
and the mortgagee who has obtained a loan from the bank, or between 
a holder of a federal bond and a citizen taxpayer. Nor can any caritative 
regulation arise in the relationships between stockholders and factory 
workers, between tobacco importers and foreign plantation workers, 
or between industrialists and the miners who have dug from the earth 
, the raw materials used in the plants Owned by the industrialists. The 
growing impersonality of the economy on the basis of association in the 
market place follows its own rules, disobedience to which entails eco- 
nomic failure and, in the long run, economic ruin. 

Rational economic association always brings about depersonalization, 
and it is impossible to control a universe of instrumentally rational 
activities by charitable appeals to particular individuals. The functional- 
ized world of capitalism certainly offers no support for any such chari- 
table orientation. In it the claims of religious charity are vitiated not 
merely because of the refractoriness and weakness of particular indi- 
viduals, as it happens everywhere, but because they lose their meaning 
altogether. Religious ethics is confronted by a world of depersonalized . 
relationships which for fundamental reasons cannot submit to its 
primeval norms. Consequently, in a peculiar duality, priesthoods have 
time and again protected patriarchalism against impersonal dependency 
relations, also in the interest of traditionalism, whereas prophetic re- 
ligion has broken up patriarchal organizations. However, the more a 
religious commitment becomes conscious of its opposition to economic 
rationalization as such, the more apt are the religion's virtuosi to end up 
with an anti-economic rejection of the world. 

Of course, the various religious ethics have experienced diverse 
fates, because in the world of facts the inevitable compromises had to 
he made. From of old, religious ethics has been directly employed for 
rational economic purposes, especially trie purposes of creditors. This 
was especially true wherever the state of indebtedness legally involved 
only the person of the debtor, so that the creditor had to appeal to the 



586 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [ Ck. VI 

filial piety of the heirs. An example of this practice is the impounding of 
the mummy of the deceased in Egypt [to shame his descendants into pay- 
ing his debts]. Another example is the belief in some Asiatic religions that 
whoever fails to keep a promise, including a promise to repay a loan and 
especially a promise guaranteed by an oath, would be tortured in the next 
world and consequently might disturb the quiet of his descendants by evil 
magic. In the Middle Ages, as Schulte has pointed out, 2 the credit stand- 
ing of bishops was particularly high because any breach of obligation on 
their part, especially of an obligation assumed under oath, might result 
in their excommunication, which would have ruined a bishop's whole 
existence. This reminds one of the credit-worthiness of our lieutenants 
and fraternity students [which was similarly upheld by the efficacy of 
threats to the future career] . 

By a peculiar paradox, asceticism actually resulted in the contradic- 
tory situation already mentioned on several previous occasions, namely 
that it was precisely its rationally ascetic character that led to the ac- 
cumulation of wealth. The cheap labor of ascetic celibates, who underbid 
the indispensable minimum wage required by married male workers, 
was primarily responsible for the expansion of monastic businesses in the 
late Middle Ages. The reaction of the middle classes against the mon- 
asteries during this period was based on the "coolie" economic competi- 
tion offered by the brethren. In the same way, the secular education 
offered by the cloister was able to underbid the education offered by 
married teachers. 

The attitudes of a religion can often be explained on grounds of, 
economic interest. The Byzantine monks were economically chained to 
the worship of icons, and the Chinese monks had an economic interest 
in the products of their workshops and printing establishments. An 
extreme example of this kind is provided by the manufacture of alco- 
holic liquors in modern monasteries, which defies the religious campaign 
against alcohol. Factors such as these- have tended to work against any 
consistent religious opposition to worldly economic activities. Every 
organization, and particularly every institutional religion, requires 
sources of economic power. Indeed, scarcely any doctrine has been 
belabored with such terrible papal curses, especially at the hands of the 
greatest financial organizer of the church, John XXII, as the doctrine that 
Christ requires poverty of his true followers, a doctrine which enjoys 
scriptural authority and was consistently espoused by the Franciscan 
Spirituals (Franziskanerobservanten). 3 From the time of Arnold of 
Brescia and down through the centuries, a whole train of martyrs died 
for this doctrine. 

It is difficult to estimate the practical effect of Christianity's prohibi- 



xii ] Religious Ethics and the World: Economics 587 

tion of usury, and even more difficult to estimate the practical effect of 
Christianity's doctrine with respect to economic acquisition in business, 
viz., deo flctcere non fotest* The prohibitions against usury generated 
legalistic circumventions of all sorts. After a hard struggle, the church 
itself was virtually compelled to permit undisguised usury in the chari- 
table establishments of the monies pietatis when the loans were in the 
interests of the poor; this became definitively established after Leo X 
[151 3-2 1 ] . Furthermore, emergency loans for businesses at fixed rates of 
interest were provided during the Middle Ages by allocating this func- 
tion to the Jews. 

We must note, however, that in the Middle Ages fixed interest 
charges were rare in the entrepreneurial contracts extending business 
credit to enterprises subject to great risk, especially overseas com- 
merce (credit contracts which in Italy also used the property of wards). 
The more usual procedure was actual participation in the risk and profit 
of an enterprise (commenda, dare ad proficuum de mart}, with various 
limitations and occasionally with a graduated scale such as that provided 
in the Pisan Constitutum Usus* Yet the great merchant guilds never- 
theless protected themselves against the protest of usuraria pravitas 
by expulsion from the guild, boycott, or blacklist — punitive measures 
comparable to those taken under our stock exchange regulations against 
protests of contract. The guilds also watched over the personal salvation 
of the souls of their members by providing them with indulgences (as 
did the Florentine Arte di Calimah') and by innumerable testamentary 
gifts of conscience money or endowments. 

The wide chasm separating the inevitabilities of economic life from 
the Christian ideal was still frequently felt deeply. In any case this 
ethical separation kept the most devout groups and all those with the 
most consistently developed ethics far from the life of trade. Above all, 
time and again it tended to attach an ethical stigma to the business 
spirit, and to impede its growth. The rise .of a consistent, systematic, and 
ethically regulated mode of life in the economic domain was completely 
prevented by the medieval institutional church's expedient of grading 
religious obligations according to religious charisma and ethical vocation 
and by the church's other expedient of granting dispensations. (The fact 
that people with rigorous ethical standards simply could not take up a 
business career was not altered by the dispensation of indulgences, nor 
by the extremely lax principles of the Jesuit probabilistic ethics after 
the Counter-Reformation.) A business career was only possible for those 
who were lax in their ethical thinking. 

The inner-worldly asceticism of Protestantism first produced a capi- 
talistic ethics, although unintentionally, for it opened the way to a career 



588 RELIGIOUS GROUTS (SOCIOLOGY OF REIJCIOn) [ Ck. VI 

in business, especially for the most devout and ethically rigorous people. 
Above all, Protestantism interpreted success in business as the fruit of a 
rational mode of life. Indeed, Protestantism, and especially ascetic 
Protestantism, confined the prohibition against usury to clear cases of 
complete selfishness. But by this principle it now denounced interest as 
uncharitable usury in situations which the Roman church itself had, as 
a matter of practice, tolerated, e.g., in the montes pietatis, the exten- 
sion of credit to the poor. It is worthy of note that Christian business 
men and the Jews had long since felt to be irksome the competition 
of these institutions which lent to the poor. Very different was the 
Protestant justification of interest as a legitimate form of participation 
by the provider of capital in the business profits accruing from the 
money he had lent, especially wherever credit had been extended to 
the wealthy and powerful — e.g., as political credit to the prince. The 
theoretical justification of this attitude was the achievement of Salmasius 
[de usuris, 1638]. 

One of the most notable economic effects of Calvinism was its 
destruction of the traditional Forms of charity. First it eliminated un- 
systematic almsgiving. To be sure, the first steps toward the systema- 
tization of charity had been taken with the introduction of fixed rules 
for the distribution of the bishop's Fund in the later medieval church, 
and with the institution of the medieval hospital — in the same way that 
the poor tax in Islam had rationalized and centralized almsgiving. Yet 
random almsgiving had still retained its qualification in Christianity as 
a "good work." The innumerable charitable institutions of ethical re- 1 
ligions have always led in practice to the creation and direct cultivation 
of mendicancy, and in any case charitable institutions tended to make of 
charity a purely ritual gesture, as the fixed number of daily meals in the 
Byzantine monastic establishment or the official soup days of the 
Chinese. Calvinism put an end to all this, and especially to any 
benevolent attitude toward the beggar. For Calvinism held that the 
inscrutable God possessed good reasons for having distributed the gifts 
oF Fortune unequally. It never ceased to stress the notion that a man 
proved himself exclusively in his vocational work. Consequently, beg- 
ging was explicitly stigmatized as a violation cf the injunction to love 
one's neighbor, in this case the person from whom the beggar solicits. 

What is more, all Puritan preachers proceeded from the assumption 
that the idleness of a person capable of work was inevitably his own 
fault. But it was felt necessary to organize charity systematically for 
those incapable of work, such as orphans and cripples, for the greater 
glory of God. This notion often resulted in such striking phenomena as 
dressing institutionalized orphans in uniforms reminiscent of fool's attire 



xii } Religious Ethics and the World: Economics 389 

and parading them through the streets of Amsterdam to divine services 
with the greatest possible fanfare. Care for the poor was oriented to the 
goal of discouraging the slothful. This goal was quite apparent in the 
social welfare program of the English Puritans, in contrast to the 
Anglican program, so well descrihed by H. Levy.* In any case, charity 
itself became a rationalized "enterprise" and its religious significance 
was therefore eliminated or even transformed into the opposite signif- 
icance. This was the situation in consistent ascetic and rationalized 
religions . 

Mystical religions had necessarily to take a diametrically opposite 
path with regard to the rationalization of economics. The foundering of 
the postulate of brotherly love in its collision with the loveless realities 
of the economic domain once it became rationalized led to the expansion 
of love for one's fellow man until it came to require a completely un- 
selectiv;: generosity. Such unselective generosity did not inquire into the 
reason and outcome of absolute self-surrender, into the worth of the 
person soliciting help, or into his capacity to help himself. It asked no 
questions, and quickly gave the shirt when the cloak had been asked for. 
In mystical religions, the individual for whom the sacrifice is made is 
regarded in the final analysis as unimportant and exchangeable; his 
individual value is negated. One's "neighbor" is simply a person whom 
one happens to encounter along the way; he has significance only be- 
cause of his need and his solicitation. This results in a distinctively 
mystical flight from the world which takes the form of a non-specific 
and loving self-surrender, not for the sake of the man hut for the sake 
of the surrender itself — what Baudelaire has termed "the sacred prosti- 
tution of the soul." 



NOTES 

1 . "Do not expect anything from it" instead of "Do not deprive anybody of 
hope." Weber relied on the painstaking analysis of Luke 6:35 by Adalbert Merx, 
Die Evangelien des Markus und Lukas (Berlin: Reimer, 1905), 2.2$&. Weber 
mentions Merx below, ch. XV: io:d; cf. also Economic History, ch. %\ and p. 274. 

2. See Aloys Schulte, Geschickte des mitteMterlichen Handels und Ver- 
kehrs zwischen Westdeutschland und Italien (Leipzig: Dunker & Humblot, 
1900), I, z63ff. 

3. In the 15 th century the Franciscans of the Strict Observance developed 
into a congregation that was privileged over the Conventuals. On these Vranzis- 
kanerobservanten see Religion in Geschichte und Gegenwart (Tubingen 191 o), 
IV. Cf. also Benjamin Nelson, "Max Weber's Sociology of Religion," American 
Sociological Review, 30:4, Aug. 1965, 59&f, On the issue of usury in general, 
see Nelson's follow-up of Weber, The Idea of Usury (New York 1949). 

4. The complete formulation reads: "Home mercator vix aut nun^uam deo 



5 9 O RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

potest placere" — "A merchant can hardly or never please God." The passage be- 
came important through the Decretwn Gratiani (about 1150 A.D.). Cf. Weber, 
Wirtschaftsgesckichte, sec. ed., J. Winckelmann, ed. O958), 305, and Nelson's 
article, loc. cit. 

5. Cf. Weber, Handelsgesellschaften, ch. IV, "Pisa. Das Sozietatsrecht des 
Constirurum Usus," reprinted in GAzSW, 386-4I0. 

6, See Hermann Levy, Economic Liberalism (London: Macmillan, 1913), 
ch. VI; first published in German in 1 902. 



XIU 
Religious Ethics and the World: Politics 



1. 



From Political Subordination to the Anti-Political 
Rejection of the World 

Every religiously grounded unworldly love and indeed every ethical 
religion must, in similar measure and for similar reasons, experience 
tensions with the sphere of political behavior. This tension appears as 
soon as religion has progressed to anything like a status of equality with 
the sphere of political associations. To be sure, the ancient political god 
of the locality, even where he was an ethical and universally powerful 
gcd, existed merely for the protection of the political interests of his 
followers' associations. 

Even the Christian God is still invoked as a god of war and as a 
god of our fathers, in much the same way that local gods were invoked 
in the ancient fdlis. One is reminded of the fact that for centuries 
Christian ministers have prayed along tne beaches of the North Sea 
for a "blessing upon the strand" (i.e., for numerous shipwrecks). On 
its part the priesthood generally depended upon the political association, 
either directly or indirectly. This dependence is especially strong in 
those contemporary churches which derive support from governmental 
subvention. It was particularly noteworthy where the priests were court 
or patrimonial officials of rulers or landed magnates, e.g., the purohita 
of India or the Byzantine court bishops since Constantine. The same 
dependence also arose wherever the priests themselves were either en- 
feoffed feudal lords exercising secular power (e.g., as during the 
medieval period in the Occident), or scions of noble priestly families. 
Among the Chinese and Hindus as well as the Jews, the sacred bards, 
whose compositions were practically everywhere incorporated into the 



jaii ] Religious Ethics and the World: Politics 5 9 1 

scriptures, sang the praises of heroic death ,\ According to the canonical 
books of the Brahmins, a heroic death was as^ much an ideal obligation 
of the Kshatriya caste member at the age when he had "seen the son 
of his son" as withdrawal from the world into the, forests for meditation 
was an obligation of members of the Brahmin caste. Of course, magical 
religion had no conception of a religious war. But for -magical religion, 
and even for the ancient religion of Yahweh, political victory and espe- 
cially vengeance against the enemy constituted the real reward granted 
by god. 

The more the priesthood attempted to organize itself as a^power 
independent of the political authorities, and the "'more rationalized -its 
ethic became, the more this position shifted. The contradiction, within 
the priestly preaching, between brotherliness toward feHoV religionists 
and the glorification of war against outsiders, did not aVa general 'rule 
decisively stigmatize martial virtues arid^eroic cjiiahties, ^TmV "was.so 
because a distinction could be drawn between justed urrjust\\vars. 
However, this distinction was a product of phari§aical thought, which 
was unknown to the old and genuine warrior ethics. '■■ 

Of far greater importance was the rise ofxcohgregatiorial religions 
among politically demilitarized peoples under the octroi o< priests, 'Sych 
as the Jews, and also the rise of large and increasingly important groups 
of people who, though comparatively unwarlike, became^increasirigly 
important for the priests' maintenance of their power positioftxwherever 
they had developed into an independent organization. The priesthood 
unquestioningly welcomed the characteristic virtues of these cU*ss§, 
viz,, simplicity, patient resignation to trouble, humble acceptance" of , 
existing authority, and friendly forgiveness and passivity in the face of 
injustice, especially since .these virtues were useful in establishing the 
ascendancy of an ethical god and of the priests themselves. These vir- 
tues were also complementary to the special religious virtue of the 
powerful, namely magnanimous charity (caritas), since the patriarchal 
donors desired these virtues of resignation and humble acceptance in 
those who benefited from their assistance. 

The more a religion became congregational, the more did political 
circumstances contribute to the religious transfiguration of the ethics of 
the subjugated. Thus, Jewish prophecy, in a realistic recognition of the 
external political situation, preached resignation to the domination by 
the great powers, as a fate apparently desired by God. The domestica- 
tion of the masses was assigned to priests by foreign rulers (for the first 
time systematically by the Persians), and later indigenous rulers fol- 
lowed suit. As religion became more popularized, this domestication 
provided ever stronger grounds for assigning religious value to the 



5 9 z RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI ' 

essentially feminine virtues of the ruled; moreover, the ac vines of the 
priests themselves were distinctively unwarlike and women had every- 
where shown a particular susceptibility to religious stimuli. However, 
this "slave revolt" in the realm of morality, a revolt organized by priests, 
was not the only internal force of pacification. In addition, by its own 
logic, every ascetic, and especially every mystic, quest for individual 
salvation, took this line. Certain typical external situations also con- 
tributed to this development, e.g., the apparentiy senseless changes of 
limited and ephemeral small political power structures in contrast to 
universalistic religions and relatively unitary social cultures such as 
that of India. Two other historical processes operating in the opposite 
direction also contributed to the same development; universal pacifica- 
tion and the elimination of all struggles for power in the great world 
empires, and particularly the bureaucratization of all political dominion, 
as in the Roman Empire. 

All these factors removed the ground from under the political and 
social interests involved in a warlike struggle for power and involved 
in a social class conflict, thus tending to generate an antipolitical rejec- 
tion of the world and to favor the development of a religious ethic of 
brotherly love that renounced all violence. The power of the apolitical 
Christian religion of love was not derived from interests in social reform, 
nor from any such thing as "proletarian instincts," but rather from the 
complete loss of such secular concerns. The same motivation accounts 
for the increasing importance of all salvation religions and congrega- 
tional religions from the first and second century of the [Roman] Imperial 
period. This transformation was carried out, not only or even primarily 
by the subjugated classes with their slave revolt in ethiris, but by edu- 
cated strata which had lost interest in politics because they had lost 
influence or had: become disgusted by politics. 

The altogether universal experience that violence breeds violence, 
that social or economic power interests may combine with idealistic re- 
forms and even with revolutionary movements, and that the employ- 
ment of violence against some particular injustice produces as its ulti- 
mate result the victory, not of the greater justice, but of the greater 
power or cleverness, did not remain concealed, at least not from the 
intellectuals who lacked political interests. This recognition continued 
to evoke the most radical demands for the ethic of brotherly love, i.e., 
that evil should not be resisted by force, an injunction that is common 
to Buddhism and to the preaching of Jesus, But the ethic of brotherly 
love is also characteristic of mystical religions, because their peculiar 
quest for salvation fosters an attitude of humility and self -surrender as a 
result of its minimization of activity in the world and its affirmation 



xiii ] Religions Ethics*and the World: Politics 593 

of the necessity of passing through the world incognito, so to speak, as 
the only proven method for demonstrating salvation. Indeed, from the 
purely psychological point of view, mystical religion must necessarily 
come to this conclusion by virtue of its characteristically acosmistic and 
non-specific experience of love. Every pure intellectualism bears within 
itself the possibility of such a mystical development. 

On the other band, inner-worldly asceticism can compromise with 
the facts of the political power structures by interpreting them as instru- 
ments for the rationalized ethical transformation of the world and for 
the control of sin. It must be noted, however, that the coexistence is by 
no means as easy in this case as in the case where economic acquisitive 
interests are concerned. For public political activity lead*tO a far greater 
surrender of rigorous ethical requirements than is produced by private 
business activity, since political activity is oriented to average human 
qualities, to compromises, to craft, and to the employment of other 
ethically suspect devices and . people, and thereby oriented to the rela- 
tivization of all goals. Thus, it is very striking that under the glorious 
regime of the Maccabees, aftei the first intoxication of the war of libera- 
tion had been dissipated, there arose among the most pious Jews a 
party which preferred alien hegemony to rule by the national kingdom. 
This may be compared to the preference found among some Puritan 
denominations for the subjection of the churches to the dominion of 
unbelievers, because genuineness of religion can be regarded as proven 
only in such churches. In both these cases two distinct motives were 
operative. One was that a genuine commitment in religion could be 
truly demonstrated only in martyrdom; the other was the theoretical 
insight that the political apparatus of force could not possibly provide a 
place for purely religious virtues, whether uncompromising rational 
ethics or acosmistic fraternalism. This is one source of the affinity be- 
tween inner-worldly asceticism and the advocacy of the minimization 
of state control such as was represented by the laissez-faire doctrine of 
th e " M a nch es ter sch 00I . " 



2. Tensions and Compromises Between Ethics 
and Politics 

The conflict of ascetic ethics, as well as of the mystically oriented 
temper of brotherly love, with the apparatus of domination which is 
basic to all political institutions has produced the most varied types of 
tension and compromise. Naturally, the polarity between religion and 



5 9 4 RELIQKJUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

politics is least wherever,- as in Confucianism, religiohls equivalent to a 
belief in spirits or simply a belief in magic, and ethics is no more than a 
prudent accommodation to the world on the part of the educated man. 
Nor does any conflict between religion and politics exist wherever, as in 
Islam, religion makes obligatory the violent propagation of the true 
prophecy which consciously eschews universal conversion and enjoins 
the subjugation of unbelievers under the dominion of a ruling order 
dedicated to the religious war as one of the basic postulates of its "faith, 
without recognizing the salvation of the subjugated. For this is obviously 
no universalistic salvation religion. The practice of coercion poses no 
problem, as god is pleased by the forcible dominion of the faithful over 
the infidels, who are tolerated once they have been subjugated. 

Inner-worldly asceticism reached a similar solution to the problem 
of the relation between religion and politics wherever, as in radical 
Calvinism, it represented as God's will the domination over the sinful 
world, for the purpose of controlling it, by religious virtuosi belonging 
^^ to the "pure" church. This view was fundamental in the theocracy of 
W New England, in practice if not explicitly, though naturally it became 
involved with compromises of various kinds. Another instance of the 
absence of any conflict between religion and politics is to be found in 
the intellectualistic salvation doctrines of India, such as Buddhism and 
Jainism, in which every relationship to the world and to action within 
the world is broken off, and in which the personal exercise of violence 
as well as resistance to violence is absolutely prohibited and is indeed 
without any object. Mere conflict between concrete demands of a state 
and concrete religious injunctions arises when a religion is the pariah , 
faith of a group that is excluded from political equality but still believes 
in the religious prophecies of a divinely appointed restoration of its 
social level. This was the case in Judaism, which never in theory re- 
jected the state and its coercion but, on the contrary, expected in the 
Messiah their own masterful political ruler, an expectation that was 
sustained at least until the time of the destruction of the Temple by 
Hadrian. 

Wherever congregational religions have rejected all employment of 
force as an abomination to god and have sought to require their mem- 
bers' avoidance of all violence, without however reaching the consistent 
conclusion of absolute flight from the world, the conflict between re- 
ligion and politics has led either to martyrdom or to passive anti-political 
sufferance of the coercive regime. History shows that religious anarchism 
has hitherto been only a short-lived phenomenon, because the intensity 
of faith which makes it possible is in only an ephemeral charisma. Yet 
there have been independent political organizations which were based, 



xiu ] __ Religious Ethics and the World: Politics 595 

not on a purely anarchistic foundation, but on a foundation of consistent 
pacifism. The most important of these was the Quaker community in 
Pennsylvania, which for two generations actually succeeded, in contrast 
to all the neighboring colonies, in existing side by side with the Indians, 
and indeed prospering, without recourse to violence. Such situations 
continued until the conflicts of the great colonial powers made a fiction 
of pacifism. Finally, the American War of Independence, which was 
waged in the name of basic principles of Quakerism (though the 
orthodox Quakers did not participate because of their principle of non- 
resistance), led to the discrediting of this principle even inwardly. More- 
over, the corresponding policy of the tolerant admission of religious 
dissidents into Pennsylvania brought even the Quakers there to a policy 
of gerrymandering political wards, which caused them increasing un- 
easiness and ultimately led them to withdraw from co-responsibility for 
the government. 

Typical examples of completely passive indifference to the political 
dimension of society, from a variety of motives, are found in such group* 
as the genuine Mennonites, in mds| Baptist communities, and in nu- 
merous other sects in various places^ especially Russia. The absolute 
renunciation of the use of force by these groups led them into acute 
conflicts with the political authorities only where military service was 
demanded of the individuals concerned. Indeed, attkudes toward war, 
even of religious denominations that did not teach an absolutely anti- 
politicalt attitude, have varied in particular cases, depending upon 
whether* the wars in question were fought to protect the religion's free- 
dom of worship from-attack by political authority or fought for purely 
political purposes. For thesetwo types of war, two diametrically oppo- 
site slogans prevailed. On the one liand, there was the purely passive 
sufferance of alien power and the withdrawal from any personal partici- 
pation in the exercise of violence, culminating ultimately in personal 
martyrdom. This was of course the position of mystical apoliticism, witrn, 
its absolute indifference to the world, as well as the position of thos& 
types of inner- worldly asceticism which were paci fistic in principle. But 
even "a purely personal religion of faith frequently generated political 
indifference and religious martyrdom, inasmuch as it recognized neither 
a rational order of the outer world pleasing to God, nor a rational 
domination of the world desired by Goer: Thus, Luther completely re- 
jected religious revolutions as well as religious wars. 

The other possible standpoint was that of violent resistance, at least 
to the employment of force against religion. The concept of a religious 
revolution was consistent most with a rationalism oriented to an ascetic 
mastery of mundane affairs which taught that sacred institutions and 



. <>9(> RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION ) [Ck. VI 

institutions pleasing to God exist within this world. Within Christianity, 
this was true in Calvinism, which made it a religious obligation to 
defend the faith against tyranny by the use of force. It should be 
added, however, that Calvin taught that this defense might be under- 
taken only at the initiative of the proper authorities, in keeping with the 
-character of an institutional church. The obligation to bring about a 
revolution in behalf of the faith was naturally taught by the religions 
that engaged in wars of missionary enterprise and by their derivative 
■>sects, like the Mahdists and other sects in Islam, including the Sikhs — 
a Hindu sect that was originally pacifist but passed under the influence 
of Islam and became eclectic. 

The representatives of the two opposed viewpoints just described 
^'sometimes took virtually reverse positions toward a political war that had 
no religious motivation. Religions that applied ethically rationalized 
demands to the political realm had necessarily to take a more funda- 
mentally negative attitude toward purely political wars than those re- 
ligions that accepted the institutions of the world as "given" and 
Relatively indifferent in value. The unvan^uishcd Cromwcllian army 
petitioned Parliament for the abolition of forcible conscription, on the 
ground that a Christian should participate only in those wars the justice 
of which could be affirmed by his own conscience. From this standpoint, 
the mercenary army might be regarded as a relatively ethical institution, 
inasmuch as the mercenary would have to settle with God and his 
conscience as to whether he would take up this calling. The employ- 
ment of force by the state can have moral sanction only when the force 
is used for the control of sins, for the glory of God, and for combating 
religious evils — in short, only foi religious purposes. On the other hand, 
the view of Luther, .who absolutely rejected religious wars and revolu- 
tions as well as any active resistance, was that only the secular authority, 
whose domain is untouched by the rational postulates of religion, has 
the responsibility of determining whether political wars are just or un- 
. just. Hence, the individual subject has no reason to burden his own 
conscience with this matter if only he gives active obedience to the 
political authority in this and in all other matters which do not destroy 
his relationship to God. 

The position of ancient and medieval Christianity in relation to the 
-estate Is a whole oscillated or, more correctly, shifted its center of gravity 
from one to another of several distinct points of view. At first there was 
a complete abomination of the existing Roman empire, whose existence 
..: jantil the very end of time was taken for granted in Antiquity by every- 
one, even Christians. The empire was regarded as the dominion of 
Anti-Christ. A second view was complete indifference to the state, and 



xiii ] __ Religious Ethics and the World: Politics -5 97 

hence passive sufferance of the use of force, which was deemed to be 
unrighteous in every case. This entailed active compliance with all the 
coercive obligations imposed by the state, e.g., the payment of taxes 
which did not di reedy imperil religious salvation. For the true intent 
of the New Testament verse about "rendering unto Caesar the things 
which are Caesar's" is not the meaning deduced by modern harmonizing 
interpretations, namely a positive recognition of the obligation to pay 
taxes, but rather the reverse: an absolute indifference to all the affairs 
of the mundane world. 

Two other viewpoints were possible. One entailed withdrawal from 
concrete activities of the political community, such as the cult of the 
emperors, because and insofar as such participation necessarily led to 
sin. Nevertheless, the state's authority was accorded positive recognition 
as being somehow desired by God, even when exercised by unbelievers 
and even though inherently sinful. It was taught that the state's aiT-^ 
thority, like all the institutions of this world, is an ordained punishment 
for the sin brought upon man by Adam's fall, which the Christian must 
ohediendy take upon himself. Finally, the authority of the state, even 
when exercised by unbelievers, might be evaluated positively, due to 
our condition of sin, as an indispensable instrument, based upon the 
divinely implanted natural knowledge of religiously unilluminated 
heathens, for the social control of reprehensible sins and as a general 
condition for all mundane existence pleasing to God. 



3. Natural Law and Vocational Ethics 

Of these four points of view, the first two mentioned belong, 
primarily to the period of eschatological expectation, but occasionally 
they come to the fore even in a later period. As far as the last of the 
four is concerned, ancient Christianity did not really go beyond it. in 
principle, even after it had been recognized as the state religion. Rather; 
the great change in the attitude of Christianity toward the state took 
place in the medieval church, as the investigations of Troeltsch have 
brilliantly demonstrated. 1 But the problem in which Christianity found 
itself involved as a result, while not limited to this religion, nevertheless., 
generated a whole complex of difficulties peculiar to Christianity alone, 
partly from internal religious causes and partly from the operation of 
non-religious factors. This critical complex of difficulties concerned the 
relationship of so-called "natural law" to religious revelation on the 
one hand, and to positive political institutions and their activities on 



5 9 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) { Ck. VI 

We shall advert again to this matter briefly, both in connection with 
our exposition of the forms of religious communities and in our analysis 
of the forms of domination [below, ch. XV : 1 4] . But the following point 
may be made here regarding the theoretical solution of these problems as 
it affects personal ethics: the general schema according to which religion 
customarily solves the problem of the tension between religious ethics 
and the non-ethical or unethical requirements of life in the political and 
economic structures of power within the world is to relativize and 
differentiate ethics into "organic" (as contrasted to "ascetic") ethics of 
vocation. This holds true whenever a religion is dominant within a 
political organization o- occupies a privileged status, and particularly 
when it is a religion of institutional grace. 

Christian doctrine, as formulated by Aquinas for example, to some 
degree assumed the view, already common in animistic beliefs regarding 
souls and the world beyond, that there are purely natural differences 
among men, completely independent of any effects of sin, and that these 
natural differences c'etermine the diversity of status destinies in this 
world and beyond. Iroeltsch has correctly stressed the point that this 
formulation of Christian doctrine differs from the view found in 
Stoicism and earliest Christianity of an original golden age and a blissful 
state of anarchic equality of all human beings. 2 

At the same time, however, religion interprets the power rela- 
tionships of the mundane world in a metaphysical way. Human beings 
are condemned — whether as a result of original sin, of an individual 
' causality of karma, or of the corruption of the world deriving from a 
basic dualism— to suffer violence, toil, pain, hate, and above all differ- 
ences in class and status position within the world. The various callings 
or castes have been providentially ordained, and each of them has been 
assigned some specific, indispensable function desired by god or deter- 
mined by the impersonal world order, so^that different ethical obliga- 
tions devolve upon each. The diverse occupations and castes are com- 
pared to the constituent portions of an organism in this type of theory. 
The various relationships of power which emerge in this manner must 
therefore be regarded as divinely ordained relationships of authority. 
Accordingly, any revolt or rebellion against them, or even the raising 
of vital claims other than those corresponding £0 one's status in society, 
is reprehensible to god because they are expressions of creaturely self- 
aggrandizement and pride which are destructive of sacred tradition. 
The virtuosi of religion, be they of an ascetic or contemplative type, are 
also assigned their specific responsibility within such an organic order, 
just as specific functions have been allocated to princes, warriors, judges, 
artisans, and peasants. This allocation of responsibilities to religious 



xiii ] Religious Ethics and the World: Politics - 599 

virtuosi is intended to produce a treasure of supernumerary good works 
which the institution of grace may thereupon distribute. By subjecting 
himself to the revealed truth and to the correct sentiment of love, the 
individual will achieve, and that within the established institutions of 
the world, happiness in this world and reward in the life to come. 

For Islam, this organic conception and its entire complex of related 
problems was much more remote, since Islam rejected universalism, re- 
garding the ideal status order as consisting of believers and unbelievers 
or pariah peoples, with the former dominating the latter. Accordingly,., 
Islam left the pariah peoples entirely to themselves in all matters which 
were of indifference to religion. It is true that the mystical quest for 
salvation and ascetic virtuoso religion did conflict with institutional 
orthodoxy in the Muslim religion. It is also true that Islam did experi- 
ence conflicts between sacred and profane law, which always arise 
when positive sacred norms of the law have developed. Finally, Islam 
did have to face certain questions of orthodoxy in the theocratic consti- 
tution. But Islam did not confront the ultimate problem of the relation- 
ship between religious ethics and secular institutions, which is a problem 
of religion and natural law. 

On the other hand, the Hindu books of law promulgated an organic, 
traditionalistic ethic of vocation, similar in structure to medieval Cath- 
olicism, only more consistent, and certainly more consistent than the 
rather thin Lutheran doctrine regarding the status ecclesiasticus, politi- 
cus, and oeconomicus. As we have already seen, the status system in 
India actually combined a caste ethic with a distinctive doctrine of 
salvation. "That is, it held that an individual's chances of an ever higher 
ascent in future incarnations upon earth depend on his having fulfilled 
the obligations of his own caste, be they ever so disesteemed socially. 
This belief had the effect of inducing a radical acceptance of the social 
oider, especially among the very lowest castes, which would have most 
to gain in any transmigration of souls. 

On the other hand, the Hindu theodicy would have regarded as 
absurd the medieval Christian doctrine, as set forth for example by 
Beatrice in the Paradiso of Dante, that the class differences which 
obtain during one's brief span of life upon earth will be perpetuated 
into some "permanent" existence in the world beyond. Indeed, such a 
view would have deprived the strict traditionalism of the Hindu organic 
ethic of vocation of all the infinite hopes for the future entertained by 
the pious Hindu who believed in the transmigration of souls and the 
possibility of an ever more elevated form of life upon this earth. Hence, 
even from the purely religious point of view, the Christian doctrine of 
the perpetuation of class distinctions 'fo((jf||ie next world had the effect 



■ 6oo RELIGIOUS GROUPS (SOCIOLOGY OF BELIGIOn) [ Ck. VI 

^ of providing a much less secure foundation for the traditional stratifica- 
tion of vocations than did the steel-like anchorage of caste to the al- 
together different religious promises contained in the doctrine of metem- 
" psychosis. 

. The medieval and the Lutheran traditionalistic ethics of vocation 
actually rested on a general presupposition, one that is increasingly rare, 
. which both share with the, Confucian ethic: that power relationships in 
both, the economic and political spheres have a purely personal char- 
acter. In these spheres of the execution of justice and particularly in 
-political administration, a whole organized structure of personal relations 
-— o£_subordination exists which is dominated by caprice and grace, in- 
dignation and love, and most of all by the mutual piety and devotion 
; _of masters and subalterns, after the fashion of the family. Thus, these 
• ' ^relationships of domination have a character to which one may apply 
ethical requirements in the same way that one applies them to every 
"~"otrrer purely personal relationship. 

Yet as we shall see later, it is quite certain that the "masterless 
slavery" (Wagner) of the modern proletariat, and above all the whole 
realm of the rational institution of the state — that "rascal, the state" 
'Racker von Stoat) so heartily abominated by romanticism — no longer 
possess this personalistic character. 3 In a personalistic status order it is 
"quite clear that one must act differently toward persons of different 
status. The only problem that may arise on occasion, even for Thomas 
Aquinas, is how this is to be construed. Today, however, the homo 

- folittcus, as well as the homo oecononticus, performs his duty best when 
he acts without regard to the person in question, sine ira et studio, with- 

- -Out hate and without love, without personal predilection and therefore 
: wifhout grace, hut sheerly in accordance with the impersonal duty im- 

— posed by his calling, and not as a result of any concrete personal rela- 
tionship. He discharges his responsibility best if he acts as closely as 
possible in accordance with the rational regulations of the modern power 
system. Modern procedures of justice impose capital punishment upon 
the malefactor, not out of personal indignation or the need for venge- 
ance, but with complete detachment and for the sake of objective norms 
. and ends, simply for the working out of the rational autonomous lawful- 
ness inherent in justice. This is comparable to the impersonal retribu- 
tion of karma, in contrast to Yahweh's fervent quest for vengeance. 

The use of force within the political community increasingly as- 
sumes the form of the Rechtsstaat. But from the point of view of re- 
ligion, this is merely the most effective mimicry of brutality. All politics 
it oriented to reason d'etat, to realism, and to the autonomous end of 



xiii ] Religious Ethics and the World: Politics 6 o i 

maintaining the external and internal distribution of power. These 
goals, again, must necessarily seem completely senseless from the reli- 
gious point of view. Yet only in this way does the realm of politics 
acquire a peculiarly rational mystique of its own, once brilliandy formu- 
lated by Napoleon, which appears as thoroughly alien to every ethic 
of brotherliness as do the rationalized economic institutions. 

The accommodation that contemporary ecclesiastical ethics is making 
to this situation need not be discussed in detail here. In general the 
compromise takes form through reaction to each concrete situation as it 
arises. Above all, and particularly in the case of Catholicism, the accom- 
modation involves the salvaging of ecclesiastical power interests, which 
have increasingly become objectified into a raison d'eglise, by the em- 
ployment of the same modem instruments of power employed by secular 
institutions. 

The objectification of the power structure, with the complex of 
problems produced by its rationalized ethical provisos, has but one 
psychological equivalent: the vocational ethic taught by asceticism. 
An increased tendency toward flight into the irrationalities of apolitical 
emotionalism in different degrees and forms, is one of the actual conse- 
quences of the rationalization of coercion, manifesting itself wherever 
the exercise of power has developed away from the personalistic orienta-' 
n'on of heroes and wherever the entire society in question has developed 
in the direction of a national "state." Such apolitical emotionalism may 
take the form of a flight into mysticism and an acosmistic ethic of 
absolute goodness or into the irrationalities of non-religious emotionalism, 
above all eroticism. Indeed, the power of the sphere of eroticism enters 
into particular tensions with religions of salvation. This is particularly 
true of the most powerful component of eroticism, namely sexual love. 
For sexual love, along with the "true" or economic interest, and the 
social drives toward power and prestige, is among the most fundamental 
and universal components of the actual course of interpersonal behavior. 



NOTES 

i. See Ernst Trgdtscb, "Das itottch-christliche Naturrecht und das mo 1 
(feme profane Natmrecht" (1911), in Aitfsatze zw GeisUsgeschichte wtd Relt- 
gkmssozioicgie (Tiibingen: Mohr, 1924), 179. (W) 

2. Id., "Epochen und Types tier Sozialphilosophie des Christentums" 
(191O, op.ofc, 133. 

3. The term "benenloae SUawtei" is attributed to the economist Adolf 
Wagner O835-1917}, a pnpooflbt of me Christian welfare rtate. "Racker von 
Staat" had in Weber'* time haoone a humorous expression; it was a favorite 



6 O 2 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck, VI 

phrase of the romantic king Frederick William IV of Prussia C1840-61), The 
words were allegedly spoken by a peasant whose personal petition the king had 
turned down in the name of state and order; the peasant is supposed to have 
said: "I knew in advance that it would not be my beloved King who would 
confront me bat that Rocker von Stoat." 



XIV 

Religious Ethics and the World: 

Sexuality and Art 

\ 

1 . Orgy versus Chastity 

The relationship of religion to sexuality is extraordinarily intimate, 
though it is partly conscious and partly unconscious, and though it may 
be indirect as well as direct. We shall focus on a few traits of this rela- 
tionship that have sociological relevance, leaving out of account as being 
rather unimportant for our purposes the innumerable relationships of 
sexuality to magical notions, animistic notions, and symbols- -In the first 
place, sexual intoxication is a typical component of the orgy, the reli- 
gious behavior of the laity at a primitive level. The function of sexual 
intoxication may he retained even in relatively systematized religions, in , 
some cases quite directly and by calculation. This is the case in the ShakH- 
religion of India, after the pattern of the ancient phallic cults and rites 
of the various functional gods who control reproduction, whether of 
man, beast, catde, Oi grains of seed. More frequently, however, the 
erotic orgy appears in religion as an undesired consequence of ecstasy 
produced by o*her orgiastic means, particularly the dance. Among mod- 
ern sects, this was still the case in the terpsichorean orgy of the Khlysty. 
This provided the stimulus for the formation of the Skoptsy sect, which, 
as we have seen, then sought to eliminate this erotic by-product so 
inimical to asceticism. 1 Various institutions which have often been mis- 
interpreted, as for example temple prostitution, are related to orgiastic 
cults. In practice, temple prostitution frequendy fulfilled the function 
of a brothel for traveling traders who enjoyed the protection of the 
sanctuary. (In the nature of the case, the typical client of brothels to this 
very day remains the traveling salesman.) To attribute extraordinary 
sexual orgies to a primordial and endggamous promiscuity obtaining in 



xiv ] Religious Ethics and the World: Sexuality & Art 603 

the everyday life of the clan or tribe as a generic primitive institution is 
simple nonsense. 

The intoxication of the sexual orgy can, as we have seen, be subli- 
mated explicitly or implicitly into erotic love for a god or savior. But 
there may also emerge from the sexual orgy, from temple prostitution, 
or from other magical practices the notion that sexual surrender has a 
religious meritoriousness. This aspect of the matter need not interest us 
here. Yet there can be no doubt that a considerable portion of the 
specifically anti-erotic religiosity, both mystical and ascetic, represents 
substitute satisfactions of sexually conditioned physiological needs. What 
concerns us in this religious hostility to sexuality is not the neurological 
relationships, important aspects of which are still controversial, but 
rather the meaning which is~ attributed to sex. For this meaning which 
underlies religious antipathy to sex in a given case may produce quite 
diverse results in actual conduct, even if the neurological factor remains 
constant. Even these consequences for action are of only partial interest 
here. The most limited manifestations of the religiously grounded anti- 
'pathy to sexuality is cultic chastity, a temporary abstinence from sexual 
activity by the priests or participants in the cult prior to the administra- 
tion of sacraments. A primary reason for such temporary abstinence is 
usually regard for the norms of taboo which for various magical and 
spiritualistic reasons control the sexual sphere. The details of this matter 
do not concern us here. 

On the other hand, the permanent abstinence of charismatic priests 
and religious virtuosi derives primarily from the view that chastity, as a 
highly extraordinary type of behavior, is a symptom of charismatic qual- 
ities and a source of valuable ecstatic abilities, which qualities and abil- 
ities are necessary instruments for the magical control of the god. Later 
on, especially in Occidental Christianity, a major reason for priestly 
celibacy was the necessity that the ethical achievement of the priestly 
incumbents of ecclesiastical office not lag behind that of the ascetic 
virtuosi, the monks. Another major reason for the emphasis upon the 
celibacy of the clergy was the church's interest in preventing the inherit- 
ance of its benefices by the heirs of priests. 

At the level of ethical religion, two other significant attitudes of 
antipathy to sexuality developed in platte of the various types of magical 
motivation. One was the conception of mystical flight from the world; 
this conception interpreted sexual abstinence as the central and in- 
dispensable instrument of the mystical quest for salvation through con- 
templative withdrawal from the world, in which sexuality, the drive 
that most firmly binds man to the animal level, constitutes the most 
powerful temptation. The other basic position was that of asceticism. 



604 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

Rational ascetic alertness, self-control, and methodical planning of life 
are threatened the most by the peculiar irrationality of the sexual act, 
which is ultimately and uniquely unsusceptible to rational organization. 
These two motivations have frequently operated together to produce 
hostility toward sexuality in particular religions. All genuine religious 
prophecies and all n on -prophetic priestly systematizations of religion 
without exception concern themselves with sexuality from such motives 
as we have just discussed, generally terminating in hostility toward 
sexuality. 



2. The Religious Status of Marriage and of Women 

Religion primarily desires to eliminate the sexual orgy (the "whore- 
dom" denounced by the Jewish priests), in keeping with prophetic reli- 
gion's genera] attitude toward orgies, which we have described already. 
But an additional effort is made by religion to eliminate all Free sexual 
relationships in the interest of the religious regulation and legitimation 
of marriage. Such an effort was even made by Muhammad, although in 
bis personal life and in his religious preachments regarding the world 
beyond he permitted unlimited sexual freedom to the warrior of the 
faith. It will be recalled that in one of his suras he ordained a special 
dispensation regarding the maximum number of wives permitted for 
himself. The various forms of extra-marital love a.nd prostitution, which 
were legal before the establishment of orthodox Islam, have been pro- 
scribed in that religion with a success scarcely duplicated elsewhere. 

World-fleeing asceticism of the Christian and Hindu types would 
obviously have been expected to evince an antipathetic attitude toward 
sex. The mystical Hindu prophecies of absolute and contemplative 
world-flight naturally made the rejection of all sexual relations a pre- 
requisite for complete salvation. But even the Confucian ethic of abso- 
lute accommodation to the world viewed irregular sexual expression as 
an inferior irrationality, since irregular behavior in this sphere disturbed 
the inner equilibrium of a gentleman and since woman was viewed as 
an irrational creature difficult to control- Adultery was prohibited in the 
Mosaic Decalogue, in the Hindu sacred law, and even in the relativistic 
lay ethics of the Hindu monastic prophecies- The religious preaching 
of Jesus, with its demand of absolute and indissoluble monogamy, went 
beyond all other religions in the limitations imposed upon permissible 
and legitimate sexuality. In the earliest period of Christianity, adultery 
and whoredom were almost regarded as the only absolute mortal sins. 
The univira was regarded as the hallmark of the Christian community 



xiv } Religious Ethics and the World: Sexuality & Art 605 

in the Mediterranean littoral area, which had been educated by the 
Greeks and the Romans to accept monogamy, but with free divorce. 

Naturally, the various prophets differed widely in their personal atti- 
tudes toward woman and her place in the community, depending on 
the character of their prophecy, especially on the extent to which it 
corresponds to the distinctively feminine emotionality. The fact that a 
prophet such as the Buddha was glad £0 see bright women sitting at 
his feet and the fact that he employed them as propagandists and mis- 
sionaries, as did Pythagoras, did not necessarily carry over into an evalu- 
ation of the whole female sex. A particular woman might be regarded 
as sacred, yet the entire female sex would still be considered vessels of 
sin. Yet practically all orgiastic and mystagogic religious propagandizing, 
including that of the cult of Dionysos, called for at least a temporary 
and relath^e emancipation of women, unless such preachment was 
blocked by other religious tendencies or by specific resistance to hys- 
terical preaching by women, as occurred among the disciples of the 
Buddha and in ancient Christianity as early as Paul. The admission 
of women to an equality of religious status was also resisted due to 
monastic misogyny, which assumed extreme forms in such sexual neu- 
rasthenics as Alfonsus Liguori [1696-1787]. Women are accorded the 
greatest importance in sectarian spiritualist cults, be they hysterical or 
sacramental, of which there are numerous instances in China. Where 
women played no role in the missionary expansion of a religion, as was 
the case in Zoroastrianism and Judaism, the situation was different from 
the very start. 

Legally regulated marriage itself was regarded by both prophetic and 
priesdy ethics, not as an erotic value, but in keeping with the sober view 
of the so-called "primitive peoples," simply as an economic institution 
for the production and rearing of children as a labor force and subse- 
quently as carriers of the cult of the dead. This was also the view of 
the Greek and Roman ethical systems, and indeed of all ethical systems 
, the world over which have given thought to the matter. The view ex- 
pressed in the ancient Hebrew scriptures that the young bridegroom 
was to be free of political and military obligations for a while so that 
he might have the joy of his young love was a very rare view. Indeed, 
not even Judaism made any concessions to sophisticated erotic expression 
divorced from sexuality's natural consequence of reproduction, as we 
see in the Old Testament curse upon the sin of Onan (coitus interrwp- 
(hs). Roman Catholicism adopted the same rigorous attitude toward . 
sexuality by rejecting birth control as a mortal sin. Of course every type 
of religious asceticism which is oriented toward the control of this 
world, and above all Puritanism, limits the legitimation of sexual expres- 



6 O 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

sion to the aforementioned rational goal of reproduction. The anomistic 
and semi-orgiastic types of mysticism were led by their universalisric 
feeling of love into only occasional deviations from the central hostility 
of religion toward sexuality. 

Finally, the evaluation of normal and legitimate sexual intercourse, 
and thus the ultimate relationship between religion and biological 
phenomena, by prophetic ethics and even ecclesiastical rational ethics 
is still not uniform. Ancient Judaism and Confucianism generally taught 
that offspring were important. This view, also found in Vedic and 
Hindu ethics, was based in part on animistic notions and in part on 
later ideas- All such notions culminated in the direct religious obligation 
to beget children. In Talmudic Judaism and in Islam, on the other hand, 
the motivation of the comparable injunction to marry seems to have 
been based, in part at least, like the exclusion of unmarried ordained 
clergy from the lower ecclesiastical benefices in the Eastern churches, 
on the conception that sexual drives are absolutely irresistible for the 
average man, for whom it is better that a legally regulated channel of 
expression be made available. 

These beliefs in the inevitability of sexual expression correspond 
to the attitude of Paul and to the relativity of lay ethics in the Hindu 
contemplative religions of salvation, which proscribe adultery for the 
upasakas. Paul, from mystical motivations which we need not describe 
here, esteemed absolute abstinence as the purely personal charisma of 
religious virtuosi. The lay ethic of Catholicism ako followed this point 
of view. Further, this was the attitude of Luther, who regarded sexual 
expression within marriage simply as a lesser evil enjoined for the 
avoidance of whoredom. Luther construed marriage as a legitimate sin 
which God was constrained not to notice, so to speak, and which of 
course was a consequence of the ineluctable concupiscence resulting 
from original sin. This notion, similar to Muhammad's notion, partly 
accounts for Luther's relatively weak opposition to monasticism at first. 
There was to be no sexuality in Jesus' kingdom to come, that is, in some 
future terrestrial regime, and all official Christian theory strongly re- 
jected the inner emotional side of sexuality as constituting concupis- 
cence, the result of original sin. 

Despite the widespread belief that hostility toward sexuality is an 
idiosyncracy of Christianity, it must be emphasized that no authentic 
religion of salvation had in principle any other point of view. There are 
a number of reasons for this. The first is based on the nature of the 
evolution that sexuality itself increasingly underwent in actual life, as 
a result of the rationalization of the conditions of life. At the level of the 
peasant, the sexual act is an everyday occurrence; primitive people do 



xiv ] Religious Ethics and the World: Sexuality & Art 607 

not regard this act as containing anything unusual, and they may indeed 
enact it before the eyes of onlooking travelers'without the slightest feel- 
ing of shame, They do not regard this act as having any significance 
beyond the routine of living. The decisive development, from the point 
of view of the problems which concern us, is the sublimation of sexual 
expression into an eroticism that becomes the basis of idiosyncratic sen- 
sations, hence generates its own unique values and transcends everyday 
life. The impediments to sexual intercourse that are increasingly pro- 
duced by the economic interests of clans and by status conventions are 
the most important factors favoring this sublimation of sexuality into 
eroticism. To be sure, sexual relations were never free of religious or 
economic regulations at any known point in the evolutionary sequence, 
but originally they were far less surrounded by bonds of convention, 
which gradually attach themselves to the original economic restrictions 
until they subsequently become major restrictions on sexuality. 

The influence of modern ethical limitations upon sexual relations, 
which is alleged to be the source of prostitution, is almost always in- 
terpreted erroneously. Professional prostitution of both the heterosexual 
and homosexual types (note the training of tribades) is found even at 
the most primitive levels of culture, and everywhere there is some reli- 
gious, military, or economic limitation upon prostitution. However, the 
absolute proscription of prostitution dates only from the end of the 
fifteenth century. As culture becomes more complex, there is a constant 
growth in the requirements imposed by the clan in regard to providing 
security for the children of a female member, and also in the living 
standards of young married couples. Thereby another evolutionary factor 
becomes necessarily important. In the formation of ethical attitudes the 
emergence of a new and progressively rationalized total life pattern, 
changing from the organic cycle of simple peasant existence, has a far 
stronger influence but one less likely to be noticed. 



3. TheTensions Between Ethical Religion and Art 

just as ethical religion, especially if it preaches brotherly love, enters 
into the deepest inner tensions with the strongest irrational power of 
personal life, namely sexuality, so also does ethical religion enter into 
a strong polarity with the spHere of art. Religion and art are intimately 
related in the beginning. That religion has been an inexhaustible spring 
for artistic expressions is evident from the existence of idols and icons 
of every variety, and from the existence of music as a device for arousing 
ecstasy or for accompanying exorcism and apotropaic cultic actions. 



608 RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [Ch.Vl 

Religion has stimulated the artistic activities of magicians and sacred 
bards, as well as the creation of temples and churches (the greatest of 
artistic productions), together with the creation of religious paramenia 
and church vessels of all sorts, the chief objects of the arts and crafts. 
But the more art becomes an autonomous sphere, which happens as a 
result of lay education, the more art tends to acquire its own set of 
constitutive values, which are quite different from those obtaining in 
the religious and ethical domain. 

Every unreflectively receptive approach to art starts from the sig- 
nificance of the content, and that may induce formation of a com- 
munity. But the conscious discovery of uniquely esthetic values is re-' 
served for an intellectualist civilization. This development causes the 
disappearance of those elements in art which are conducive to com- 
munity formation and conducive to the compatibilitv of art with the 
religious will to salvation. Indeed, religion violently rejects as sinful the 
type of salvation within the world which art qua art claims to provide. 
Ethical religions as well as true mysticisms regard with hostility any such 
salvation from the ethical irrationalities of the world. The climax of 
this conflict between art and religion is reached in authentic asceticism, 
which views any surrender to esthetic values as a serious breach in the 
rational systematization of the conduct of life. This tension increases 
with the advance of intellectualism, which may be described as quasi- 
esthetic. The rejection of responsibility for ethical judgment and the 
fear of appearing bound by tradition, which come to the fore in intel- 
lectualist periods, shift judgments whose intention was originally ethical 
into an esthetic key. Typical is the shift from the judgment "reprehensi- 
ble" to the judgment "in poor taste." But this unappealable subjec- 
tivity of all judgments about human relationships that actually comes 
to the fore in the cult of estheticism, may well be regarded by reli- 
gion as one of the profoundesf forms of idiosyncratic lovelessness 
conjoined with cowardice. Clearly there is a sharp contrast between the 
esthetic attitude and religio- ethical norms, since even when the indi- 
vidual rejects ethical norms he nevertheless experiences them humanly 
in his knowledge of his own creatureliness. He assumes some such norm 
to be basic for his own conduct as well as another's conduct in the 
particular case which he is judging. Moreover, it is assumed in principle 
that the justification and consequences of a religio-ethical norm remain 
subject to discussion. At all events, the esthetic attitude offers no sup- 
port to a consistent ethic of fraternalism, which in its turn has a clearly 
anti-esthetic orientation. 

The religious devaluation of art, which usually parallels the reli- 
gious devaluation of magical, orgiastic, ecstatic, and ritualistic elements 



xiv ] Religious Ethics and the World: Sexuality & An D09 

in favor of ascetic, spiritualistic, and mystical virtues, is intensified by the 
rational and literary character of both priestly and lay education in 
scriptural religions. But it is above all authentic prophecy that exerts an 
influence hostile to art, and that in two directions. First, prophecy obvi- 
ously rejects orgiastic practices and usually rejects magic in general. 
Thus, the primal Jewish fear of images and likenesses, which originally 
had a magical basis, was given a spiritualistic interpretation by Hebrew 
prophecy and transformed in relation to a concept of an absolute and 
V transcendental god. Second, somewhere along the line there arose the 
opposition of prophetic faith, which is centrally oriented to ethics and 
religion, to the work of human hands, which in the view of the prophets 
could promise only illusory salvation. The more the god proclaimed by 
the prophets was conceived as transcendental and sacred, the more 
insoluble and irreconcilable became this opposition between religion 
and art. 

On the other hand, religion is continually brought to recognize the 
undeniable "divinity" of artistic achievement. Mass religion in particular 
is frequently and directly dependent on artistic devices for the required 
potency of its effects, and it is inclined to make concessions to the needs 
of the masses, which everywhere tend toward magic and idolatry. Apart 
from this, organized mass religions have frequently had connections 
with art resulting from economic interests, as, for instance, in the case of 
the traffic in icons by the Byzantine monks, the most decisive opponents 
of the caesaropapist Imperial power which was supported by an army 
that was iconoclastic because it was recruited from the marginal provinces 
of Islam, still strongly spiritualistic at that time. The imperial power* in 
turn, attempted to cut off the monks from this source of income, hoping 
thus to destroy the economic strength of this most dangerous opponent 
to its plans for domination over the church. 

Subjectively too, there is an easy way back to art from every orgiastic 
'or ritualistic religion of emotionalism, as well as from every mystic reli- 
gion of love that culminates in a transcendence of individuality — despite 
the heterogeneity of the ultimate meanings involved. Orgiastic religion 
leads most readily to song and music; ritualistic religion inclines toward 
the pictorial arts; religions enjoining love favor the development of 
poetry and music. This relationship is demonstrated by .all our experi- 
ence of Hindu literature and art; the joyous lyricism of the Sufis, so 
utterly receptive to the world; the canticles of St, Francis; and the 
immeasurable influences of religious symbolism, particularly in mysti- 
cally formed attitudes. Yet particular empirical religions hold basically 
different attitudes toward art, and even within any one religion diverse 
attitudes toward art are manifested bv different strata, carriers, and 



6 I O RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

structural forms. In their attitudes toward art, prophets differ from mys- 
tagogues and priests, monks from pious laymen, and mass religions from 
sects of virtuosi. Sects of ascetic virtuosi are naturally more hostile to art 
on principle than are sects of mystical virtuosi. But these matters are not 
our major concern heie. At all events, any real inner compromise be- 
tween the religious and the esthetic attitudes in respect to their ultimate 
(subjectively intended) meaning is rendered increasingly difficult once 
the stages of magic and pure ritualism have been left behind. 

In all this, the one important fact for us is the significance of the 
marked rejection of all distinctively esthetic devices by those religions 
which are rational, in our special sense. These are Judaism, ancient, 
Christianity, and — later on — ascetic Protestantism. Their rejection of 
«• — -esthetics is either a symptom or an instrument of religion's increasingly 
^ rational influence .upon the conduct of life. It is perhaps going too far 
to assert that the second commandment of the Decalogue is the decisive 
foundation of actual Jewish rationalism, as some representatives of in- 
fluential Jewish reform movements have assumed. But there can be no 
question at all that the systematic prohibition in devout Jewish and 
Puritan circles of uninhibited surrender to the distinctive form-produc- 
ing values of art has effectively controlled the degree and scope of ar- 
tistic productivity in these circles, and has tended to favor the develop- 
ment of intellectualist and rational controls over life- 



NOTE 

i. The Khlysty C'flagellants" or, in another explanation, a derisory distortion 
of their, self -designation as Kristy, "Christs" or "People of God") were a dan- 
destine Russian sect in existence at least since the 17th century. The.r services, 
involving ecstatic dance, were claimed by their persecutors to have culminated 
in sexual orgies (svalnii grech, a ritual of "Christian loving"); cf. K. K. Grass, 
Die russischen Sekten, I O907), 434^-, who discounts the accusations. The 
Skoptsy ("castrators"), an offshoot of the above group founded in the 1770s, 
aspired to purification through various degrees cf self-emasculation. See also A. 
Leroy-Beaulieu, The Empire of the Tsars (London 1896), III. 



xv ] _ The Great Religions and the World 6 i i 

> XV 

The Great Religions and the World 



i . Judaism and Capitalism 

Judaism, in its postexilic and particularly its Talmudic form, belongs 
among those religions that are in some sense accommodated to the world. 
Judaism is at least oriented to the world in the sense that it does not 
reject the world as such but only rejects the prevailing social rank order 
in the world. 

We have already made some observations concerning the total so- 
ciological structure and attitude of Judaism. Its religious promises, in 
4 the customary meaning of the word, apply to this world, and any 
notions of contemplative or ascetic world-flight are as rare in Judaism as 
in Chinese religion and in Protestantism. Judaism differs from Puritan- 
ism only in the relative (as always) absence of systematic asceticism. 
The ascetic elements of the early Christian religion did not derive from 
Judaism, but emerged primarily in the heathen Christian communities 
of the Pauline mission. The observance' of the Jewish law has as little 
to do with asceticism as the fulfillment of any ritual or tabooistic norms. 

Moreover, the relationship of the Jewish religion to both wealth and 
sexual indulgence is not in the least ascetic, but rather highly natural- 
istic. For wealth was regarded as a gift of God, and the satisfaction of 
the sexual impulse — naturally in the prescribed legal form — was thought 
to be so imperative that the Talmud actually regarded a person who had 
remained unmarried after a certain age as morally suspect. The interpre- 
tation of marriage as an economic institution for the production and 
rearing of children is universal and has nothing specifically Jewish about 
it. Judaism's strict prohibition of illegitimate sexual intercourse, a prohi- 
bition that was highly effective among the pious, was also found in Islam 
and all other prophetic religions, as well as in Hinduism. Moreover, the 
majority of ritualistic religions shared with Judaism the institution of 
periods of abstention from sexual relations for purposes of purification. 
For these reasons, it is not possible to speak of an idiosyncratic empha- 
sis upon sexual asceticism in Judaism. The sexual regulations cited by 
Sombart do not go as far as the Catholic casuistry of the seventeenth 
century and in any case have analogies in many other casuistical systems 
of taboo. 1 



6 I 2 RELIGIOUS GROUPS CsOCIOLOGY OF RELIGION) [ Ch. VI 

Nor did Judaism forbid the uninhibited enjoyment of life or even 
of luxury as such, provided that the positive prohibitions and taboos of 
the law were observed. The denunciation of wealth in the prophetic 
books, the Psalms, the Wisdom literature, and subsequent writings was 
evoked by the social injustices which were so frequently perpetrated 
against fellow Jews in connection with the acquisition of wealth and 
in violation of the spirit of the Mosaic law. Wealth was also condemned 
in response to arrogant disregard of the commandments and promises of 
God and in response to the rise of temptations to laxity in religious ob- 
servance. To escape the temptations of wealth is not easy, but is for this 
reason all the more meritorious. "Hail to the man of wealth who has 
been found to be blameless." Moreover, since Judaism possessed no 
doctrine of predestination and no comparable idea producing the same 
ethical effects, incessant labor and success in business life could not be 
regarded or interpreted in the sense of certification, which appears most 
strongly among the Calvinist Puritans and which is found to some ex- 
tent in all ascetic Protestant religions, as shown in John Wesley's remark 
on this point. 2 Of course a certain tendency to regard success in one's 
economic activity as a sign of God's gracious direction existed in the reli- 
gion of the Jews, as in the religions of the Chinese and the lay Bud- 
dhists and generally in every religion that has not fumed its back upon 
the world. This view was especially likely to be manifested by a religion 
like Judaism, which had before it very specific promises of a transcen- 
dental God together with very visible signs of this God's indignation 
against the people he had chosen. It is clear that any success achieved in 
one's economic activities while keeping the commandments of God ' 
could be, and indeed had to be, interpreted as a sign that one was per- 
sonally acceptable to God. This actually occurred again and again. 

But the situation of the pious Jew engaged in business was altogether 
different from that of the Puritan, and this difference remained of prac- 
tical significance for the role of Judaism in the historv of the economy. Let 
us now consider what this role has been. In the polemic against Som- 
bart's book, one fact should not have been seriously questioned, namely 
that Judaism played a conspicuous role in the evolution of the modern 
capitalistic system. However, this thesis of Sombart's book needs to be 
made more precise. What were the distinctive economic achievements 
of Judaism in the Middle Ages and in modern times? We can easily 
list: moneylending, from pawn broking to the financing of great states; 
certain types of commodity business, particularly retailing, peddling, 
and .produce trade of a distinctively rural type; certain branches of 
wholesale business; and trading in securities, above all the brokerage 
of stocks. To this list of Jewish economic achievements should be added: 



xv ] - The Great Religions and the World 6 1 3 

money-changing; money-forwarding or check<ashing, which normally 
accompanies money-changing; the financing of state agencies, wars, and 
the establishment of colonial enterprises; tax-farming (naturally exclud- 
ing the collection of prohibited taxes such as those directed to the 
Romans); banking; credit; and the floating of bond issues. But of all 
these businesses only a few, though some very important ones, dispiay 
the forms, both legal and economic, characteristic of modern Occi- 
dental capitalism (as contrasted to the capitalism of ancient times, the 
Middle Ages, and the earlier period in Eastern Asia). The distinctively 
modern legal forms include securities and capitalist associations, but 
these are not of specifically Jewish provenience. The Jews introduced 
some of these forms into the Occident,- but the forms themselves have 
perhaps a common Oriental (probably Babylonian) origin, and their in- 
fluence on the Occident was mediated through Hellenistic and Byzan- 
tine sources. In any event they were common to both the Jews and the 
Arabs. It is even true that the specifically modern forms of these insti- 
1 tutions were in part Occidental and medieval creations, with some spe- 
cifically Germanic infusions of influence. To adduce detailed proof of 
this here would take us too far afield. However, it can be said by way 
of example that the Exchange, as a "market of tradesmen," was created 
not by Jews but by Christian merchants. Again, the particular manner 
in which medieval legal concepts were adapted to the purposes of ra- 
tionalized economic enterprise, i.e., the way in which partnerships en 
commandite, maone, privileged companies of all kinds and finally joint 
stock corporations were created/' was not at all dependent on specifically 
Jewish influences, no matter how large a part Jews later played in the 
formation of such rationalized economic enterprises. Finally, it must 
be noted that the characteristically modem principles of satisfying public 
arid private credit needs first arose in nuce on the soil of the medieval 
city. These medieval legal forms of finance, which were quite un-Jewish 
in certain respects, were later adapted to the economic needs of modern 
states and other modem recipients of credit. 

Above all, one element particularly characteristic of modern capital- 
ism was strikingly — though not completely — missing from the extensive 
list of Jewish economic activities. This was the organization of industrial 
production (geiverbliche Arbeit) in domestic industry and in the factory 
system. How does one explain the fact that no pious Jew thought of 
establishing an industry employing pious Jewish workers of the ghetto 
(as so many pious Puritan entrepreneurs had done with devout Chris- 
tian workers and artisans) at times when numerous proletarians were 
present in the ghettos, princely patents and privileges for the establish- 
ment of any sort of industry were available for a financial remuneration, 



6 I 4 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

and areas of industrial activity uncontrolled by guild monopoly were 
open? Again, how does one explain the fact that no modern and distinc- 
tively industrial bourgeoisie of any significance emerged among the Jews 
to employ the Jewish workers available for home industry, despite the 
presence of numerous impecunious artisan groups at almost the thresh- 
old of the modern period? 

AH over the world, for several millennia, the characteristic forms 
of the capitalist employment of wealth have been state-provisioning, 
tax-farming, the financing of colonies, the establishment of great planta- 
tions, trade, and moneylending. One finds Jews involved in just these 
activities, found at all times and places but especially characteristic of 
Antiquity, just as Jews are involved in those legal and entrepreneurial 
forms evolved by the Middle Ages but not by them. On the other hand, 
the Jews were relatively or altogether absent from the new and distinc- 
tive forms of modem capitalism, the rational organization of labor, 
especially production in an industrial enterprise of the factory type. The 
Jews evinced the ancient and medieval business temper which had been 
and remained typical of all genuine traders, whether small businessmen 
or large-scale moneylenders, in Antiquity, the Far East, India, the Medi- 
terranean littoral area, and the Occident of the Middle Ages: the will 
and the wit to employ mercilessly every chance of profit, "for the sake 
of profit to ride through Hell even if it singes the sails." But this temper 
is far from distinctive of modern capitalism, as distinguished from the 
capitalism of other eras. Precisely the reverse is true. Hence, neither that 
which is new in the modern economic system nor that which is distinc-^ 
tive of the modern economic temper is specifically Jewish in origin. 

The ultimate theoretical reasons for this fact, that the distinctive ele- 
ments of modern capitalism originated and developed quite apart from 
the Jews, are to be found in the peculiar character of the Jews as a pariah 
people and in the idiosyncracy of their religion. Their pariah status 
presented purely external difficulties impeding their participation in the 
organization of industrial labor. The legally and factually precarious 
position of the Jews hardly permitted continuous and rationalized indus- 
trial enterprise with fixed capital, but only trade and above all dealing 
in money. Also of fundamental importance was the subjective ethical 
situation of the Jews. As a pariah people, they retained the double 
standard of morals which is characteristic of primordial economic prac- 
tice in all communities: what is prohibited in relation to one's brothers 
is permitted in relation to strangers. It is unquestionable that the Jewish 
ethic was thoroughly traditionalistic in demanding of Jews an attitude 
of sustenance toward fellow Jews. Although the rabbis made concessions 
in these matters, as Sombart correctly points out, even in regard to 



xv } _ The Great Religions and the World 6 i 5 

business transactions with fellow Jews, this amounted merely to con- 
cessions to laxity, whereby those who took advantage of them remained 
far behind the highest standards of Jewish business ethics. In any case, 
it is certain that such behavior was not the realm in which a Jew could 
demonstrate his religious merit. 

However, for the Jews the realm of economic relations with 
strangers, particularly economic relations prohibited in regard to fellow 
Jews, was an area of ethical indifference. This is of course the primor- 
dial economic ethic of all peoples everywhere. That this should have 
remained the Jewish economic ethic was a foregone conclusion, for even 
in Antiquity the stranger confronted the Jew almost always as an enemy. 
All the well-known admonitions of the rabbis enjoining fairness espe- 
cially toward Gentiles could not change the fact that the religious law 
prohibited taking usury from fellow Jews but permitted it in transactions 
with non-Jews. Nor could the rabbinical counsels alter the fact, which, 
again Sombart has righdy stressed, that a lesser degree of exemplary 
legality was required by the law in dealing with a stranger, i.e., an 
enemy, than in dealing with another Jew, in such a matter as taking 
advantage of an error made by the other party. In fine, no proof is 
required to establish that the pariah condition of the Jews, which we 
have seen resulted from the promises of Yahweh, and the resulting 
incessant humiliation of the Jews by Gentiles necessarily led to the 
Jewish people's retaining a different economic morality for its relations 
with strangers than with fellow Jews. 



2. Jewish Rationalism versus Puritan Asceticism 

Let us summarize the mutual relatedness in which Catholics, Jews, 
and Protestants found themselves in regard to economic acquisition. The 
devout Catholic, as he went about his economic affairs, found himself 
continually behaving — or on the verge of behaving — in a manner that 
transgressed papal injunctions. His economic behavior could be ignored 
in the confessional only on the principle of rebus sic stantibus, and it 
could be permissible only on the basis of a lax, probabilistic morality. 
To a certain extent, therefore, the life of business itself had to be re- 
garded as reprehensible or, at best, as not positively favorable to God. 
The inevitable result of this Catholic situation was that pious Jews were 
encouraged to perform economic activities nmong Christians which if 
performed among Jews would have been regarded by the Jewish com- 
munity as unequivocally contrary to the law or at least as suspect from 
the point of view of Jewish tradition. At best these transactions were 



6 I 6 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

permissible on the basis of a lax interpretation of the Judaic religious 
code, and then only in economic relations with strangers. Never were 
they infused with positive ethical value. Thus, the Jew's economic con- 
duct appeared to be permitted by God, in the absence of any formal 
contradiction with the religious law of the Jews, but ethically indifferent, 
in view of such conducts correspondence with the average evils in the 
society's economy. This is the basis of whatever factual truth there was 
in the observations concerning the inferior standard of economic legality 
among Jews. That God crowned such economic activity with success 
could be a sign to the Jewish businessman that he had done nothing 
clearly objectionable or prohibited in this area and that indeed he had 
held fast to God's commandments in other areas. But it would still have 
been difficult for the Jew to demonstrate his ethical merit by means of 
characteristically modern business behavior. 

But this was precisely the case with the pious Puritan. He could 
demonstrate his religious merit, through his economic activity because 
he did nothing ethically reprehensible, he did not resort to any lax 
interpretations of religious codes or to systems of double moralities, and 
he did not act in a manner that could be indifferent or even repre- 
hensible in the general realm of ethical validity. On the contrary, the 
Puritan could demonstrate bis religious merit precisely in his economic 
activity. He acted in business with the best possible conscience, since 
through his rationalistic and legal behavior in his business activity he 
was factually objectifying the rational methodology of his total life pat- 
tern. He legitimated his ethical pattern in his own eyes, and indeed 
within the circle of his community, by the extent to which the absolute 
— not relativized — unassai I ability of his economic conduct remained 
be*'ond question. No really pious Puritan — and this is the crucial point 
— could nave regarded as pleasing to God any profit derived from usury, 
exploitation of another's mistake (which was permissible to the Jew), 
haggling and sharp dealing, or participation in political or colonial ex- 
ploitation. Quakers and Baptists believed their religious merit to be 
certified before all mankind by such practices as their fixed prices and 
their absolutely reliable business relationships with everyone, uncondi- 
tionally legal and devoid of cupidity. They believed that precisely such 
practices promoted the irreligious to trade with them rather than with 
their own kind, and to entrust their money to the trust companies or 
limited liability enterprises of the religious sectarians rather than those 
of their own people — all of which made the religious sectarians wealthy, 
even as their business practices certified them before their God. 

By contrast, the Jewish law applying to strangers, which in practice 
was the pariah law of the Jews, enabled them, nothwithstanding in- 



xv ] The Great Religions and the World 617 

numerable reservations, to engage in dealings with non-Jews which th^ 
Puritans rejected violently as showing the cupidity of the trader. Yet the 
pious Jew could combine such an attitude with strict legality, with com- 
plete fulfillment of the law, with all the inwardness of his religion, with 
the most sacrificial love for his family and community, and indeed with 
pity and mercy toward all God's creatures. For in view of the operation 
of the laws regarding strangers, Jewish piety never in actual practice 
regarded the realm of permitted economic behavior as one in which the 
genuineness of a person's obedience to God's commandments could be 
demonstrated. The pious Jew never gauged his inner ethical standards 
by what he regarded as permissible in the economic context. Just as" the 
Confucian's authentic ideal of life was the gentleman who had under- 
gone a comprehensive education in ceremonial esthetics and literature 
and who devoted lifelong study to the classics, so the Jew set up as his 
ethical ideal the scholar learned in law and casuistry, the intellectual 
who continuously immersed himself in the sacred writings and com- 
mentaries at the expense of his business, which he very frequently left 
to the management of his wife. 

It was this intfllectualist trait of authentic late Judaism, with its 
concern with literary scholarship, that Jesus revolted against. His criti- 
cism was not motivated by "proletarian" instincts, which some have 
attributed to him, but rather by his type of piety and his type of 
obedience to the law, both of which were appropriate to the rural artisan 
or the inhabitant of a small town, and constituted his basic opposition 
to the virtuosi of legalistic lore who had grown up on the soil of the 
■polls of Jerusalem. Members of such urban legalistic circles asked "What 
good can come out of Nazareth?" — the kind of question that might 
have been posed by any dweller of a metropolis in the classical world. 
Jesus' knowledge of the law and his observance of it was representative 
of that average lawfulness which was actually demonstrated by men 
"engaged in practical work, who could not afford to let their sheep lie 
in wells, even on the Sabbath. On the other hana^the knowledge of the 
law obligatory for the really pious Jews, as well as their legalistic educa- 
tion of the young, surpassed both quantitatively and qualitatively the 
preoccupation with the Bible characteristic of the Puritans. The scope 
of religious law of which knowledge was obligatory for the pious Jew 
may be compared only with the scope of ritual laws among the Hindus 
and Persians, but the Jewish law far exceeded these in its inclusion of 
ethical prescriptions beyond merely ritual and tabooistic norms. 

The economic behavior of the Jews simply moved in the direction of 
least resistance which was permitted them by these legalistic ethkal 
norms. This meant in practice that the "acquisitive drive," which is 



6 I 8 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [Ch. VI 

found in varying degrees in all groups and nations, was here directed 
primarily to trade with strangers, who were, usually regarded as enemies. 
Even at the time of Josiah and certainly in the post-exilic period, the 
pious Jew was an urban dweller, and the entire Jewish law was oriented 
to this urban status. Since the orthodox Jew required the services of 
a ritual slaughterer, he had necessarily to live in a community rather 
than in isolation. Even today residential clustering is characteristic of 
orthodox Jews when they are contrasted with Jews of the Reform 
group, as for example in the United States. Similarly, the Sabbatical 
year, which in its present form is probably a product of post-exilic urban 
scholars learned in the law, made it impossible for Jews to carry on 
systematic intensive cultivation of the land. Even at the present time, 
German rabbis endeavor to apply the prescription of the Sabbatical year 
to Zionist colonization in Palestine, which would be ruined thereby. 
In the age of the Pharisees a rustic Jew was of second rank, since he 
did not and could not observe the law strictly. Jewish law also prohibited 
the participation of Jews in the banquets of the guilds, in fact, all com- 
mensality with non-Jews; in Antiquity as well as in the Middle Ages 
commensality was the indispensable foundation for any kind of civic 
integration in the surrounding world. On the other hand, the Jewish 
institution of the dowry, common to the Orient and based originally on 
the exclusion of daughters from inheritance, favored the establishing 
of the Jewish groom at marriage as a small shopkeeper. Traces of this 
phenomenon are still apparent in the relatively undeveloped class con- 
sciousness of Jewish shop clerks. 

In all his other dealings, as well as those we have just discussed, the 
Jew— like the pious Hindu — was controlled by scruples concerning his 
Law. As Guttmann has correctly emphasized, genuine study of the Law 
could be combined most easily with the occupation of moneylending, 
which requires relatively little continuous labor.* The outcome of Jewish 
legalism and intellecrualist education was the Jew's methodical pattern- 
ing of life and his rationalism. It is a prescription of the Talmud that 
"A man must never change a practice." Only in the realm of economic 
relationships with strangers, and in no other area of life, did tradition 
leave a sphere of behavior that was relatively indifferent ethically. In- 
deed, the entire domain of things relevant before God was determined 
by tradition and the systematic casuistry concerned with its interpreta- 
.tion, rather than determined by rational purposes derived from natural 
law and oriented without further presupposition to methodical plans of 
action. The "rationalizing" effect of the Jewish fear of God's Law is 
thoroughly pervasive but entirely indirect. 

Self-control — usually accompanied by alertness, equableness, and 



xv ] The Great Religions and the World 6 i 9 

serenity — was found among Confucians, Puritans, Buddhist and other 
types of monks, Arab sheiks, and Roman senators, as well as among 
Jews. But the basis and significance of self-control were different in 
each case. The alert self-control of the Puritan flowed from the necessity 
of his subjugating all creaturely impulses to a rational and methodical 
plan of conduct, so that he might secure his certainty of his own salva- 
tion. Self-control appeared to the Confucian as a personal necessity 
which followed from his disesteem for plebeian irrationality, the dises- 
teem of an educated gendeman who had received classical training and 
had been bred along lines of propriety and dignity. On the other hand, 
the self-control of the devout Jew of ancient times was a consequence 
of the preoccupation with the Law in which his mind had been trained, 
and of the necessity of his continuous concern with the Law's precise 
fulfillment. The pious Jew's self-control received a characteristic coloring 
and effect from the situation of being piously engaged in fulfilling the 
Law. The Jew felt that only he and his people possessed this law, for 
which reason the world persecuted them and imposed degradation upon 
them. Yet this law was binding; and one day, by an act that might come 
suddenly at any time but that no one^ could accelerate, God would 
transform the social structure of the world, creating a messianic realm 
for those who had remained faithful to His law. The pious Jew knew 
that innumerable generations had awaited this messianic event, despite 
all mockery, and were continuing to await it. This.produced in the pious 
Jew a certain anxious wakefulness. But since it remained necessary for 
him to continue waiting in vain, he nurtured his feelings of self-esteem 
by a meticulous observance of the law for its own sake. Last but not 
least, the-pious Jew had always to stay on guard, never permitting him- 
self the free expression of his passions against powerful and merciless 
enemies. This repression was inevitably combined with the aforemen- 
tioned inevitable effect of the feeling of ressentiment which derived from 
Yahweh's promises and the resulting unparalleled sufferings of this people. 

These circumstances basically determined the rationalism of Juda- 
ism, but this is not "asceticism" in our sense. To be sure, there are 
ascetic traits in Judaism, but they are not central. Rather, they are by- 
products of the law or products of the peculiar tensions of Jewish piety. 
In any case, ascetic traits are of secondary importance in Judaism, as are 
any mystical traits developed within this religion. We need say nothing 
more here about Jewish mysticism, since neither cabalism, Chassidism 
nor any of its other forms — whatever symptomatic importance they held 
for Jews — produced any significant motivations toward practical be- 
havior in the economic sphere. 

The ascetic aversion of pious Jews toward everything esthetic was 



62 O RELIGIOUS CROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

originally based on the second commandment of the Decalogue, which 
actually prevented the once well-developed angelology of the Jews from 
assuming artistic form. But another important cause of aversion to things 
esthetic is the purely pedagogic and jussive character of the divine serv- 
ice in the synagogue, even as it was practiced in the Diaspora, long 
before the disruption of the Temple cult.. Even at that time, Hebrew 
prophecy had virtually removed plastic elements from the cult, effec- 
tively extirpating orgiastic, orchestral, and terpsichorean activities. It is 
of interest that Roman religion and Puritanism pursued similar paths 
in regard to esthetic elements, though for reasons quite different from 
the Jewish reasons. Thus, among the Jews the plastic arts, painting, and 
drama lacked those points of contact with religion which were elsewhere 
quite normal. This is the reason for the marked diminution of secular 
lyricism and especially of the erotic sublimation of sexuality, when con- 
trasted with the marked: sensuality of the earlier. Song of Solomon. The 
basis of all this is to be found in the naturalism of the Jewish ethical: 
treatment of sexuality. 

All these traits of Judaism are characterized by one overall theme: 
that the mute, faithful, and questioning expectation of a redemption 
from the hellish character of the life enforced upon the people who had 
been chosen by God (and definitely chosen, despite their present status) 
was ultimately refocused upon, the ancient promises and laws of the reli- 
gion. Conversely, it was held — there are corresponding utterances of 
the rabbis on this point— that any uninhibited surrender to the artistic 
or poetic glorification of this world is completely vain and apt to divert' 
the Jews from the ways and purposes, of God. After all, even the pur- 
pose of the creation of this world had already on occasion been prob- 
lematical to the Jews of the later Maccabean "period. 

Above all, what was lacking in Judaism was the decisive hallmark 
of the inner-worldly type of asceticism: an integrated relationship to the 
world from the point of view of the individual's conviction of salvation 
(certitudo sdutis), which nurtures all else. Again in this important 
matter, what was ultimately decisive for Judaism was the pariah charac- 
ter of the religion and the promises of Yahweh. An ascetic management 
of this world, such as that characteristic of Calvinism, was the very 
last thing of which a traditionally pious Jew would have thought. He 
could not think of methodically controlling the present world, which 
was so topsy-turvy because of Israel's sins, and which could not be set right 
by any human action but only by some free miracle of God that could 
not be hastened. He could not take as his "mission," as the sphere of his 
religious "vocation," the bringing of this world and its very sins under 
the rational norms of the revealed divine will, for the glory of_God and 



xv] The Great Religions and the World 6a i 

as an identifying mark of his own salvation. The pious Jew had a far 
more difficult destiny to overcome than did the Puritan, who could be 
certain of his election to the world beyond, It was incumbent upon the 
individual jew to make peace with the fact that the world would remain 
recalcitrant to die promises of God as long as God permitted the world 
to stand as it is. The Jew's responsibility was to make peace with this 
recalcitrancy of the world, while finding contentment if God sent him 
grace and success in his dealings with the enemies of his people, toward 
whom he must act soberly and legalistically, in fulfillment of the in- 
junctions of the rabbis. This meant acting toward non-Jews in an objec- 
tive or impersonal manner, without love and without hate, solely in 
accordance with what was permissible. 

The frequent assertion that Judaism required only an external ob- 
servance of the Law is incorrect. Naturally, this is. the average tendency; 
but the requirements for real religious piety stood on a much ■■ higher 
plane. In any case, Judaic -law fostered in its adherents a tendency to 
compare . individual actions with each other and to compute the net 
result of them all. This conception of man's relationship to God as a 
bookkeeping operation of single good and evil acts with an uncertain 
total (a conception which may occasionally be found among the Puri- 
tans as well) may not have been the dominant official view of Judaism. 
Yet it was sufficient, together with the double-standard morality of 
Judaism, to prevent the development within Judaism of a methodical 
and ascetic orientation to the conduct of life on the scale that such an 
orientation developed in Puritanism... J t is also important that in Juda- 
ism, as in Catholicism, the individual's activities in fulfilling particular 
religious injunctions w§re tantamount to his assuring his own chances 
of salvation. However, in both Judaism and Catholicism, God's grace 
was needed to supplement human inadequacy, although this depend- 
ence upon God's grace was not as universally recognized in Judaism as 
•in Catholicism. 

The ecclesiastical provision of grace was much less developed in 
Judaism, after the decline of the older Palestinian confessional (teshu-; 
bah), than in Catholicism. In practice, this resulted in the Jew's having 
a greater religious responsibility for himself. This responsibility for one- 
self and the absence of any mediating religious agency necessarily made 
the Jewish pattern of life more systematic and personally responsible 
than the corresponding. Catholic pattern of life. Still, the methodical 
control of life was limited in Judaism by the absence of the distinctively 
ascetic motivation characteristic of Puritans and by the continued 
presence of Jewish internal morality's traditionalism, which in principle 
remained unbroken. To be sure, there were present in Judaism numer- 



622 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

ous single stimuli toward practices that might be called ascetic, but the 
unifying force of a basically ascetic religious motivation was lacking. 
The highest form of Jewish piety is found in the religious mood (Stint- 
mung) and not in active behavior. How could it be possible for the Jew 
to feel that by imposing a new rational order upon the world he would 
become the human executor of God's will, when for the Jew this world 
was thoroughly contradictory, hostile, and— as he had known since the 
time of Hadrian — impossible to change by human action? This might 
have been possible for the Jewish freethinker, but not for the pious Jew. 
Puritanism always felt its inner similarity to Judaism, but also felt 
the limits of this similarity. The similarity in principle between Chris- 
tianity and Judaism, despite all their differences, remained the same for' 
the Puritans as it had been for the Christian followers of Paul. Both the 
Puritans and the early Christians always looked upon the Jews as the 
people who had once been chosen by God. But the unexampled activ- 
ities of Paul had the following significant effects for early Christianity. 
On the one hand, Paul made the sacred book of the Jews into one of 
the sacred books of the Christians, and at the beginning the only one. 
He thereby erected a stout fence against all intrusions of Greek, espe- 
cially Gnostic, intellectualism, as Wemle in particular has pointed out. 1 
But on the other hand, by the aid of a dialectic that only a rabbi could 
possess, Paul here and there broke through what was most distinctive 
and effective in the Jewish law, namely the tabooistic norms and the 
overpowering messianic promises. Since these taboos and promises linked 
the whole religious worth of the Jews to their pariah position, Paul's 
breakthrough was fateful in its effect. Paul accomplished this break- 
through by interpreting these promises as having been pardy fulfilled 
and partly abrogated by the birth of Christ. He triumphantly employed 
the highly impressive proof that the patriarchs of Israel had lived in ac- 
cordance with God's will long before the issuance of the Jewish taboos 
and messianic promises, showing that they found blessedness through 
faith, which was the surety of God's election. 

„The dynamic power behind the incomparable missionary labors of 
Paul was his offer to the Jews of a tremendous release, the release pro- 
vided -by the consciousness of having escaped the fate of pariah status. 
A Jew could henceforth be a Greek among Greeks as well as a Jew 
among Jews, and could achieve this within the paradox of faith rather 
than through an enlightened hostility to religion. This was the passion- 
ate feeling of liberation brought by Paul. Tne Jew could actually free 
himself from the ancient promises of his God, by placing his faith in the 
new savior who had believed himself abandoned upon the cross by that 
very God. 



xv ] The Great Religions and the Wcrld 61, 3 

Various consequences flowed from this rending of the sturdy chains 
that had bound the Jews firmly to their pariah position. One was the 
intense hatred of this one man Paul by the Jews of the Diaspora, suf- 
ficiently authenticated as fact. Among the other consequences may be 
mentioned the oscillations and utter uncertainty of the early Christian 
community; the attempt of James and the "pillar aposdes" to establish 
an ethical minimum of law which would be valid and binding for all, 
in harmony with Jesus' own layman's understanding of the law; and 
finally, the open hostility of the Jewish Christians. In every line that Paul 
wrote we can feel his overpowering joy at having emerged from the hope- 
less "slave law" into freedom, through the blood of the Messiah. The 
overall consequence was the possibility of a Christian world misison. 

The Puritans, like Paul, rejected the Talmudic law and even the 
characteristic ritual laws of the Old Testament, while taking over and 
considering as binding — for all their elasticity — various other expressions 
of God's will witnessed in the Old Testament. As the Puritans took 
these over, they always conjoined norms derived from the New Testa- 
ment, even in matters of detail. The Jews who were actually welcomed 
by Puritan nations, especially the Americans, were not pious orthodox 
Jews but rather Reformed Jews who had abandoned orthodoxy, Jews 
such as those of the present time who have been trained in the Educa- 
tional Alliance, and finally baptized Jews. These groups of Jews were 
at first welcomed without any ado whatsoever and are even now wel- 
comed fairly readily, so that they have been absorbed to the point of the 
absolute loss of any trace, of difference. This situation in Puritan coun- 
tries contrasts with the situation in Germany, where the Jews remain — 
even after long generations — "assimilated Jews." These phenomena 
clearly manifest the actual kinship of Puritanism to Judaism. Yet pre- 
cisely the non-Jewi$h element in Puritanism enabled Puritanism to play 
its special role in the creation of the modem economic temper, and also 
to carry through the aforementioned absorption of Jewish proselytes, 
which was not accomplished by nations with other than Puritan orien- 
tations. 



3 . The This-Worldliness of Islam and Its Economic 
Ethics 

Islam, a comparatively late product of Near Eastern monotheism, in 
which Old Testament and Jewish-Christian elements played a very im-i 
portant role, "accommodated" itself to the world in a sense very different 
from Judaism. In the first Meccan period of Islam, the eschatological 



6'7.4 religious groups (Sociology 'of religion) [ Ch. VI 

religion of Muhammad developed m pietistic urban conventicles which 
displayed a tendency to withdraw from the world. But in the subsequent 
developments in Medina and m the evolution of the early Islamic com- 
munities, the religion was transformed from its pristine form into a 
national Arabic warrior, religion, and even later into a religion with very 
strong status emphasis. Those followers whose conversion to Islam made 
possible the decisive success of the Prophet were consistently members 
of powerful families. 

The religious commandments of the holy war were not directed in 
the first instance to the purpose of conversion. Rather, the primary pur- 
pose was war "until they (the followers of alien religions of the boot) 
will humbly pay die tribute (jizyo&)" i.e., until Islam should rise to 
the top of this world's social scale, by exacting tribute from other reli- 
gions. This is not the only factor that stimps Islam as rhe religion of 
masters. Military booty is important in the ordinances, in the promises, 
and above all m the expectations characrenzmg' particularly the most 
/anctent period of the religion. Even the ultimate elements of its eco- 
nomic ethic were purely feudal. The most pious adherents of the reli- 
gion in its first generation became the wealthiest, or more correctly, 
enriched themselves with military booty — in the widest sense — more 
than did other members of the faith. 

The role played by' wealth accruing from spoils of war and from 
political aggrandizernent in Islam is diametrically opposed to the role 
played by wealth in the Puritan religion. The Muslim tradition depicts 
with pleasure the luxurious raiment;" pei&rriejr'arfd^ 
coiffure of the pious. The saving that "when god blesses a man with 
prosperity he likes to see the signs thereof visible upon him"— -made by 
Muhammad, according to tradition, to well-circumstanced people who 
appeared before him in ragged attire— stands in extreme opposition to 
any Puritan economic' ethic and thoroughly corresponds with feudal 
conceptions of status. This saying "would mean, in our language, that a 
wealthy man rs obligated "to live in keeping with his status." In the 
Koran, Muhammad is represented as completely rejecting every type 
of monasticism Cwhbaniya'), though not all asceticism, for he did accord 
respect to fasting, begging, and penitential mortification. Muhammad's 
attitude in opposition to: chastity may have sprung from personal motiva- 
tions similar to those apparent in Luther's famous remarks which are 
so expressive of his strongly sensual nature; i.e., in the conviction, also 
found in the Talmud, that whoever has not married by a certain age 
must be a sinner. Biitw* would have to regard as unique in thehagiology 
of ah ethical religion of salvation Muhammad's dictum expressing doubt 
about the ethical character 'of a person who has abstained from eating 



xv } - The Great Religions and the World 625 

meat for forty days; as well as the reply of a renowned pillar'of ancient 
Islam, celebrated by some as a Mahdi, to the question why he, unlike 
his father Ali, had used cosmetics for his hair: "'In order to be more 
successful with women." 

But Islam was never really a religion of salvation; the ethical con* 
cept of salvation was actually alien to Islam. The god it taught was a 
lord of unlimited power, although merciful, the fulfillment of whose 
commandments was not beyond human power. An essentially political 
character marked all the chief ordinances of Islam: the elimination of 
private feuds in the interest of increasing the group's striking power 
against external foes; the proscription of illegitimate forms of sexual 
behavior and the regulation of legitimate sexual relations along strongly 
patriarchal lines (actually creating sexual privileges only for the wealthy, 
in view of the facility of divorce and the maintenance of concubinage 
with female slaves); the prohibition of usury; the prescription of taxes 
for war; and the injunction to support the poor. Equally political in 
character is the distinctive religious obligation in Islam, its only required 
dogma : the recognition of Allah as the one god and of Muhammad as 
his prophet. In addition, there were the obligations to journey to Mecca 
once during a lifetime, to fast by day during the month of fasting, to 
attend services once a week, and to observe the obligation of daily 
prayers. Finally, Islam imposed such requirements for everyday living as 
the wearing of distinctive clothing (a requirement that even today has 
important economic consequences whenever savage tribes are converted 
to Islam) and the avoidance of certain unclean foods, of wine, and of 
gambling. The restriction against gambling obviously had important con- 
sequences for the religion's attitude toward speculative business enter- 
prises. 

There was nothing in ancient Islam like an individual quest for 
salvation, nor was there any mysticism. The religious promises in the 
earliest period of Islam pertained to this world. Wealth, power, and 
glory were all martial promises, and even the world beyond is pictured 
in Islam as a soldier's sensual paradise. Moreover, the original Islamic 
conception of sin has a similar feudal orientation. The depiction of the 
prophet of Islam as devoid of sin is a late theological' construction, 
scarcely consistent with the actual nature of Muhammad's strong sensual 
passions and his explosions of wrath Over very small provocations. In- 
deed, such a picture is strange even to the Koran, just as after Muham- 
mad's transfer to Medina he lacked any sort of tragic sense of sin. The 
original feudal conception of sin remained dominant in orthodox Islam, 
for which sin is a composite of ritual impurity, ritual sacrilege (shirk, 
i.e., polytheism), disobedience to the positive injunctions of the prophet; 



626 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ch. VI 

and the violation of status prescriptions by infractions of convention or 
etiquette. Islam displays other characteristics of a distinctively feudal 
spirit: the obviously unquestioned acceptance of slavery, serfdom, and 
polygamy; the disesteem for and subjection of women; the essentially 
ritualistic character of religious obligations; and finally, the great sim- 
plicity of religious requirements and the even greater simplicity of the 
modest ethical requirements. 

Islam was not brought any closer to Judaism, and to Christianity in 
decisive matters by such Islamic developments as the achievement of 
great scope through the rise of theological and juristic casuistry, the ap- 
pearance of both pietistic and enlightenment schools of philosophy (fol- 
lowing the intrusion of Persian Sufism, derived from India), and the 
formation of the order of dervishes (still today strongly under Indian 
influence). Judaism and Christianity were specifically bourgeois-urban 
religions, whereas for Islam the city had only political importance. A 
certain sobriety in the conduct of life might also be produced by the 
nature of the official cult in Islam and by its sexual and ritual command- 
ments. The petty-bourgeois stratum was largely the carrier of the 
dervish religion, which was disseminated practically everywhere and 
gradually grew in power, finally surpassing the official ecclesiastical re- 
ligion. This type of religion, with its orgiastic and mystical elements, 
with its essentially irrational and extraordinary character, and with its 
official and thoroughly traditionalistic ethic of everyday life, became 
influential in Islam's missionary enterprise because of its great simplicity. 
It directed the conduct of life into paths whose effect was plainly opposite 
to the methodical control of life found among Puritans, and indeed, 
found in every type of asceticism oriented toward the control of the world. 

Islam, in contrast to Judaism, lacked the requirement of a compre- 
hensive knowledge of the law and lacked that intellectual training in 
casuistry which nurtured the rationalism of Judaism. The ideal per- 
sonality type in the religion of Islam was not the scholarly scrihe 
(Literal), but the warrior. Moreover, Islam lacked all those promises of 
a messianic realm upon earth which in Israel were linked with me- 
ticulous fidelity to the law, and which — together with the priesdy 
doctrine of the history, election, sin and dispersion of the Jews— deter- 
mined the fateful pariah character of the Jewish religion. 

To be sure, there were ascetic sects among the Muslims. Large 
groups of ancient Islamic warriors Were characterized by a trend toward 
simplicity; this prompted them from the outset to oppose the rule of the 
Umayyads. The latter's merry enjoyment of the world presented the 
strongest contrast to the rigid discipline of the encampment fortresses in 
which Umar had concentrated Islamic warriors in the conquered do- 



xv ] - The Great Religions and the World 627 

mains; in their stead there now arose a feudal aristocracy. But this was 
the asceticism of a military caste, of a martial order of knights, not of 
monks. Certainly it was not a middle-class ascetic systematization of the 
conduct of life. Moreover, it was effective only periodically, and even 
then it tended to merge into fatalism. We have already spoken of the 
quite different effect which is engendered in such circumstances hy a 
belief' in providence. Islam was diverted completely from any really 
methodical control of life by the advent of the cult of saints, and finally 
by magic. 



4. The Other-Worldliness of Buddhism and Its Economic 
Consequences 

At the opposite extreme from systems of religious ethics preoccupied 
with the control of economic affairs within the world stands the ultimate 
ethic of world-rejection, the mystical illuminative concentration of au- 
thentic ancient Buddhism (naturally not the completely altered mani- 
festations Buddhism assumed in Tibetan, Chinese, and Japanese popular 
religions). Even this most world-rejecting ethic is "rational," in the sense 
that it produces a constantly alert control of all natural instinctive drives, 
though for purposes entirely different from those of inner-worldly 
asceticism. Salvation is sought, not from sin and suffering alone, but 
also from ephemeralness as such; escape from the wheel of karma-ca.u- 
saiity into eternal rest is the goal pursued. This search is, and can 
only be, the highly individualized task of a particular person. There 
is no predestination, but neither is there any divine grace, any prayer, 
or any religious service. Rewards and punishments for every good and 
every evil deed are automatically established by the fearwia-causality of 
the cosmic mechanism of compensation. This retribution is always pro- 
portional, and hence always limited in time. So long as the individual is 
driven to action by the thirst for life, he must experience in full measure 
the fruits of his behavior in ever-new human existences. Whether his 
momentary situation is animal, heavenly, or hellish, he necessarily creates 
new chances for himself in the future. The most noble enthusiasm and 
the most sordid sensuality lead equally into new existence in this chain 
of individuation (it is quite incorrect to term this process transmigration 
of souls, since Buddhist metaphysics knows nothing of a soul). This 
■process of individuation continues on as long as the thirst for life, in 
this world or in the world beyond, is not absolutely extinguished. The 
process is but perpetuated by the individual's impotent struggle for his 



628 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

personal existence with all its illusions, above all the illusion of a distinc- 
tive soul or personality. 

All rational purposive activity is regarded as leading away from sal- 
vation, except of course the subjective activity of concentrated contem- 
plation, which empties the soul of the passion for life and every connec- 
tion with worldly interests. The achievement of salvation is possible for 
-only a few, even of those who have resolved to live in poverty, chastity, 
■and unemployment (for labor is purposive action), and hence in men- 
dicancy. These chosen^few are required to wander ceaselessly — except 
at the time of the heavy^-rains — freed from all personal ties to family 
and world, pursuing the goal of mystical illumination by fulfilling the 
injunctions relating to the correct pa&'Gft«r»*0. When such salvation 
is gained, the deep joy and tender, undifferentiated love characterizing 
such illumination provides the highest blessing possible in this existence, 
short of absorption into the eternal dreamless sleep of Nirvana, the only 
state in which no change occurs. All other human beings may improve 
thei**situations in future existences by approximating the prescriptions 
of the rule of Hfe and by avoiding major sins in this existence. Such 
future existences are inevitable, according to the karma doctrine of 
causality, because the ethical account Has not been straightened out, 
the thirst for life has not been "abreacted,v so to speak. For most people, 
therefore, some pew individuation is inevitable when the present life 
has ended, and truly eternal salvation remains inaccessible. 

There is no path leading from this ohly really consistent position 
of worid-fiight to any economic ethic or to iny rational social ethic. The 
universal mood of pity, extending to all creatures, cannot be the carrier 
of any rational behavior and in fact leads ^way from it. This mood of 
pity is the logical consequence of contemplative ■• mysticism's position 
regarding the solidarity of all living, and hence transitory, beings. This 
solidarity . follows from the common Jfcarma-causality which overarches 
all living beings. In Buddhism, the psychological basis for this universal 
pity is the religion's mystical, euphoric, universal, and acosmistic love. 

Buddhism is the most consistent of the salvation doctrines produced 
before aiid after by the artellectualism of educated Indian strata. Its cool 
and proud emancipation of the individual from hfe as such, which in 
effect stood the individual on his own feet, could never become a popular 
salvation faith. Buddhism's influence beyond the circle of the educated 
was due to the tremendous prestige traditionally enjoyed by the. shto- 
**»«, i-e., the ascetic, which possessed magical and anthropolatric traits. 
As soon as Buddhism became a missipnizing popular religion, it duly 
transformed itself into a savior religion^ based on karma compensation, 
with hopes for the world beyond guaranteed by devotional techniques, 



wv ] "" The Great Religions and the World 629 

cultic and sacramental grace, and deeds of mercy. Naturally, Buddhism 
also tended to welcome purely magical notions. 

In India itself, Buddhism succumbed, among the upper classes, to a 
renascent philosophy of salvation based on the Vedas; and it met com- 
petition from Hinduistic salvation religions, especially ', the various forms 
of Vishnuism, from Tantristic magic, and from orgiastic mystery religions, 
notably the bhakti piety (love of god). In Lamaism, Buddhism became 
the purely monastic religion of a theocracy which controlled the laity by 
ecclesiastical powers of a thoroughly magical nature. Wherever Buddhism 
was diffused in the Orient, its idiosyncratic character underwent striking 
transformation as it competed and entered into diverse combinations 
with Chinese Taoism, thus becoming the region's typical mass religion, 
which pointed beyond this world and the ancestral cult and which 
distributed grace and salvation. 

At all events, no motivation toward a rational system for the methodi- 
cal control of life flowed from Buddhist, Taoist, or Hindu piety. Hindu 
piety in particular, as we have already suggested, maintained the strong- 
est possible power of tradition, since the presuppositions of Hinduism 
constituted the most consistent religious expression of the organic view 
of society. The existing order of the world was provided absolutely 
unconditional justification, in terms of the mechanical operation of a 
proportional retribution in the distribution of power and' happiness to 
individuals on the basis of their merits and failures in. their earlier 
existences. 

All these popular religions of Asia left room for the acquisitive drive 
of the tradesman, the interest of the artisan in sustenance (Nahrungs- 
Interesse), and the traditionalism of the peasant. These popular religions 
also left undisturbed both philosophical speculation and the conventional 
status-oriented life patterns of privileged groups. These status-oriented 
patterns of the privileged evinced feudal characteristics in Japan; patri- 
monial-bureaucratic, and hence strongly utilitarian features in China; 
and a mixture of knightly, patrimonial, and intellectualistic traits in 
India. None of these niass religions of Asia, heaver, provided the 
motives or orientations for a rationalized ethical trah^formation of a 
creaturely world in accordance with divine commandments. RatherVthey 
all accepted this world as eternally given, and so the best of all possible 
worlds. The only choice open to the sages, who possessed the highest 
type of piety, was whether to accommodate themselves to the Tao, the 
impersonal order of the world and the only thing specifically divine, or 
to save themselves &brh the inexorable chain of causality by passing into 
the only eternal rjeing, the dreamless sleep of Nirvana. 

"Capitalfeni'' existed among all these religic«s, c? the sarhe feind'as 



6 3 O RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ CJt. VI 

in Occidental Antiquity and the medieval period. But there was no de- 
velopment toward modem capitalism, nor even any stirrings in that 
direction. Above all, there evolved no "capitalist spirit," in the sense that 
is distinctive of ascetic Protestantism. But to assume that the Hindu, 
Chinese, or Muslim merchant, trader, artisan, or coolie was animated 
by a weaker "acquisitive drive" than the ascetic Protestant is to Sy in 
the face of the facts. Indeed, the reverse would seem to be true, for what 
is distinctive of Puritanism is the rational and ethical limitation of the 
quest for profit. There is no proof whatever that a weaker natural 
"endowment" for technical economic rationalism was responsible for 
the actual difference in this respect. At the present time, all these people 
import this "commodity" as the most important Occidental product, and 
whatever impediments exist result from rigid traditions, such as existed 
among us in the Middle Ages, not from any lack of ability or will. Such 
impediments to rational economic development must be sought primarily 
in the domain of religion, insofar as they must not be located in the 
purely political conditions, the structures of domination, with which we 
shall deal later. 

Only ascetic Protestantism completely eliminated magic and the 
supernatural quest for salvation, of which the highest form was ,in- 
tellectualist, contemplative illumination. It alone created the religious 
motivations for seeking salvation primarily through immersion in one's 
worldly vocation (Bemf). This Protestant stress upon the methodically 
rationalized fulfillment of one's vocational responsibility was diamet- 
rically opposite to Hinduism's strongly traditio^alistic concept of. voca- 
tions. For the various popular religions of Asia, in contrast to ascetic - 
Protestantism, the world remained a great enchanted garden, in which 
the practical way to orient oneself, or to find security in this world or 
the next, was to revere or coerce the spirits and seek salvation through 
ritualistic, idolatrous, or sacramental procedures. No path led from the 
magical religiosity of the non-intellectual strata of Asia to a rational, 
methodical control of life. Nor did any path lead to that methodical 
control from the world accommodation of Confucianism, from the world- 
rejection of Buddhism, from the world-conquest of Islam, or from the 
messianic expectations and economic pariah law of Judaism. 



5. Jesus' Indifference Toward the World 

The second great religion of world-rejection, in our special sense 
of the term, was early Christianity, at the cradle of which magic and 
belief in demons were also present. Its Savior was primarily a magician 



xv } - The Great Religions and the World 6 3 1 

whose magical charisma was an ineluctable source of his unique feeling 
of individuality. But the absolutely unique religious promises of Judaism 
contributed to the determination of the distinctive character of early 
Christianity. It will be recalled that Jesus appeared during the period 
of the most intensive messianic expectations. Still another factor con- 
tributing to the distinctive message of Christianity was its reaction to 
the unique concern for erudition in the Law characteristic of Jewish 
piety. The Christian evangel arose in opposition to this legalistic erudi- 
tion, as a non-intellectual's proclamation directed to non-intellectuals, 
to the "poor in spirit." Jesus understood and interpreted the "law," from 
which he desired to remove not even a letter, in a fashion common to 
the lowly and the unlearned, the pious folk of the countryside and the 
small towns who understood the Law in their own way and in ac- 
cordance with the needs of their own occupations, in contrast to the 
Hellenized, wealthy and upper-class people and to the erudite scholars 
and Pharisees trained in casuistry. Jesus' interpretation of the Jewish 
law was milder than theirs in regard to ritual prescriptions, particularly 
in regard to the keeping of the Sabbath, but stricter than theirs in other 
respects, e.g., in regard to the grounds for divorce. There already ap- 
pears to have been an anticipation of the Pauline view that the require- 
ments of the Mosaic law were conditioned by the sinfulness of the super- 
ficially pious. There were, in any case, instances in which Jesus squarely 
opposed specific injunctions of the ancient tradition. 

Jesus' distinctive self-esteem did not come from anything like a "pro- 
letarian instinct" but from the knowledge that the way to God neces- 
sarily led through him, because of his oneness with the Godly patriarch. 
His self-esteem was grounded in the knowledge that he, the non-scholar, 
possessed both the charisma requisite for the control of demons and a 
tremendous preaching ability, far surpassing that of any scholar or 
Pharisee, This self-esteem involved the conviction that his power to 
exorcise demons was operative only among the people who believed in 
him, even if they be heathens, not in his home town and his own family 
and among the wealthy and high-bom of the land, the scholars, and the 
legalistic virtuosi — among none of these did he find the faith that gave 
him his magical power to work miracles. He did find such a faith among 
the poor and the oppressed, among publicans and sinners, and even 
among Roman soldiers. It should never be forgotten that these charis- 
matic powers were the absolutely decisive components in Jesus' feelings 
concerning his messiahship. These powers were the fundamental issue 
in his denunciation of the Galilean cities and in his angry curse upon 
the recalcitrant fig tree. His feeling about his own powers also explains 
why the election of Israel became ever more problematical to him and 



632 RELIGIOUS GROUPS (SOCIOLOGY OF RELIGION) [ Ck. VI 

the importance of the Temple ever more dubious, while the rejection of 
the Pharisees and the scholars became increasingly certain to him, 

Jesus recognized two absolutely mortal sins. One was the "sin against 
the spirit" committed by the scriptural scholar who disesteemed charisma 
and its bearers. The other was unbrotherly arrogance, such as the arro- 
gance of the intellectual toward the poor inspirit, when the intellectual 
hurls at his brother the exclamation "Thou fool!" This anti-intellectuahst 
rejection of scholarly arrogance and of Hellenic and rabbinic wisdom 
is the only "status element" of Jesus' message, though it is very distinc- 
tive. In general, Jesus' message is far from being a simple proclamation 
for every Tom, Dick, and Harry, for all the weak, of the world. True, 
the yoke is light, but only for those who can once again become as little 
children. In truth, Jesus set up the most tremendous requirements for 
salvation; his doctrine has real aristocratic qualities. . 

Nothing was further from Jesus' mind than the notion of the urn'- 
versalism of divine grace. On the contrary, he directed his whole preach- 
ing against this notion. Few are chosen to pass through the narrow gate, 
to repent and to believe in Jesus. God himself impedes the salvation of 
the others and hardens their hearts, and naturally it is the proud and the 
rich who are most overtaken by this fate. Of course this element is not 
new, since it can be found in the older prophecies.: The older Jewish 
prophets had taught that, in view of the arrogant behavior of the highly 
placed, the Messiah would be a king who would enter Jerusalem upon 
the beast of burden used by the poor. This implies no "social equali- 
tarianism." Jesus lodged with the wealthy* .which-, was, iitM£Uy:*epre- 
hensible in the eyes of -the. virtuosi of the law, and when he bade the 1 
rich young man give away his wealth, Jesus expressly enjoined' this act 
only if the young man wished to be "perfect," i.e., a disciple. Complete 
emancipation from all ties of the world, from family as well as posses- 
sions, such as we find in the teachings of the Buddha and similar 
prophets, was required Only of disciples. Yet, although all things are 
possible for God, continued attachment to Mammon constitutes one of 
the most difficult impediments to salvation into the Kingdom of God 
— for attachment to Mammon diverts the individual from religious sal- 
vation, the most important thing in the world* 

Jesus nowhere explicitly states that preoccupation with wealth leads 
to unbrotherliness, hut this notion is at the heart of the matter, for the 
prescribed-injunctions definitely contain the primordial ethic of mutual 
help which is characteristic of neighborhood associations of poorer peo- 
ple. The chief .difference is that in Jesus': message acts of mutual help 
have been systematized into Gesinrtungsethik involving a fratemalistic 
sentiment of love. The injunction of mutual help was also construed 



xv ] The Great Religions and the World 633 

universalistically, extended to everyone. The "neighbor" is the one 
nearest at hand. Indeed, the notion of mutual help was enlarged ipto 
an acosmistic paradox, based on the axiom that God alone can and will 
reward. Unconditional forgiveness, unconditional charity, unconditional 
love even or' enemies, unconditional suffering of injustice without re- 
quiting evil by force — these demands for religious heroism could have 
been products of a mystically conditioned aeosmism of love. But it must 
not be overlooked, as it so often has been, that Jesus combined acosmistic 
love with the Jewish notion of retribution. God alone will one day 
compensate, avenge, and reward. Man must not boast of his virtue in 
having performed any of the aforementioned deeds of love, since his 
boasting would preempt his subsequent reward. To amass treasures in 
heaven one must in this world lend money to those from whom no 
repayment can be expected; otherwise, there is no merit in the deed. A 
strong emphasis upon the just equalization of destinies was expressed by 
Jesus in the legend of -Lazarus and elsewhere. From this perspective 
alone, wealth is already a dangerous gift- 
But Jesus held in general that what is most decisive for salvation 
is an absolute indifference to the world and its concerns. The kingdom 
of heaven, a realm of joy upon earth, utterly without suffering and sin, 
is at hand; indeed, this generation will not die before seeing it. It will 
come like a thief at night; it is already in the process of appearing among 
mankind. Let man be free with the wealth of Mammon, instead of 
clutching it fast; let man render unto Caesar that which is Caesar's — 
for what profit is there in such matters? Let man pray to God for daily 
bread and remain unconcerned for the morrow. No human action can 
accelerate the coming of the kingdom, but man should prepare himself 
for its coming. Although this message did not formally abrogate the 
law, It did place the emphasis throughout upon religious 'sentiment. The 
entire content of the law and the prophets was condensed into the 
simple commandment to love God and one's fellow man, to which was 
added the one far-reaching conception diat the true religious mood is to 
be judged by its fruits, by its faithful demonstration (Bew&hrung). 

The visions of the resurrection, doubdess under the influence of the 
widely diffused soteriological myths, generated a tremendous growth in 
pneumatic manifestations of charisma; in the formation of communities, 
beginning with Jehus' own family, which originally had not shared 
Jesus' faith; and in missionary activity among the heathens. Nascent 
Christianity maintained continuity with the older Jewish prophecies 
even after the fateful conversion of Paul had resulted in a breaking 
away from the pariah religion. As a result of these developments, two 
new attitudes toward the world became decisive in the Christian mis- 



634 RELIGIOUS GROUPS (SOCIOLOGY OP RELIGION) [ Ch. VI 

sionaiy communities. One was the expectation of the Second Coming, 
and the other was the recognition of the tremendous importance of 
charismatic gifts of the spirit. The world would remain as it was until 
the master would come. So too the individual was required to abide in 
his position and in his calling (kA^™), subordinate to the authorities, 
save where they demanded of him that he perpetrate a sinful deed.* 



NOTES 

1, See Werner Sombart, The Jews and Modern Capitalism (London: 
Fischer Un win, 1913), 2306*. 

2. Cf. Weber, Protestant Ethic, 1 75. 

3, On the commenda and the commandite, see Weber, HandehgeseU- 
schaften (1889), 1924 reprint in GAzSW, 3398, and Economic History, ch. 17, 
"Forms of Commercial Enterprise." The maona comprised various types of associa- 
tions employed in Italian cities for the running of a Seet or the exploitation of an 
overseas colony. 

4. See Julius Guttmann, "Die Juden and das Wirtschaftsleben," AfS, vol. 
36, 1913, i49ff- This is a critique of Sombait*s book. (W) 

5. Paul Wernle, The Beginnings of Christianity (New York: Putnam, 
1904), vol. II, ch. IX, esp. 192?. , 

6, According to notes in the manuscript, this section was to have been ex- 
panded further. (W) 



CHAPTE 



H VII 



THE MARKET: ITS 
IMPERSONALITY AND 

ETHIC (Fragment/ 



Up to this point we have discussed group formations that rationalized 
their social action only in part, but for the rest had the most diverse 
structures — more amorphous or more rationally organized, more con- 
tinuous or more intermittent, more open or more closed. In contrast to 
all of them stands, as the archetype of all rational social action (rationales 
Geselhchajtshandeln), consociation (yergeselhchajtung) through ex- 
change in the market. 

A market may be said to exist wherever there is competition, even 
if only unilateral, for opportunities of exchange among a plurality of 
potential parties. Their physical assemblage in one place, as in the local 
market square, the fair (the "long distance market"), or the exchange 
(the merchants' market), only constitutes the most consistent kind of 
market formation. It is, however, only this physical assemblage which 
allows the full emergence of the market's most distinctive feature, viz,, 
dickering. Since the discussion of the market phenomena constitutes 
essentially the content of economics (Sozialokonomik), it will not be 
presented here. From a sociological point of view, the market represents 
a coexistence and sequence of rational consociations, each of which is 
specifically ephemeral insofar as it ceases to exist with the act of exchang- 
ing the goods, unless a norm has been promulgated which imposes upon 
the transferors of the exchangeable goods the guaranty of their lawful 
acquisition as warranty of tide. or of quiet enjoyment. The completed 
barter constitutes a consociation only with the immediate partner. The 



636 THE MARKET: ITS IMPBRSONAXITY AND ETHIC [ Ck. Vll 

preparatory dickering, however, is always a social action (Gemeinsckafts- 
handeln) insofar as the potential partners are guided in their offers by 
the potential action of an indeterminately large group of real or im- 
aginary competitors rather than by their own actions alone. The more 
this is true, the more does the market constitute social action. Further- 
more, any act of exchange involving the use of money (sale) is a social 
action simply because the money used derives its value from its relation 
to the potential action of others. Its acceptability rests exclusively on the 
expectation that it will continue to be desirable and can be further used 
as a means of payment. Group formation (Vergemeinsckaftung) through 
the use of money is the exact counterpart to any consociation through* 
rationally agreed or imposed norms. 

Money creates a group by virtue of material interest relations be- 
tween actual and potential participants in the market audits payments. 
At the fully developed stage, the so-called money economy, the resulting 
situation looks as if it had been created by a set of norms established 
for the very purpose of bringing it into being. The explanation lies in 
this: Within the market community every act of exchange, especially 
monetary exchange, is not directed, in isolation, by the action of the 
individual partner to the particular transaction, but the more rationally 
it is considered, the more it is directed by the actions of all parties po- 
tentially interested in the exchange. The market community as such is 
the most impersonal relationship of practical life into which humans 
can enter with one another. This is. not due to that potentiality of 
struggle among the interested parties which is inherent in the market 
relationship. Any human relationship, even the most intimate, and even- 
though it be marked by the most unqualified personal devotion, is in 
some sense relative and may involve a struggle with the partner, for in- 
stance, over the salvation of his soul. The reason for the impersonality 
of the market is its matter-of-faetness, its orientation to the commodity 
and only to that. Where the market is allowed to follow its own autono- 
mous tendencies, its participants do not look toward the persons of each 
other hut only toward the commodity; there are no obligations of 
brotherliness or reverence, and none of those spontaneous human rela- 
tions that are sustained by personal unions. They all would just obstruct 
the free development of the bare market relationship, and its specific 
interests serve, in their turn, to weaken the sentiments on which these 
obstructions rest. Market behavior is influenced by rational, purposeful 
pursuit of interests. The partner to a transaction is expected to behave 
according to rational legality ' and, quite particularly, to respect the 
formal inviolability of a promise once given. These are the qualities 
which form the content of market ethics. In this latter respect the 
market inculcates, indeed, particularly rigorous conceptions." Violations 



A Fragment 637 

of agreements, even though they may be concluded by mere signs, en- 
tirely unrecorded, and devoid of evidence, are almost unheard of in the 
annals of the stock exchange. Such absolute depersonalization is con- 
trary to all the elementary forms of human relationship. Sombart has 
pointed out this contrast repeatedly and brilliantly. 1 

The "free" market, that is, the market which is riot bound by ethical 
norms, with its exploitation of constellations of interests and monopoly 
positions and its dickering, is art abomination to eveiy system of fra- 
ternal ethics. In sharp contrast to all other groups which always pre- 
suppose some measure of personal fraternization or even blood kinship, 
the market is Fundamentally alien tG arty type of fraternal relationship. 

At Gist, free exchange does not occur but with the world outside 
of the neigh barhood or the personal association. The market is a rela- 
tionship which transcends the boundaries of neighborhood, kinship 
group, or tribe. Originally, it is indeed the only peaceful relationship of 
such kind. At first, fellow members did not trade with one another with 
the intention of obtaining profit. There was, indeed, no need for such 
transactions in ah age of self-sufficient agrarian units. One : of the most 
characteristic forms of primitive trade, the "silent" trade [cf. ch. Vlll-.U-.z], 
dramatically represents the contrast between the market community and 
the fraternal community. The silent trade is a form of exchange which 
avoids all face-toface contact and in which the supply takes the form 
of a deposit of the commodity at a' customary place; the counteroffer 
takes the same form, and dickering is effected through the increase in 
the number of objects being offered from both sides, until one party 
either withdraws dissatisfied or, satisfied, takes the goods left by the 
other party and departs* 

It is normally assumed by both partners to an exchange that each 
wiH be interested in the future continuation of the exchange relation- 
ship, be it with this particular partner or with some Other, and that he 
.will adhere to his promises for this reason and avoid at least striking 
infringements of the rules of good faith and fair dealing. It is only this 
assumption which guarantees the law-abidingness of the exchange part- 
ners. Insofar as that interest exists,' "honesty is the best policy." This 
proposition, however, is by no means universally applicable, and its 
empirical validity is irregular; naturally, it is highest in the case of 
rational enterprises with a stable clientele. For, on the basis of such a 
stable relationship, Which generates the. possibility of mutual personal 
appraisal with regard to market ethics, trading may free itself most 
successfully from illimited dickering and return, in the interest of the 
parties, to a relative limitation of fluctuation in prices and exploitation 
of momentary interest constellations. The consequences, though they 
are important for price formation, are not relevant here in detail. The 



638 THE MARKET: ITS IMPERSONALITY AND ETHIC [ Ck. Vll 

fixed price, without preference for any particular buyer, and strict busi- 
ness honesty are highly peculiar features of the regulated local neigh- 
borhood markets of the medieval Occident, in contrast to the Near and 
Far East. They are, moreover, a condition as well as a product of that 
particular stage of capitalistic economy which is known as Early Capital- 
ism. They are absent where this stage np longer exists. Nor are they 
practiced by those status and other groups which "are not engaged in 
exchange except occasionally and passively rather than regularly and 
actively. The maxim of caveat emytor obtains, as experience shows, 
mostly in -transactions involving feudal strata or, as every cavalry officer 
knows, in horse trading among comrades. The specific ethics of the 
market place is alien to them. Once and for all they conceive of com- 
merce, as does any rural community of neighbors, as an activity in 
which the sole question is: who will cheat whom. 

The freedom of the market is typically limited by sacred taboos or 
through monopolistic consociations of status groups which render ex- 
change with outsiders impossible. Directed against these limitations we 
find the continuous onslaught of the market community, whose very 
existence constitutes a temptation to share in the opportunities for gain. 
The process of appropriation in a monopolistic group may advance to 
the point at which it becomes closed toward outsiders, i.e., the land, or 
the right to share in the commons, may Have become vested definitively 
and hereditarily. As the money economy expands and, with it, both the 
growing differentiation of needs capable of being satisfied by indirect 
barter, and the independence from land ownership, such a situation of 
fixed, hereditary appropriation normally creates a steadily increasing 
interest of individual parties in the possibility of using their vested 
property rights for exchange with the highest bidder, even though he 
be an outsider. TTiis development is quite analogous to that which causes 
the co-heirs of an industrial enterprise in the long run to establish a 
corporation so as to be able to sell their shares, more freely. In turn, an 
emerging capitalistic economy, the stronger it becomes, the greater will 
be its efforts to obtain the means of production and labor services in the 
market without limitations by sacred or status bonds, and to emancipate 
the opportunities to sell its products from the restrictions imposed by the 
sales monopolies of status groups. Capitalistic interests thus favor the 
continuous extension of the free market, but only up to the point at 
which some of them succeed, through the purchase of privileges from 
the political authority or simply through the power of capital, in obtain- 
ing for themselves a monopoly for the sale of their products or the 
acquisition of their means of production, and in thus closing the market 
on their own part. 

The breakup of the monopolies of status groups is thus the typical 



A Fragment. 639 

immediate sequence to the full appropriation of all the material means 
of production. It occurs where those having a stake in the capitalistic 
system are in a position to influence, for their own advantage, those 
communities by which the ownership of goods and the mode of their 
use are regulated; or where, within a monopolistic status group, the 
upper hand is gained by those who are interested in the use of their 
vested property interests in the market. Another consequence is that the 
scope of those rights which are guaranteed as acquired or acquirable by 
the coercive apparatus of the property-regulating community becomes 
limited to rights in material goods and to contractual claims, including 
claims to contractual labor. All other appropriations, especially those of 
customers or those of monopolies by status groups, are destroyed. This 
state of affairs, which we call free competition, lasts until it is replaced 
by new, this time capitalistic, monopolies which are acquired in the 
market through the power of property. These capitalistic monopolies 
differ from monopolies of status groups 3 by their purely economic and 
.rational character. By restricting either the scope of possible sales or the 
permissible terms, the monopolies of status groups excluded from their 
field of action the mechanism of the market with its dickering and rational 
calculation. Those monopolies! on the other hand, which are based solely 
upon the power of property, rest, on the contrary, upon an entirely ra- 
tionally calculated mastery of market conditions which may, however, 
remain formally as free as ever. The sacred, status, and merely traditional 
bonds, which have gradually come to be eliminated, constituted restric- 
tions on the formation of rational market prices; the purely economically 
conditioned monopolies are, on the other hand, their ultimate conse- 
quence. The beneficiary of a monopoly by a status group restricts, and 
maintains his power against, the market, while the rational-economic 
monopolist rules through the market. We shall designate those interest 
groups which are enabled by formal market freedom to achieve power, as 
market-interest groups. 

A particular market may be subject to a body of norms autonomously 
agreed upon by the participants or imposed by any one of a great variety 
of different gr6ups,' especially political or religious organizations. Such 
norms may involve limitations of market freedom, restrictions of dicker- 
ing or of competition, or they may establish guaranties for the observ- 
ance of market legality, especially the modes or means of payment or, 
in periods of interlocal insecurity, the norms may be aimed at guarantee- 
ing the market peace. Since the market was originally a consociation of 
persons who are not members of the same group and who are, therefore, 
"enemies," the guaranty of peace, like that of restrictions of permissible 
modes of warfare, was ordinarily left to divine powers.* Very often 
the peace of the market was placed under the protection of a temple; 



/ 

640 the market: its impersonality and ethic [ Ch. VII 

later on it tended to be made, into a source of revenue for the chief or 
prince. However, while exchange is the specifically peaceful form of 
acquiring economic; power, it can, obviously, be associated with the 
use of force. The seafarer of Antiquity and the Middle Ages was pleased 
to take without pay whatever he could acquire by force and had recourse 
to peaceful dickering only where he was confronted with a power equal 
to his own or where he regarded it as shrewd to do so for the sake of 
future exchange opportunities which might be endangered otherwise. 
But the intensive expansion of. exchange relations has always gone to- 
gether with a process of relative pacification. All of. the "public peace" 
arrangements of the Middle Ages were meant to serve the interests of 
exchange. 5 The appropriation; of goods through free, purely economi- 
cally rational exchange, as Oppenheimer has said time and again, is the 
conceptual, opposite of appropriation of goods by coercion of any kind, 
but especially physical coercion, the regulated exercise of which is the 
very constitutive element of the political community. 



NOTES 

1. The title is by the present editor; all notes are by Rheinstein. (R) 

2. Die Judeh und das Wirtschaftslbben (1911, Epstein tr. 1913, 1951, 
s,t. The Jews and Modern Capitalism); Dbr Bourgeois (1913); Handles 
undHelden (1915); Der .moderne Kapitalismu's, vol. Ill, Part I, p. 6; .see 
also Deutscheh Sozialismus (1934) (Geiser tr. s.t. A New Social Philoso- 
phy, 1937). Revulsion against the so-called "de-bumanteation" of relationships 
has constituted an important element in the German neo-romanticism of such 1 
groups and movements as the circle around the poet Stefan George, the youth 
movement, the Christian Socialists, etc. Through the tendency to ascribe this cap- 
ita } istic spirit to the Jews and to Hold them responsible for its rise and spread, 
these sentiments became highly influential in the growth of organized anti-Semi- 
tism and, especially, National-Socialism. 

3. Such as the monopoly of guild members to sell certain goods within (he 
city, or the monopoly ofjhe lord of a manor to grind the grain of all peasants of 
the district, or the monopoly of the members of the bar to give legal advice, a mo- 
nopoly which was abolished in most Continental countres in the nineteenth cen- 
tury.-' - '■■■■■ 

4. On market peace, e£. S. Rietschbl, Makkt uhd SI'jujt (1897); H* 
PraENNE, Villes, marches et jkahchands a u mo yen Ace (1898). 

5. On such medieval peace arrangements (Lan&friecl&n), which were aimed 
at the elimination of feuds and private wars and which occurred either as non- 
aggressiOn pacts concluded, often with ecclesiastical or royal cooperation, between 
barons, cities, and other potentates, or were sought to be imposed on his unruly 
subjects by the king, see Quidde, Histoire de la faix pxtblique en Alhmagne au 
moyen dge (1929), 28 Recubil des cours de l'Academie de droit interna- 
tional 449. S8709/2 (& 1 — 9/16—1) 

gft»*fc£ SB 1 48 

(!fS) BG000970 



CHAPTE 



. VIII 



ECONOMY AND LAW 
(SOCIOLOGY OF LAW) 1 



i 



Fields of Substantive Law 



i. Public Law and Private Law 

One of the most important distinctions in modern legal theory and 
practice is that berwees "public" ind *^rt*te" law. 1 But the exact 
criteria of this distinction «M auwowpdedly controversy. 

(a) SociaaojpatUjF, oqr aright define puoHc law as the total body of 
those norms which regulate state-oriented actfcm, that is, those activities 
which serve the maintenance, development, and the direct pursuit of 
the objectives, of the state QStmtsatutmk'), objectives which must them- 
selves be valid by virtue of enactment oc consensus. Correspondingly, 
ptfcMehw would he defined as the toU&gfof those norms which, while 
,imung from the state, regulate conduct ether than state-oriented con- 
duct. *Hiis kind of definition is rather non-technical and, therefore, 
difficult to apply. But it seems nevertheless to constitute the basis of 
almost all other attempted distinctions of the two great branches of the 
law. 

(b) Hie distinction just stated is often intertwined with another 
one. Public law might be regarded as identical with the total body of the 

I641I 



6 4 * ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. VIII 

"reglementations," i.e., those norms which only embody instructions to 
state officials as regards their duties, but, in contradistinction to what 
may be called "claim norms," do not establish any "rights" of indi- 
viduals. This distinction, however, must be correctly understood. For the 
norms of public law can establish rights of individuals, for instance, the 
right to vote as established in a law on presidential elections. Such a law 
nonetheless falls within the domain of public law. 

But today such a "public right" belonging to an individual is not 
regarded as a vested right in the same sense as a property right, which 
the legislator himself views as in principle inviolable. From a legal point 
of view, the public rights of individuals are but those spheres of activity 
in which he acts as an agent of the state for specifically delimited pur- 
poses. Thus, in spite of the fact that they formally appear as rights, 
they may still be regarded as but another aspect, a "reflex," of a "regie- 
mentation" rather than as the result of a "claim-norm." Furthermore, 
by no means all claims which exist in a legal system and which belong 
to private-law, as previously defined, are vested rights. 1 

Indeed, even those incidents of ownership which are fully recog- 
nized at any given time, may be looked upon as being but reflexes of 
the legal order. As a matter of fact, the question as to whether a given 
right is "vested" means frequently no more than whether or not it is 
liable to expropriation without compensation. Thus one might assert 
that all public law is in the legal sense no more than a body of regie- 
mentations, without asserting that reglementations belong exclusively to 
the sphere of public law. But not even such a definition would be cor- 
rect. For in some legal systems the governmental power itself may be 
regarded ri a patrimonial right belonging to the monarch, and in some 
others certain constitutional rights belonging to the citizen may be re- 
garded as inalienable and, therefore, as vested rights. 

(c) Finally, private law might be contrasted with public law as the 
law of coordination as distinguished' from that of subordination. Private 
law would then be concerned with those legal affairs in which several 
parties are confronting each other so that the law treats them as being 
coordinated and that their legal spheres are to be "properly" defined 
against each other by the legislature, the judiciary or, by means of legal 
transactions, by the parries themselves. In the domain of public law, 
however, a holder of preeminent power, having authoritative power of 
command, is confronting those persons who are his subjects by virtue 
of the legal meaning of the norms. Yet not every functionary of the state 
has authority to command and not all those activities of the organs of 
the state which are regulated by public law are commands. Further- 
more, the regulation of the relations among the various public organs, 



i ] Fields of Substantive Law 643 

i.e., among power holders of equal status, belongs to the proper sphere 
of "public law." Besides, one must include within the field of public 
law not only the relations between the organs of the state and those 
.subject to them but also those activities of the subjects by which they 
create and control those organs. Once this is admitted, the definition 
here discussed leads us back to the one previously presented, i.e., the 
definition that does not regard as falling within the field of public law 
every regulation of the power to exercise authority or of the relations 
between those who exercise authority and those who are subject to it. 
For example, an employer's exercise of power would obviously be ex- 
cluded because it originates in a contract between parties of equal legal 
status. Again, the authority of the head of a family will be regarded as 
falling within the sphere of private law — for no other reason than the 
fact that public law is only concerned with those activities within a 
given legal system which are directed toward the maintenance of the 
state as well as toward the realization of those objectives of the state 
which are its prime cancem. Of course, the question as to what these 
particular objectives should be is answered in varying ways even today, 
Lasdy, certain public activities may be intentionally regulated in such a 
way that, with respect to the same subject matter, rights vested in indi- 
viduals and powers conferred upon state agencies coexist and compete* 
with each other. 

As we have seen, the delimitation of the spheres of public and 
private law is even today not entirely free from difficulty. It was even 
less clear in the past, and there was once a situation in which such a 
distinction was not made at all. Such was the case when all law, all 
jurisdictions, and particularly all powers of exercising authority were 
personal privileges, such as, especially, the "prerogatives" of the head of 
the state. In that case the authority to judge, or to call a peron into 
military service, or to require obedience in some other respect was 
vested right in exactly the same way as the authority to use a piece of 
land; and just like the latter, it could constitute the subject matter of a 
conveyance or of inheritance. Under this condition of "patrimonialism," 
political authority was not . organized as a compulsory association 
(Anstali), but was represented by the concrete consociation (Vergesell- 
schaftung) and compromises of individual power-holders, or persons- 
claiming powers, and by the concrete arrangements made between 
them. It was a kind of political authority which was not essentially dif- 
ferent from that of the head of a household, or a landlord, or a master 
of serfs. Such a state of affairs has never existed as a complete system, 
but, in so far as it did exist, everything which we legally characterize 
as falling within the sphere of "public law" constituted the subject mat- 



'■ 644 ECONOMY AND LAW (SOCIOLOGY OF LAW) [Ck. Vlll 

tec of the private rights of individual power-holders and was in this 
respect in no way different from a "right" in private law. 



2. Right-Granting Law and Reglementation 

-:- A legal system may also assume a character exactly opposite to the 
one just described, that is to say, "private law," of the kind defined 
above, may be completely absent in* wide areas of social life which 
would today fall within its sphere. This occurs where there exist no 
norms having the character of right-granting laws. In such a situation, 
the entire body of norms consists exclusively of "reglementations." In other 
words, all private interests enjoy protection, not as guaranteed rights, 
but oidy as the obverse aspect of the effectiveness of these regulations. 
This situation, too, has never prevailed anywhere in its pure form, but 
in so far as it obtains, all forms of law become absorbed within "ad- 
ministration" and become part and parcel of "government."* 



3. "Government" and "Administration" 

"Adttrihwtration" is not a concept of public law exclusively. For we 
must recognize the existence of private administration, as in the case of 
a household or a business enterprise, alongside the kind of administra- 
tion carried on either by the state or by other public institutions (i.e.,' 
either institutional organs of the state itself, or heteronomous institutions 
deriving their powers from the state). 

lit in widest sense, the expression "public administration" includes 
not only legislation and adjudication but also those other residuary ac- 
tivities which here we want to call "government." "Government" can be 
bound by legal norms and limited by vested rights. In these respects it 
resembles legislation and adjudication. But there are two aspects to be 
distinguished. First, and in a positive sense, government must b*re a 
legitimate basis for its own jurisdiction; a modem government exercises 
its functions as a "legitimate" jurisdiction, which means legally that it 
Is regarded as resting on authorization by the constitutional norms of 
the state. Secondly, and in a negative sense, the limitations on the power 
of the state by law and vested rights create those restraints upon its 
freedom of action to which it must adjust itself. One specific character- 
istic of government, however, resides in the fact that it aims not only 
at acknowledging and enforcing the law simply because the law exists 
and constitutes the basis of vested rights, but also in that ir pursues 



( ] Fields of Substantive Law 645 

other concrete objectives of a political, ethical, utilitarian, or some other 
kind. To the government, the individual and his interests are in the 
legal sense objects rather than bearers of rights. 

In the modem state, it is true, there exists a trend formally to assimi- 
late adjudication to "administration" (in the sense of "government"). 
A judge is frequendy instructed, either by the positive law or by legal 
theory, to render his decision on the basis of ^ethics, equity, or expedi- 
ency. In the administrative field, on the other hand, the modern state 
has provided for the citizen, who, on principle, is only its object, a 
possibility of protecting his interests by granting remedies which are 
formally identical with those existing in the field of the administration 
of justice, namely, the right to resort to administrative tribunals. 5 But 
none of these guaranties can eliminate the basic contradiction between 
adjudication and "government" Law creation, too, is approximated by 
government wherever government promulgates general rules dealing 
with typical situations ratherythan merely intervening in specific cases 
— and, to a certain; extent, even when it does not feel bound by them. 
v After all, observance by the government of the rules is regarded as the 
normal thing and a tctrd disregard of them would ordinarily be dis- 
approved as "arbitrary" conduct. 

The primeval form of "administration" is represented by patriarchal 
power, i.e., the rule of the household. In its primitive form, the authority 
of the master of the household is unlimited. Those subordinated to his 
power have no rights as against him, and norms regulating his behavior 
toward them exist only as indirect effects of heteronomous religious 
checks on his conduct. Originally, we are confronted with the coexist- 
ence of the theoretically unrestrained administrative power of the 
master and arbitration proceedings which originate in arrangements made 
between kinship groups and relate to the proof and composition of al- 
leged injury. Only in the latter are "claims," i,e., rights, at issue and are 
verdicts rendered; and only in "relations between kinship groups do we 
find established formalities, limitations as to time, rules of evidence, 
etc., that is, the beginnings of "judicial" procedure. None of these exist 
within the sphere of patriarchal power, which represents the primitive 
form of ^government," in the same way as the inter-group arrangements 
represent, the primitive form of adjudication. The two are distinct from 
one another also with regard to the spheres in which they operate. Even 
such a relatively late phenomenon as the ancient Roman administration 
of justice stopped at the threshold of the household. 8 We shall later see 
how domestic authority came to he diffused beyond its original sphere 
and was carried over into certain forms of political power, viz., patri- 
monial monarchy, thereby also entering into the administration of 
justice. 



646 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

Whenever this happened, the distinctions between legislation, 
adjudication, and government were broken down. The consequences 
have been one or the other of the following: 

In the first place, adjudication assumed the character of "administra- 
tion," both formally and materially, and was operated simply through 
decrees or commands issued by the lord to his subjects according to 
considerations of mere expediency or equity, and without fixed forms 
and at arbitrary times. This situation, however, never obtained with full 
force except in extreme cases; but approximations to it have occurred 
in "inquisitorial" procedures as well as in all those systems of proce- 
dure in which the conduct of trial and proof is dominated by the judge. 7 
The other, rather different, possible consequence of the diffusion of the 
pattern of domestic authority into extra-household spheres consists in 
"administration" assuming the form of judicial procedure, as happened 
to a large extent, and in some sense still happens today, to be the case 
in England. Parliament deals with "private bills," i.e., with such purely 
administrative acts as licensing, etc., in exactly the same way that it 
treats public bills. The failure to distinguish between the two types of 
legislation has been a genera! feature of older parliamentary procedure; 
for the English Parliament it was, indeed, a decisive factor in the estab- 
lishment of its position. 8 Parliament arose originally as a judicial body, 
and, in France, it became such to the exclusion of all other activities. 
This confusion between legislative and judicial functions was condi- 
tioned by political circumstances. In Germany, too, the budget, which 
is a purely administrative matter,® is treated as a legislative act, in ad- 
herence to the English pattern as well as for political reasons. 

The distinction between "administration" and "private law" becomes 
fluid where the official actions of the organs of official bodies assume the 
same form as agreements between individuals. This is the case when 
officials in the course of their official duties make contractual arrange 
ments for exchange of goods or services either with members of the 
organization or with other individuals. Frequendy such relationships are 
withctawn from the norms of private law, are arranged in some way 
different from the general legal norms as to substance or as to the mode 
of enforcement, and are thus declared to belong to the sphere of "ad- 
ministration." 10 As long as claims treated in this way are guaranteed by 
some possibility of enforcement, they do not cease to be "rights," and 
the distinction is no more than a technical one. However, even as such, 
the distinction may be of considerable practical significance. But the 
total structure of (ancient) Roman "private law" is completely misunder- 
stood if one regards as belonging to its sphere only those claims which 
were enforced in a regular jury trial and on the basis of a lex, and ex- 
cludes from it all those rights which were enforced solely through the 



i ] Fields of Substantive Law 647 

magistrate's cognitio and which, at times, were of preponderant eco- 
nomic significance." 



4. Criminal Law and Private Law 

The authority of magi and prophets and, under certain conditions, 
the powers of the priesthood, can, to the extent that they have their 
source in concrete revelation, be as unrestrained by rights and norms 
as the primitive power of the master of a household. Belief in magic is 
also one of the original sources of criminal law, as distinguished from 
"private law." 11 The modern view of criminal justice, broadly, is that 
public concern with morality or expediency decrees expiation for the 
violation of a norm; this concern finds expression in the infliction of 
punishment upon the evil doer by agents of the state, the evil doer, 
however, enjoying the protection of a regular procedure. The redress 
of the violation of private rights, on the other hand, is left to the injured 
, party, and action by the latter leads not to punishment, but to the 
restoration of a situation which the law has guaranteed. But even today 
this distinction is not always applied in clear-cut fashion. It was cer- 
tainly unknown in primitive administration of justice. Even in the late 
stages of otherwise complex legal developments, every action was simply 
looked upon as sounding in tort and the notions of "contract" and 
obligatio were completely unknown. 13 Indeed, Chinese law still mani- 
fests some traces of this situation,'* winch in the history of civilization 
has been of such great importance in legal development. Every infringe- 
ment by an outsider upon a member of a kinship group or his property 
calls for either revenge or composition, the pursuit of which is left to 
the injured party, supported by his kin. 

The procedure for obtri-.ing composition either shows no trace at all 
or at most the mere beginnings of the distinction between felony that 
calls for vengeance, and tort that merely requires restitution. Further- 
more, the absence of a distinction between actions for what we call 
"civil" redress and criminal prosecution aiming at punishment, and the 
subsumption of both under the single cus'jpxy of atonement for wrong 
imparted, is connected with two peculiarities of primitive law and 
procedure. There is a complete unconcorn with a notion of guilt, 
and, consequently, with the idea of degrees of guilt reflecting inner 
motivations and psychological attitudes. He who thirsts for vengeance 
is not interested in motives; he is concerned only with the objective 
happening of the event by which his desire for vengeance has been 
aroused. His anger expresses itself equally against inanimate objects, 
by which he has been unexpectedly hurt, against animals by which he 



648 ' ECONOMY AND LAW (SOCIOLOGY OF LAw) [ CJt. VIII 

has been unexpectedly injured, and against human beings who have 
harmed him" unknowingly, negligently, or intentionally. This, for ex- 
ample, was the original sense of the Roman actio de fau^efie, i.e., that 
an animal had behaved in a way other than it should have, as well as 
of the noxae datio, i.e., the surrender of the animal for vengeance. 18 
Every wrong is, therefore, a "tort" that requires expiation, and no tort 
is more than a wrong that requires expiation. 

The primitive indistinctive^ess of crime and tort also found expres- 
sion in. the ways in which "judgments" were "enforced." Procedure 
did not vary, whether the suit was about a piece of land or about 
homicide. But even when that stage was reached whsn fairijr well- 
established' compositions began to be imposed, there was still a lack of 
"official" machinery for the enforcement of these judgments. It was 
rather believed that a judgment which had been arrived at by the inter- 
pretajion of oracles or ether magical devices, or the invocation of magical 
or divine, powers, carried with it sufficient magical authority to enforce 
itself, since disobedience constituted a kind of serious blasphemy. 
Where, as a resuh of certain developments connected with military or- 
ganization (to be dealt with shortly), 16 the trial took place before an 
assembly of the whole community, with ail members participating in the 
making of the judgment (as was the case, for instance, in early Ger- 
manic recorded history), it might be expected that, as a consequence of 
such cooperation in the rendering of a judgment, none of its members 
would obstruct its enforcement, provided it had not been publicly chal- 
lenged in the assembly. Nevertheless, the victorious litigant could not 
depend on anything more than mere passivity on the part of those out- ' 

« side of his own kinship group. It was entirely incumbent upon him, by 
way of self-help, to enforce the judgment with the assistance of his kin- 
folk unless, of course, the unsuccessful party obeyed the judgment. Both 
in Home and among the Germanic tribes, this self-help usually consisted 
in the capture of the condemned to remain as hostage for the payment 
. of the composition, the amount of which was either fixed by th* judg- 
•ment itself or was to be agreed on by the litigants themselves. Ncr did 
this selfrhelp vary for different types of litigation: self-help was resorted 

• to whether the suit had been about a piece of land or whether it had 
been about homicide. An official machinery for die enforcement of judg- 
ments did not become available until princes or magistrates saw the 
necessity, for political reasons and in the iofierffit of public order, to use 
their imperiwn against persons interfetfag with the enforcement of 8 
judgment and to threaten such persojjs with legal sanctions, especially 
oudawry." All this, however, took place without^any distinction between 
civil and criminal proceedings. In those lqpl systems in which under 
the influence of certain legal honoratfores 1 * there remained some con- 



i } Fields of Substantive Law 649 

tinuity with the ancient forms of expiatory justice, and in which there 
was a lesser degree of "bureaucratization," i.e., those of Rome and 
England, this original state of complete nondifferentiation continued 
to show itself in the rejection of specific performance for the restoration 
of concrete objects. Even in an action concerning title to land, the 
judgment was ordinarily rendered in terms of money." This was not 
due at all to a highly developed market economy which would evaluate 
everything in terms of money. Rather was it a consequence of the 
primitive principle that every wrong, including the wrongful possession 
of property, demanded satisfaction and nothing but satisfaction, and that 
this liability attached to the culprit's own person. On the Continent, 
specific performance emerged relatively early in the early Middle Ages, 
owing to the rapidly growing power of the imperiwn of the princes. 10 
English procedure, on the ether hand, even down to recent times, had 
to resort to peculiar fictions in order to introduce the possibility of 
specific performance in actions concerning real property." In Rome the 
persistence of condemnation to money damages instead of specific per- 
formance was the result of the general tendency to keep official. activities 
to a minimum, which, in torn, was due to the system pf* rule by 
honoratiores. 



5. Tort and Crime 

Substantive law too vtjas deeply influenced by the notion that litiga- 
tion implied a wrong committed by the accused and not just the exist- 
ence of a state of affairs objectively regarded as unlawful. Originally, 
all "obligations" were, without exception, obligations ex delicto; hence, 
contractual obligations were, as we shall see, 21 at first conceived as aris- 
ing out of tort. In England, as late as the Middle Ages, a contractual 
action was formally connected with a fictitious tort." The abatement of 
the debts upon the deith at the debtor was as much because of this 
concept as of the absence^ any notion of a "law of succession ."** The 
heirs' liability for contracrtm debts was, as we shall see," developed with 
varying results by means t&the joint liability for wrongful acts, first of 
the kindred and later of the fellow members of the household or of 
the participants in a power relation as either* subordinates or superiors. 
Even the principle of protection of bona fide purchasers, a principle" 
allegedly indispensable far modem commerce, 1 * has its origin in the 
ancient idea that no lawsuit could be anything but one ex delicto against 
a thief or his accessory. Only later, in consequence of the development 
of actions ex contractu arid the distinction between "real" and "personal" 
actions, did the old rule undergo divergent developments in different 



650 ECONOMY AND LAW (SOCIOLOGY OP LAW) [ Ch. Vlll 

legal systems. Thus its place came to be occupied by the owners action 
against every possessor (ret vindicatto)" in ancient Roman 18 and ~in 
English law** as well as in Hindu law,*" which, in contrast to Chinese 
law, was relatively highly rationalized. Still later the protection of the 
bona fide purchaser was revived again in the case of purchasers in 
market overt in English* 1 and Hindu law 11 on the rational grounds of 
providing security for business dealings. The absence of general protec- 
tion of bona fide purchasers in English and Roman law, as contrasted 
with German law, is yet another instance of the adaptability of com- 
mercial interest to the most diverse systems of substantive law. It illus- 
trates, moreover, the high degree of independence which characterizes 
the development of law. Perhaps another example of this delictual 
conception of legal obligation can be found in the expression malo 
ord}ne tenes** that occurs in the Frankish action for the restitution of 
land, although the correct interpretation of these words is a debatable 
-matter. 

It is quite possible, however, that entirely different ideas may have 
been at work in such legal institutions as the bilateral Roman vindicatfa, 
the Hellenic diadtkasia,** or the Germanic actions for land. 3 * In all these 
cases one may conclude that they were originally regarded as acHones 
de recursu, i.e., actions tending to ascertain a person's full membership 
in a certain community as based upon his tide to a certain piece of 
land. 38 After all, fundus involves "membership," and KXripot the "mem- 
ber's share." Again, originally, the regular ex officio prosecution for a 
delict was as nonexistent as the official enforcement of a judgment. 
Within the household, chastisement derived from the patriarch's au- 
thority over his household. Disputes among members of a kinship group 
were setded by the elders. However, in all these situations, the decision 
whether punishment was to be meted out or not, and, if it was, in what 
form and to what degree, was an entirely discretionary matter, for 
"criminal law" was nonexistent. A primitive form of criminal law did 
develop outside the boundaries of the household, particularly in situa- 
tions in which the conduct of an individual endangered all the members 
of his neighborhood, kinship, or political association. Such situations 
could be brought about by two types of misconduct: religious blasphemy 
or military disobedience. The whole group was endangered when a 
magical norm, e.g., a taboo, was infringed and, in consequence, the 
wrath of magical forces, spirits or deities, threatened to descend with 
evil consequences not merely upon the blasphemer (or criminal) him- 
self but upon the whole community which suffered him to exist within 
their midst. Stimulated by magi or priests, the members of the com- 
munity would oudaw the culprit or lynch him, as for instance through 
stoning among the Jews. Or else they might conduct an expiatory reli- 



i ] __ Fields of Substantive Law 651 

gious triaL Blasphemous acts were thus the main source of what may be 
called "intra-group punishment" as distinguished from "inter-group 
vengeance." The second source for such punishment was political or, 
originally, military. Anyone endangering by treachery or cowardice the 
security of the collective fighting forces or, after disciplined combat had 
come into being, by disobedience, had to reckon with the punitive re- 
actions of the war lord or the army. 37 And although, of course, a person's 
military misbehavior had first to be established as a fact, the procedure 
for the finding of this fact was very summary indeed. 



6. Imperium 

From the predominance of vengeance to the formation of a firmly 
fijeed and formalized criminal procedure a direct line of development 
can' be traced; the reasons will become clear below. The punitive re- 

, actions of the master of a domestic group, or of the religious or military 
authorities, were at first free from procedural formality or rule. It is true 
that the punitive powers of the master of a household became to some 
extent restricted by the intervention of the elders of bis own kinship 
group or the religious or military authorities in charge of certain intra- 
group relations, hut by and large the master remained a law unto him- 
self within his sphere and he was bound by legal rules only in very 
special cases. 

A slow, and in its result varying, subjection to rules occurred, how- 
ever, as to the primitive nondomestic powers, i.e., the Iiouseh oldlike 
power exercised by patrimonial monarchy in relations quite different 
from those of a household, or, in other words, as to those powers which 
are contained in the concept of imperium. We shall not discuss here the 
origin of the process by which definite rules became established. Nor 
shall we discuss at present, whether the holder of imperium imposed 
them on himself in his own interest, or whether he had to do so in 
view of the factual limits within which he would find obedience, or 
whether they were imposed upon him by other powers. All these ques- 
tions will he dealt with in our analysis of domination. Imperium has 
always included, however — and in the past to an even greater extent 

" than today — the power to punish and, in particular, the power to crush 
disobedience not merely through the direct application of force hut 
through the threat of detriment as well. The power to punish could be 
directed against certain subordinate "officials" who exercised imperium 
or against those who were subjected to its power. In the former case, we 
speak of disciplinary power, and in the latter, of the power to inflict 
punishment. In this context, "public law" is direcdy connected with 



652. ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

criminal law; at any rate, public law, criminal law, criminal procedure 
and sacred law do not begin to be systematically treated unless there 
are at least- some rules which are recognized as factually binding. 



7. Limitation of Power and Separation of Powers 

Such norms as those just mentioned always act as restraints upon the 
imperium within the sphere in which they obtain. On the other hand, 
not every restraint possesses "iiO;ii.aLive" character. Now there are two 
Hnds of restraints, viz., ( 1 ) limitations of power, and (2) separation of 
powers. Limitation of power exists where, due to sacred tradition or 
enactment, a particular imyerium is restrained by the rights of its sub- 
jects. The power-holder may issue only comms^is of a certain type, or 
he may issue all sorts of commands excepE in certain cases or subject to 
certain conditions. Whether these limitations possess "legal," "conven- 
tional," br merely "customary" status, is to he answered in each case by 
ascertaining whether the maintenance of the limitations is guaranteed 
by a coercive organization (whose coercive means may be more or less 
effective) or whether they are maintained only by conventional dis- 
approval or whether in the last analysis there is no agreed limitation at 
all. The other kind of restraint ("separation of powers") exists where 
one imperium conflicts with another imperiutn, either equal or in cer- 
tain respects superior to it, but the legitimate validity of which is fully 
recognized as limiting the extent of its authority. Both limitation of 
power and separation of powers may exist together, and it is this co- 
existence which so distinctively characterizes the modern state with its 
distribution of competence among its various organs. Indeed, this 
modern state is essentially characterized by the following criteria: It is a 
consociation (anstaltsmiissige Vergesellschaftung) of bearers of certain 
defined imperia; these bearers are selected according to established rules; 
their imferia are delimitated from each other by general rules of separa- 
tion of powers; and internally each of them finds the legitimacy of its 
power of command defined by set rules of limitation of power. 

Both separation of powers and limitation of power may assume struc- 
tural forms quite different from those in which they appear in the 
modem state. Especially is this true of the separation of powers. Its 
structure was different in the ancient Roman law of intercession of 
far majorve potestas** as well as in the patrimonial, the estate-type, the 
feudal and the political organization. Nonetheless, there is truth in 
Montesquieu's assertion that it was only through the separation of 
powers that the very concept of .public law was made possible.*" But 
this proposition must he understood correctly in the sense that the 



i ] Fields of Substantive Law * 653 

separation of powers need not necessarily be of the sort that he thought 
he had found in England. On the other hand, not every kind of separa- 
tion of powers leads to the idea of a public law, but only that type 
which is peculiar to the idea of the state as a rationally organized insti- 
tution. The jeason why a systematic theory of public law was developed 
only in the Occident is simply that only in these countries had the 
political organization assumed the form of an institution with rationally 
dovetailed jurisdictions and a separation of powers. As |ar as Antiquity 
is concerned, it had a systematic theory of the state precisely to the 
extent that there existed a rational separation of powers?' die doctrine of 
the impetia of the several Roman magistrates was elaborated in a system- 
atic manner.* Everything else was essentially political philosophy rathei 
than constitutional law. In the Middle Ages, separation of powers ap- 
peared only in the competition among privileges, feudal claims, and 
other rights; consequendy, there was no separate treatment of constitu- 
tional law. Whatever there was of it was contained in feudal and 
manorial law. The decisive legal conceptions of modern public law owe 
their origin to a peculiar combination of several factors. As a matter of 
historical fact, they Owe it to the consociation of privileged persons in 
public corporations of the Standestaat, which increasingly combined 
both" separation and limitation of powers with institutional structure. 
As a matter of legal theory, they owe it to the- Roman concept of the 
corporation, the ideas of natural law, and, finally, French legal theory. 
We shall deal with this development of modern public law in our 
analysis of domination. In the following sections we shall deal mainly 
with lawmaking and lawfinding, but only in connection with those 
economically relevant spheres which today are left to private law and 
civil procedure. 



8. Substantive Law and Procedure 
;.-' .* 

According to"our contemporary modes of legal thought, the activities 
of political organizations fall, as regards "law," into two categories, viz., 
lawmaking and lawfinding, the latter involving "execution" as a tech- 
nical matter. Today we understand by lawmaking the establishment of 
general norms which in the lawyers' thought assume the character of 
rational rules of law. Lawfinding, as we understand it, is the "applica- 
tion" of such established norms and the legal propositions deduced 
therefrom by legal thinking, to concrete "facts" which are "subsumed" 
under these norms. However, this mode of thought has by no means 
been common to all periods of history. The distinction between lawmak- 
ing as creation of general norms and lawfinding as application of these 



654 ECONOMY AND LAW (SOCIOLOGY OF LAwY ' ''"£ Ch. Vlll 

norms to particular cases does not exist where adjudication is "adminis- 
tration" in the sense of free decision from case to case. In such a situa- 
tion, it is not only the legal norm that is lacking, but also the idea of a 
party's right to have it applied to his case. The same is true where law 
appears as "privilege" and where, accordingly, the idea of an "applica- 
tion" of legal norms as the foundation of a legal claim could not have 
arisen. Again, the distinction between lawmaking and lawfinding is 
absent wherever lawfinding is not conceived as an application of general 
norms to concrete cases. In other words, the distinction is absent in all 
cases of Irrational adjudication, which has been not only the primitive 
form of adjudication but which, as we shall see [in sec. Hi, below], 
has also prevailed, either in its pure or in some modified form, through- 
out all history in all parts of the world except those in which Roman 
law came to obtain. Similarly, the distinction between rules of law to 
be applied in the process of lawfinding, and rules regarding that process 
itself, has not always been drawn as clearly as that which is drawn today 
between substantive and procedural law. Where legal procedure rested 
upon the imperium's influence upon the pleadings, as, for instance, in 
early Roman law, or, in a technically quite different way, in English 
law, it is easy to hold the notion that substantive legal claims are iden- 
tical with the right to make use of procedural forms of action such as 
the Roman actio* 1 or the English writ." In older Roman legal doctrine 
the line of demarcation between procedural and private law was thus 
not drawn in the way it is drawn by us. For quite different reasons, a 
similar mixture of problems which we would respectively call procedural 
and substantive was apt to arise where adjudication was based on ir- 
rational modes of proof, such as the oath or wager of law in their 
original magical significance, or upon ordeals. The right or duty to resort, 
or submit, to such significant acts of magic was then a component of a 
substantive legal claim or even identical with it. Nevertheless, the dis- 
tinction between rules of procedural and of substantive law was inherent 
in the distinction made in the Middle Ages between Hichtsteige, on the 
one hand, and "mirrors of law,"* 3 on the other. This distinction was no 
less clear than that which was made in the Romans' early efforts at 
systematization," although it was made in a somewhat different way. 



p. The Categories of Legal Thought 

As we have already pointed out, the mode in which the current basic 
conceptions of the various fields of law have been differentiated from 
each other has depended largely upon factors of legal technique and of 
political organization. Economic factors can therefore be said to have 



i ] Fields of Substantive Law 055 

had an indirect influence only. To be sure, economic influences have 
played their part, but only to this extent: that certain rationalizations 
of economic behavior, based upon such phenomena as a market economy 
or-.freedom of contract, and the resulting awareness of underlying, and 
increasingly complex conflicts of interests to be resolved by legal 
machinery, have influenced the systematization of the law or have 
intensified the institutionalization of the polity. We shall have occasion 
to observe this time and again. All other purely economic influences 
merely occur as concrete instances and cannot be formulated in general 
rules- On the other hand, we shall -frequendy see that those aspects 
of law which are conditioned by political factors and by the internal 
structure of legal thought have exercised- a strong influence on economic 
organization. In the following paragraphs, we shall deal briefly with 
the most important conditions by which the formal characteristics of 
law, i.e., lawmaking and lawfinding, have been influenced. We shall be 
especially interested in observing the extent and the nature of the ration- 
ality of the law and, quite particularly, of that branch of it which is 
relevant to economic life, viz., private law. 

A body of law can be "rational" in several different senses, depend- 
ing on which of several possible courses legal thinking takes toward 
rationalization. Let us begin with the seemingly most elementary 
thought process, viz., generalization, i.e., in our case, the reduction of 
the reasons relevant in the decision of concrete individual cases to one 
or more "principles," i.e., legal propositions. This process of reduction 
is normally conditional upon a prior or concurrent analysis of the facts 
of the case as to those ultimate components which are regarded as 
relevant in the juristic valuation. Conversely, the elaboration of ever 
more "legal propositions" reacts upon the specification and delimitation 
of the potentially relevant characteristics of the facts. The process both 
depends upon, and promotes, casuistry. However, not every well-devel- 
oped method of casuistry has resulted in, or run parallel to, the develop- 
ment of legal propositions of high logical sublimation. Highly com- 
prehensive schemes of legal casuistry have grown up upon the basis of a 
merely paratactic association, that is, of the analogy of extrinsic elements. 
In our legal. system the analytical derivation of "legal propositions" from 
specific cases goes hand in hand with the synthetic work of "construc- 
tion" of "legal relations" and 'legal institutions," i.e., the determination 
of which aspects of a typical kind of social or consensual action are' 
to be regarded as legally relevant, and in which logically consistent way 
these relevant components are to be regarded as legally coordinated, i.e., 
as being in "legal relationships." Although this latter process is closely 
related to the one previously described, it is nonetheless possible for a 
very high degree of sublimation in analysis to be correlated with a very 



656 ECONOMY AND LAW (SOCIOLOGY OP LAW) [ Ch. VUI 

low degree of constructional conceptualization of the legally relevant 
social relations. Conversely, the synthesis of a "legal relationship" may 
be achieved in a relatively satisfactory way despite a low degree of anal- 
ysis, or occasionally just because of its limited cultivation. This contra- 
diction is a result of the fact that analysis gives rise to a further logical 
task which, while it is compatible with synthetic construction, often 
turns out to be incompatible with it in fact. We refer to "system- 
atization," which has never appeared but in late stages of legal modes 
of thought. To a youthful law, it is unknown^ According to present 
modes of thought it represents an integration of all analytically derived 
legal propositions in such a way that they constitute a logically clear, 
internally consistent, and, at least in theory, gapless system of rules, 
under which, it is implied, all conceivable fact situations must be capa- 
ble of being logically subsumed lest their order lack an effective guar- 
anty. Even today not every body of law (e.g., English* law) claims that 
it possesses the features of a system as defined above and, of course, the 
claim was even less frequently made by the legal systems of the past; 
where it was put forward at all, the degree of logical abstraction was 
often extremely low. In the main, the "system" has predominandy been 
an external scheme for the ordering,of legal data and has been of only 
minor significance in the analytical derivation of legal propositions and 
in the construction of legal relationships. The specifically modern form 
of systematization, which developed out of Roman law, has its point of 
departure in the logical analysis of the meaning of the legal propositions 
as well as of the social actions.** The "legal relationships" and casuistry, 
on the other hand, often resist this kind of manipulation, as they have 
grown out of concrete factual characteristics. 

In addition to the diversities discussed so far, we must also consider 
the differences existing as to the technical apparatus of legal practice; 
these differences to some extent associate with, but to some extent also 
overlap, those discussed so far. The following are the simplest possible 
type situations: 

Both lawmaking and lawfinding may be either rational or irrational. 
They are formally irrational when one applies in lawmaking or law- 
finding means which cannot be controlled by the intellect, for instance 
when recourse is had to oracles or substitutes therefor. Lawmaking and 
lawfinding are substantively irrational on the other hand to the extent 
that decision is influenced by concrete factors of the particular case as 
evaluated upon an ethical, emotional, or political basis rather than by 
general norms. "Rational" lawmaking and lawfinding may be rational in 
a formal or a substantive way. All formal law is> formally at least, rela- 
tively rational. Law, however, is "formal" to the exten t that, in both 
substantive and procedural matters, only unambiguous general char- 



i ] Fields of Substantive Law 657 

acteristics of the facts of the case are taken into account. This formalism 
can, again, be of two different kinds. It is possible that the legally rele- 
vant characteristics are of a tangible nature, i.e., that they are perceptible 
as sense data. This adherence to external characteristics of the facts, for 
instance, the utterance of certain words, the execution of a signature, 
or the performance of a certain symbolic act with a fixed meaning, repre- 
sents the most rigorous type of legal formalism. The other* type of for- 
malistic law is found where the legally relevant characteristics pf the 
facts are disclosed through the logical analysis of meaning and where, 
accordingly, definitely fixed legal concepts in the form of highly abstract 
rules. are formulated and applied. This process of "logical rationality" 
diminishes the significance of extrinsic elements and thus softens the 
rigidity of concrete formalism- But the contrast to "substantive ra- 
tionality" is-,- sharpened, because the latter means that the decision 
of legal ^ri^lferRs is influenced by norms different from those obtained 
through Jogteal generalization of abstract interpretations of meaning. 
The norms to which substantive rationality accords predominance in- „ 
elude ethical' imperatives, utilitarian and other expediential rules, and L. 
political maxims, all of which diverge from the formalism of the "ex? * 
ternal characteristics" variety as well as from that which uses logical 
abstraction. However, the peculiarly professional, legalistic, and abstract 
approach to law* in 'the modem sense is possible only in the measute i 
that the law is formal in character. In so far as the> absolute rVjrmaUsiff 
of classification according to "sense-data characteristics" prevails, it' ex- 
hausts itself in casuistry. Only that abstract method which employs the 
logical interpretation of: meaning allows the execution of the specifically 
systematic task, i.e., the collection and rationalization by logical means 
of all the several rules recognized as legally valid into an internally con- 
sistent complex .of abstract legal propositions. 

Our task is now to find out how the various influences which have 
1 participated in the formation of the law have influenced the develop- 
ment of its formal qualities. Present-day legal science, at least in those 
forms which have achieved the highest measure of methodological and 
logical rationality, i.e., those which have been produced through the 
legal science of the Pandectists Civil Law, proceeds from die following 
five postulates: viz., first, that every concrete legal decision be the "ap- 
plication" of an abstract legal proposition to a concrete "fact situation"; 
second, that it must be possible in every concrete case to derive the 
decision from- abstract legal propositions by means of legal logic; third, 
that thej^;*iii$^ afctuauy or virtually constitute a "gapless" system of 
kgaK£$M*6^or^''i« must, at leasts be treated as if it were such a gap- 
less system? ioifljjii; that whatever cannot be "construed" rationally in 
legal terms is, also legally irrelevant; and fifth, that every social action 



6 5 8 



ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 



of human beings must always be visualized as either an "application" 
or "execution" of legal propositions, or as an "infringement" thereof, 
since the "gaplessness" of the legal system must result in a gapless 
'legal ordering" of all social conduct. (This conclusion has been drawn 
particularly by Stammler, although not explicidy.)** 

However, for the moment we shall not concern ourselves with these 
theoretical postulates, but shall rather investigate certain general formal 
qualities of the law which are important for its functioning. 



NOTES 

i. The Sociology of Law, edited by Max Rheinstein, is the most thoroughly 
annotated part of the manuscript. Much of the literature used by Weber in other 
chapters, too, is cited here. The English edition of the Sociology of Law was a 
group effort. In addition to Shils and Rheinstein, Mrs. Elizabeth Mann Borgese 
and Mr. Samuel Stoljar participated in the translation; the latter also worked on 
the annotations, together with Dr. Alise Vagelis and Dr. Stoyan Bay itch. Unless 
otherwise indicated, all notes in this chapter are by this group. 

On the following pages we reproduce Rheinstein's list of books cited in ab- 
breviated form in the annotation. Books marked by an asterisk appear to have 
been used extensively by Weber. For further guidance to the contemporary 
literature used by Weber or closely related to the thoughts developed in this 
chapter, see Part 2 of the bibliography compiled by Johannes Winckelmann for 
his latest German edition, Rechtssoziolocie (2nd rev. ed.; Neuwied: Luchter- 
hand, 1967), 404-423. 



Alabaster 

Allen 

* Am i«a 

* Black stone 
Bonner and Smith 

'Brunner, Ash. 



•Brunner, Rechts- 
geschichte 



*Bryce 
buckland 



Alabaster, E., Notes and Commentaries 

on Chinese Criminal Law. 1899. 
Allen, C. K., Law in the Making, 3rd ed, 

1939- 

Crundriss des germanischen Rechts, . 
3ided. 1913. 

Blackstone, W., Commentaries on the 
Laws op England, 1765-69. 

Bonner, R. and Smfth, G., The Admin- 
istration of Justice from Homer to 
Aristotle, 2 vols. 1930-38. 

Brunner H., Abhandlungen zur Rechts- 
geschichte, z vols. 1931. (Contains re- 
prints of articles published at earlier times 
in other places.) 

Brunner, H., Deutsche Rbchtsge- 
schichte. Vol. 1, 1st ed. 1892, 2nd ed. 
1906. Vol. 2, 1st ed. 1892, 2nd ed. 1928 
by C. Freiherr von Schwerin. 

Bhyce, J., Studies in History and Ju- 

, RISPRUDENCE. I 90 I . 

Buckland, W. W., Textbook of Roman 
Law, 2nded. 1932. 



i] 



Fields of Substantive Law 



659 



Diamond 
*Ehrlich 



Encyc. Soc. Sci. 
Engelmann 

EnCELMANN AND MlLLAR 

*Enneccerus 

*GlERKE 

* Gierke, Genossbn- 

schaftsrecht 

* Gierke, Phivatrecht 

*Goldschmidt 
'Hatschek 
Hedemann 

Holds worth 



*Huebner 

*Jbllinek 
•Jellinsx, System 
*Jhbring 



JdRS AND KuNKEL 
JOLOWICZ 



Diamond, A. S., Primitive Law. 1935 

Ehrlich, E., Fundamental Principles of 
the Socvjlogy op Law, Transl. by Moll, 
1936. Weber used the German original 
s.t. Ghundlegunc der Soziologib des 
Rechts. 1913. 

Encyclopedia of the Social Sciences, ed. 
by Seligman, E. R. A., and Johnson, A., 13 
vols. 1933. 

Engelmann, W., Die Wihobrgsburt deb, 
Recktskultur in Italibn. 1938. 

Engelmann, A. and Millah, R. W. His- 
tory of Continental Civil Procedure. 
1927. 

Enneccerus, L. ( Lehrbuch des burcer- 
lichen Rechts, 1928 ed. 

von Gierxe, O., Development of Politi- 
cal Theory, Transl. by Freyd. 1939. 

von Gierke, O., Das Deutsche Gbnossbn- 
schaptsrecht, 4 vols. 1868-1913 

von Gierke, Deutsches Privatrecht, 3 
vols. 1895, 1905, 1917. 

Goldschmidt, L., Universalgeschichts 
des Handelsrechts. 1891. 

Hatschek, O., Englisches Staatsrbcht, 2 
vols. 1905. 

Hedemann, J. W., Dm Fortschritte deb 

ZlVILRECHTS IM 19, JAHRHUNDBRT, 3 Vols. 

1910, 1920, 1930. 

Holdsworth, Sm W., History of English 
Law, i 3 vols.; vols. 1-3, 3rd ed. 1922-23; 
vols. 4-12, 1924-38; Tables and Index by 
E. Potton, 1932; vol. 13, ed. by Goodhart, 
1952. 

Hubbneh, R., History of Germanic Pri- 
vate Law, Transl. by Philbrick, 1918. 
Weber used the German original s.t 
Grundzuce des Deutschen Privat- 
rechts. 1913. 

Jbllinek, G., Allcbmeinb Staatslbhrb, 
3rd ed. 1914. 

Jellinek, G., System dbr subjbkttven 6f- 
fentlichbn Rechte. 1892. 

von Jhering, R., Der cbist des romiscken 
Rechts auf den verschiedenen Stufen 
seinbr Entwicklung, 3 vols., 5th-6th 
eds. 1906-07, 

JdRS, P., ROMISCHES pRrVATRECHT, 2nd ed. 

by Kimkel, W., 3rd ed. 1949. 
Jolowicz, H. F., Historical Introduction 
to Roman Law, 1932. 



66o 



ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 



*Karlowa 
Kassr 

KSLSBN 
'KoHLER AND WENCSR 

*Lbist 

*Maine 

* Maine, Institutions 

"Maine, Early Law 

•Maitland, Forms 

•Maixland, Papers 

*MnTEM 

"MlTTEIS, RsiCHSRECHT 

'MoMMSEN 

Notes 
•Iauly and Wissowa 

Planitz 
Plucknett . 
"Pollock and Maitland 

Raden 

Rheinstbin, Dbcedbnts' 
Estates 

Rheinstbin, Struxtur 

Rostovtzev ^ 
Sav. Z. Germ. 



Karlowa, O., Romischb Rechtsge- 

SCHICHTE. I9OI. 

Kassr, M., Das altromische Jus. 1949. 
Kelsen, H., General Theory of Law and 
State. 1945. 

KoHLER, J., AND WeNGBR, L., AXXaBMBINX 

Rbchtsgeschichte. 1914. 

Leist, B. W., Graoo-Italischb Rbchtsge- 
schichte, 1884, 

Maine, Sir H. S., Ancient Law v 1906. 

Mainb, Sir H. S., Lectures on the Early 
History of Institutions, 7th ed. 1897. 

Maine, Sir H. S., Dissertations on Early 
Law and Custom. 1907. 

Maitland, F. W., Thb Forms of Action^ 
at Common Law, 1936 ed 

Maitland, F. W., Collected Papers, 3 
vols. 1911. 

MlTrBIS,L,R6MISCHBSPRIVATRBCHT. 1908. 

MlTTBIS, L., RHICKSRBCHT UND VoLXS- 

RECHT IN DBN 6sTLICHEN PrOVINZEN DBS 

romischbn Kaiseareichs. i 89 1. 

MOMMSBN, T., AbRISS DBS ROMISCHEN 

Staatsrechts. 1893, 2nd, ed. 1907. 
NoYss, R,, The {NSTxranoN of Property. 

1936. 
Pauly, A. F., and Wissowa, G., Realbnzy- 

klopaddi dbr klassischen Altsrtums- 

wissbnschaft. 1894 et s. 
Planitz, H., Deutsche Recht{cb- 

SCHICHTE. 1950. 

Plucknett, T. F. T., Concise History of 
the Common Law. 1948. 

Pollock, Sm F. and Maitland, F. W., The 
History of English Law bbforb the 
Time of Edward I, i vols., 1st ed. 1899. 
2nded. 1923. 

Radin, M., Anglo-American Legal His- 
tory 1936. 

Rheinstbin, M-, Cases and Other Ma- 
terials on the Law of Dbcedbnts' Es- 
tates, 1947. 

Rheinstbin, M., Dm Sntsruipsi vbr- 
trAglichEn Sckuldvbkhaltnisses im 

ANOLO-AMBKIKAMISCBSN RbCHT. I93Z. 

Rostovtzev, M. )., Social and Economic 

History of the Roman Empire. 1936. 

Zeitschrift der Savkjny Stiftung fur 

RsCHTSCESCHICHTB, GBRMANimSCHE Ar- 
TEILUNG. 



fields of Substantive Law 



66 



Sav. Z. 


Rom. 


^Schroder 


Schulz, 


History 


Schulz, 


Principles 


Seagle 




Smith 





*S0HM 

*Stobbe 
Stone 
Thuhnwald 

VlNOCRADOFF 

Wenger 

Z. f. Handelsr. 
Z. F. VOL; Rw. 



Zeitschrift der Savigny Stiftunc fur 
Rechtsgeschiciite, Romanistische Ab- 

TE1LUNC. 

Lehrbuch der deutschen Rechtsge- 
schickte, 16th ed. 1912. 

Schulz, F., History of Roman Legal Sci- 
ence. 1946. 

Schulz, F., Principles of Roman Law. 
1936. 

Seacle, W., The Quest for Law, 1941. 

Smith, M., Development of European 
Law. 1922. 

Sohm, R., Institutes of Roman Law, 
Transl. by Ledlie, 3rd ed! 1907. Weber 
used the German original s.t. Institu- 
tionen des romischen Rschts, 15th ed, 

'9'7- 
Stobdf., O., Geschichtf lieu Deutsche:; 

RECHTSguELLEN. I864. 

Stone, )., The Province and Function of 

Law, 1946, 
Thurnwald, R., Werden, Wandel ond 

Gestaltunc, des Rechts, 1934. 
Vinogradoff, P., Outlines of Historical 

Jurisprudence, 2 vols, 1922,. 
Wenger, L., Institutes of the Roman 

Law of Civil Procedure, Transl. by 

O. H. Fisk, 1940. 
Zeitschrift fuh das cesamte Handels- 

recht. 
Zeitschrift fur vercleichende Rechts- 

wissenschaft. 



a. Weber refers here to Continental, and especially German, legai theory, 
where the distinction between public law and private law is given particular 
emphasis. The distinction was familiar to the Roman jurists and well known 
especially in Uipian's definition (Digest 1.1.4.) °f public law as that which "is 
concerned with the Roman state" (quod ad statum ret Romanae speciat) and of 
private law as that which "is concerned with the interest of individuals" (quod 
ad smgtdomm ut&itmem ■pertitiei). The distinction has been of practical signifi- 
cance where a government, although being prepared to guarantee a firm legal 
order with regard to the private relations among the citizens themselves, yet re- 
mained unwilling to fix those relations between them in hard and fast rules^ This 
situation was typical of the late Roman Empire as well as of the absolute mon- 
archies of the modem age. To the degree to which the organs of the state became 
subject to rules of law, the distinction between public and private law lost im- 
portance, ultimately to become no more than a convenient classification of certain . 
legal rules, especially for the purposes of legal writing and education. 

3. CL infra, sec Un. '•' 

4. This description of the "ideal type" of the - totalitarian state was written 
before it emerged in its modern form; — Weber's term "government" has been re- 



662 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

tamed here, although the term "executive" might hetter correspond to American 
parlance. 

5. An Anglo-American lawyer would regard this right as an ordinary instance 
of the "right" of access to the courts. But as a continental lawyer, Weber thinks 
of the protection of this right as that entrusted to the specially established ad- 
ministrative tribunals of either the French or the German type. This kind of pro- 
tection of the citizen against abuses of governmental powers is organized on lines 
different from those known in the countries of the Common Law, but it should 
not be regarded as less effective, Cf. E. Freund, Administrative Law, 1 Encyc. 
Soc. Set. (193°) 451, and Garner, Anglo- American and Continental Evr&pean 
Administrative Low (1919), 7 N.Y.U.L.Q. Rev. 387. 

6. M. Kaser, Zur altromischen Hausgewalt (1950), 67 Sav. Z.Rom. 474. 

7. German, and generally continental, theory of procedure distinguishes be- 
tween two types of trial: (1) the trial according to the Offizjalnuudme, and (2) 
the trial according to the Verhandlangsmaxime. Under (1), the trial is domi- 
nated by the presiding judge whose function it is to ascertain what has really 
happened and who is, therefore, alone or primarily entitled to call and examine 
the witnesses and to require such proof as he thinks necessary. Under (2), the 
judge only assumes the role of umpire in a trial mainly conducted by the parries; 
each party decides upon the witnesses he wishes to call, the questions he wishes 
to ask in examination and cross-examination, and the kind of evidence he wishes 
to submit. Actually, neither type of trial has in practice ever existed in a pure 
form. Continental procedure, both civil and criminal, follows today mainly the 
Verhandlungsmaxlme, although the latter is modified, especially in criminal pro- 
cedure, by certain concessions to the Otfizutlmaxtme. Cf. Engblmann and Mil- 
lar, 11; Millar, Formative PrindfUt of Civil Procedure (1923) 18 III. L. Rsv. 
1, 94, 150; and his article on Procedure in iz Encyc. Soc. Sci. 439 (with list 
of further literature). Concerning modem continental procedure see also Sckles- 
incer, Comparative Law (1950) 197, 510, 523; and Hamson, Civil Procedure 
in France and England (1950), ioCamb. L.J. 411. 

8. Cf. Jellinex, System 3; R. Gnbist, History op the English Consti- 
tution (Ashworth's tr. 189O 338; Hatsckek, 503; J. E, A. Joliffs, Consti- 
tutional History of Mediaeval England (1937) 337; also Anson, Law 
and Custom and the CoNsnruTiow (1892) 262; on the present practice, see 
Wade and Phillips, Constitutional Law (1950) in. 

9. Weber's classification of private bills and the budget as "purely adminis- 
trative matters" derives from German legal and constitutional theory, which dis- 
tintpiishes between laws in the formal and the substantive sense. A law in the 
substantive sense means an enactment authorizing interference by the state with 
the life, liberty, or property of the citizens. A law in the formal sense is simply 
an act issuing from the legislature, ir respective of its contents. One of the postu- 
lates of the "rule of law" as understood on the Continent is that the state is not 
allowed to interfere with life, liberty, or pr o pe r ty without the consent of -the 
people or thetr duly elected representatives. Hence, any law in the substantive 
sense must be, or at least have its basis in, an act of the legislature, i.e., a law in 
the formal sense. It is this political theory of the rule of law which constitutes the 
basis of the principle so firmly held in the continental countries, which requires 
that all law be expressed in a code or statute, and which thus excludes the recog- 
nition as legitimate of any "common law" which would not be hated on statute 
but solely on judicial precedent. The notion that law could be made, or applied by 
courts without approval of the legislature expressly given in a statute, jo that there 
could be a government by the judiciary rather than by the people's duly elected 



* ] - Fields of Substantive Law 663 

representatives, appeals repugnant to the traditional continental notions of the 
rule of law and democracy. 

On die other hand, measures which do not constitute public interference with 
the life, liberty, or property of die subjects are classified as "adnimistrative acts" 
which generally do not require for their validity a law in the formal sense. But 
modern constitutional law often requires that even an ''administrative act" be 
embodied in a formal law, that is, be properly passed by the legislature- As regards 
die budget, it is, in theoretical analysis, only a program of public revenue and 
expenditure, and thus an administrative act. This analysis does not, of course, 
apply to the tax and customs provisions which constitute interferences with 
property. But even for the budget as such, positive constitutional law requires 
that it be embodied in an act of the legislature. Hie budget, therefore, albeit an 
administrative act, constitutes also a law in the formal sense. Cf. Jbtlinbx, Sys- 
tem 226; also Kblssn 123, 131; Jelunek, Vbrwaltungsmcht O949) 8, 
38 s; Flbinbr, Institutionbn DBS deutschbn Verwaltunojrbchts (1922) 
17; Lab and, Dbutsches Rsichsstaatsrecht (191 2) 130. 

io. Cf. the special rules applying in this country to government contracts and 
the enforcement of contractual claims against the government. The special status 
of government contracts » even more pronounced in Prance, where they are sub- 
ject to a body of special rules to a large extent judicially elaborated, not by the 
ordinary courts, but by the Council of State and the administrative tribunals sub- 
ordinate to it. Cf. Goodnow, Comparative Administrative Law (1893) I, 86, 
107; II, 217; W aline, La notion judiciairb de e'sxces no pouvoot (1926) 
7-10, 76 et seq.; F. A. Ogg, European Governments and PoLrncs ( ^2nd ed. 
■943) '571, 768. On the other hand, under the fisc theory, which prevails in 
Germany and the other countries following the German system, government con- 
tracts are treated like contracts concluded between private parties and are subject 
to the jurisdiction of the ordinary courts. The same treatment applies to torts 
committed by public officials in the course of their official duties. Cf. E. Borchard, 
Suite Liability; 14 Encyc. Soc. Sci. 338, with bibliography; also 2 Goodnow, 
op. tit. 240, 258-261; as to government contacts in England, see Wade and 
Phillips, op. cit.supran, 8 at p. 309. ' 

11. Following Gai us IV. 103, 105, it has become customary to distinguish 
between indicium legitimum and the indicia quae imperio continenhir. The 
former is the regular civil procedure in which the issue is defined before the 
praetor, formally stated in the formula, and then tried before and decided by the 
lay judge (judex). The latter term covers a variety of special proceedings in 
which, as a common feature, the issue is not only formulated by the magistrate 
but also tried before and decided by him or, under his authority, by a substitute 
(suhrogatus, surrogate). One of these procedures was the so-called bureaucratic 
cogmtto, which applied to the litigation concerning the lands Owned by the state 
as ager pubUcus. Ibis procedure differed from the ordinary civil procedure not 
only through the absence of a iu&ex, but also through the fact that judgment 
could be rendered not only for money damages but also for specific performance. 
As Weber indicates, its significance has been commonly neglected in the literature 
on Roman law. For further information on the legal aspects of the bureaucratic 
cognitio, see Wencbr, 28, 6z et seq., 239, 250, 255 et seq.; as to its significance 
in connection with the ager puilicus, see Weber, Romische Acrargeschichte 
(189 O, i67etseq.;cf. also Momm sen, 290. 

12. On the role of magic in legal development, see G. Gurvitch, Magic and 
Law (1942), 9 Social Research 104, and same, Essais de sociologie (1939) 
204. For a general account of the role of magic in primitive societies as regards 



66 4 



ECONOMY AND LAW (SOCIOLOGY OF LAw) . [ Ch. Vlll 



the criminal law and the peculiar nature of private or civil law, see Maltnowsxi, 
Crime and Custom in Savage SocrBTT (19^6) 50-59, 67-68, 98-99, 119- 
121. See also Hogbin, Law and Obdsr in Polynesia 0934) and Malinowski's 
introduction thereto, especially pp. xvii-lxxii; Lowie, Primitive Religion 
(1925); Tylor, Phimitivb Culture (6th ed. 1920); Radcliffb-Brown, The 
Andaman Islanders (1922); Wbstbrmabcx, Ritual and Belief in Morocco 
G926). Usually regarded as die basic work is Sir Jambs Frazbr, The Golden 
Bough, vols. I and II; The Magic Art (3rd ed. 1911, abridged $d. 1925). For 
a short introijuction to the problem, see Rosson, CiviLiaATioN and The Growth 
op Law (1935) 74 et seq. 

13. See on all this in general: Engelmann and Miliar, 118, 129, 211, 
652; R. De la Grasserie, The Evolution of Civil Labv (1918) 609; Dia- 
mond 301, 307; Lowie, PiuMrnvB Society (1920) 39^, 425. See also as 
regards: fi 

(a) Roman law: Noyes 201-^07; A. Hagerstr6m, Dui'nRda 
tionsbbcriff (1927) 600; Kasbr 308-316, 322—336. t_,' 

(b) Greek law; P. Vinogradoff, Greek Law, in Collected Ityjfsfts,' 
prudence, 1928)43, 44. 

(c) Oriental law: Articles "law" in 9 Enctg. Soc. Sgi. (i!|fe3) 



Oblica- 



2(QURIS- 



ci#3: 

iarnLa 




'♦**$ 



', VW ANCIB« 



there cited, especially the articles by Seidl on EgyptiarftLaw,'']* 1 
schaker on Cuneiform Law, p. 211; and Gulalc on JewishsJjjiaw, p'3)jfag.\ 

(d) Slavic law: L. J. Strachovsxy, A Handbook of Slavi^^Studi 
R Dareste, "£tudbs d'histoire du drott (1889) 
DRon slave). 

(e) Germanic law: Amira 280-282; 2 Bkunnbr, Rbchtsgeschichtb 328.' 

In English law the distinction between tort and contract developed it a rather 
late stage. Cf. Maitland, Forms 8, 48, 53 et sea.; Holdswor 1 ^, II, 43 et sea., 
III, 375 fit seq-, 412 et sea.; Plucenbtt. ?■ 

14. The reference is to Chinese law as it existed before the reforms following 
the revolution of 1912; see J. H. Wigmorb, World's Legal Systems (1928) 
141; W. S. H. Hung, Outlines of Modern Chinese Law (1934) 5, 2 49J 
Alabaster. 

15. On the actio de pauperie and noxae datio see Sohm 280, 331 (actio de 
pauperie}; and 191, 194, 280, 331 (noxae dotto); Wbncbr 153, where further 
literature is cited, 

16. See infra, sec. Ui:6, under (c). 

17. As to Rome, see Wengbr 8 et sea.; as to Germanic law, see Huebnbr, 
427, 477, 478. Cf. also the source materials collected in Stone and Simpson, 
Law and Soctbty (1948) i$z etseq., 284 et sea. 

18. Honoratiores (Lat. "those of higher honor"). In German die word 
Hanoraticren is used, often with a slight implication of friendly ridicule, to mean 
the more respectable citizens of a town. In the present context Weber means by 
"legal fcoworotiores" (Rechtshonaratioren), those classes of persons who have (ij 
in some way made the occupation with legal problems a kind of sp e ci alize d expert 
knowledge, and (2) enjoy among their group such a prestige that they are able to 
impress some peculiar characteristics upon the legal system of their respective 
societies. The context makes it dear, however, that persons of this kind can be 
honoratiores even though they receive a more than nominal remuneration for 
their activities." As to the role of legal honoratiores in general, see infra, sec. br, 

19. As to the Roman rule that ornnis condemnaHo est r pecuniaria, see 
Wengbr 143 et tea. 



* ] Fields of Substantive Law 665 

20. Cf. Engelmann and Millar 166-168; also, M. Esinein, L'origme et h 
hgique de la jurisprudence en matidre d'astreintes (1903), 2 Revue trimestbi- 

BLLE DE DROIT CIVIL 5. 

21. Here Weber seems to be mistaken. What he may have had in mind are 
the fictions resorted to in the action of ejectment; cf. Mattland, Forms. For the 
doctrine of specific performance in English law, see Mattland, Equttv (1936) 
301-317; H. Hazbltine, Early History of Specific Performance of Contract in 
English Law CFbstgabb bur Kohlbr, 1913) 68—69. 

22. Infra, sec. w:2, point "4. 

23. This statement is too broad. It applies to the action of assumpsit, but not 
to the actions of covenant, debt, and detinue. 

24. See Goudy, Two Ancient Brocards, in P. Vinogradobf, Essays of 
Legal History (1913) 216-227; Holdsworth, III, $y6etseqc 

25. Cf. infra, sec. «;6. 

26. Weber cities here the ancient German maxim of Hand muss Hand 
ivahren ("hand must warrant hand")- It means that where a bailee has transferred 
the chattel to a third party, the bailor has an action only against the bailee. See 
Hubbnbr, 407, 421, 448; 2 Bkunner, Rechtsgbschichte 512; (1928), 668; 
Holmes, Common Law (1951), 164; 2 Pollock and Maitland (1899) 155. 
As to the alleged indispensability for modern business of the protection of bona 
fide purchasers far beyond the modest scope of protection existing in American 
law, see 3 Motive zu dem Entwuree bines bubcbklichbn Gbsbtzbuchbs 
bur das Deutsche Reich (1888) 344. 

27. The action which Weber means here is, as indicated by bis reference to 
the rei vindicatio, that action which has been developed in all more elaborate sys- 
tems and which is now constituted in American law by the action of replevin. It 
is the remedy by which the owner as such, and without reference to any contract 
or tort, can obtain restitution of a chattel to which he has the title, but which he 
finds in the hands of another person to whom he has not given a special permis- 
sion or right to hold or to use it. 

28. As to the Roman rei vindicatio, see Wbncbr 127; Sohm 189, 248, 269; 
Buckland, Manual 139—142; Jolowicz 142-144. 

29. Cf. Maitland, Forms, 22 et seq.; Pollock and Mattland, 107, 137, 
146-148, 166; Holdsworth, III, 318 etseq. 

30. Cf. Jolly, Recfei und Sitte, in Buhlbrs, Grundriss der indo-arischen 
Philologib (1896) 8. 

31. On the history of market overt in English law see Holdsworth V, 98, 

105, IIO-III. 

32. See r Mill and Wilson, History of British India (1858) 160. 
, 33. Lat. — literally: "You are holding by bad order," i.e., "unlawful!;' " 

34. Diodikosia is a dispute between two claimant? aiming at a judicial decla- 
ration as to who is "really' the holder of the title. It is thus, not an action for 
damages brought by an alleged title holder against an alleged wrongdoer. Of. 
Meibr und Schoemann, Dkr Attische Process (1824) 367; 2 Bonner and 
Smith 79, 101. 

35. These, as Weber adds, "are of a totally diP^r-mi structure." As to these 
actions, see Amira 192-199, 266; Gierke, GENOsf NscHAFTSftBCMT II, 268- 
325; R. Sohm, Frankisches Rccfct und romisches Recht (1880), 1 Sav. Z. Germ. 
27. 

36. See also Wbbbb's Gbnbral Economic History C'95<0, c. I. [Wtrt- 
schabtsgbschichte (1923) 17, 19] and literature there cited. 

.37. For the military punishment imposed by the Roman comWa cewtwriatr 



66 6' ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

see Mains 374-381; Lowie, Origin of the Stats (1927) 102-108; and the 
same author's PRrwrnvE Society (1920) 385, 394-396. 

38. An official of eoual or higher power (par matorve fotestas) could, through 
bis "stepping in" (intercessio), stop the activities of other officials; cf. Mommsh* 
22; L. Homo, Roman Political Institutions O929) 2^ 45, 2*1-223; Jolc- 
wicz II, 43. 45. 47. 337- 

39. Montesquieu, SPIRIT of THE Laws (Nugent transl. 1049) 151. 

40. Cf. Homo, op, cit. r sub tit. "imperium" (index), esp. pp. 206-235; * 
Mommsbn 76-191; W. Hbitxand, Roman Republic (1909) vol. I, sub tit. 
iHtorperium." 

41. Kasek 174; Noybs 146. 

42. See Maitland, Forms 78. 

43. RiCHTSTBiG — a book containing advice as to how to initiate and prose- 
cute a lawsuit. Rechtsbuch (.Spiegel, "Mirror of Law") — a handbook of law, 
especially of substantive law. As to both, see Stobbe I, 286 et. seq., 390 ex seq., II; 
143 etseq. 

44. Gaius' Institutes (co. 161 a.d.) is the oldest work accessible to us in 
which we find that arrangement of die materials in the three parts of Persons, 
Things, and Actions, which was traditionally followed until the 18th century. 

45. The elaboration of this modern form of "systematization" was particularly 
the work of the eighteenth-century scholars of Natural Law and the German 
Pandectists of the nineteenth century; as to their work, see Ehrlich, c. 14; v. 
Hippel, Gustav Hugos jusistischbr Arbeitsplan (1931); same author, Zur 
GbsbTzmassigkeit jueistischbr Systembildunc (1930); Wibackeb, Vom 
Romischhn Recht (1944) 256; for further bibliographical references see 20th 
Century Legal Philosophy Series, The Jurisprudence of Interests (1948) 
200. 

46. See Rudolf Stammlbr, Wirtschaft und Recht nacu der ma- 
terial istisghen Geschichtsauffassung (5th ed., 1924), 541. 



u 
Forms of Creation of Rights 



1 . Logical Categories of "Legal Propositions" — Liberties 
and Powers — Freedom of Contract 

The fusion of all those organizations which had respectively en- 
gendered their own bodies of law into the one compulsory association 
of the state, now claiming to be the sole source of all "legitimate" law, 
is characteristically reflected in the formal mode in which the law serves 
the interests, especially the economic interests, of the parties concerned. 
We have previously defined the existence of a right as being no more 
than an increase of the probability that a certain expectation of the one 



H ] Forms of Creation of Rights 667 

to whonf the law grants the right will not be disappointed. We shall 
continue to consider the creation of a right as the normal method or 
increasing such probability, but we must recognize that, in a sociological 
analysis, there is but a gradual transition from this normal case to the 
situation where the legally secured interest of a party is but the "reflex" 
of a "regulation" and where the party does not possess a "right" in the 
strict sense. 1 

To the person who 6nds himself actually in possession of the power 
to control an object or a person the legal guaranty gives a specific cer- 
tainty of the durability of such power. To the person to whom some- 
thing has been promised the legal guaranty gives a higher degree of 
certainty that the promise will be kept. These are indeed the most ele- 
mentary relationships between law and economic life. But they are not 
the only possible ones. Law can also function in such a manner that, 
in sociological terms, the prevailing norms controlling the operation of 
the coercive apparatus have such a structure as to induce, in their turn, 
the emergence of certain economic relations which may be either a cer- 
tain order of economic control or a certain agreement based on economic 
expectations. This occurs when law is expressly created for a particular 
purpose. Such a situation presupposes, of course, a specific stage of legal 
development about which it will be appropriate to make some observa- 
tions. 

From the juridical point of view, modern law consists of "legal propo- 
sitions," i.e., abstract norms the content of which asserts that a certain 
factual situation is to have certain legal consequences. The most usual 
classification of legal propositions distinguishes, as in the case of all 
norms, between prescriptive, prohibitory, and permissive ones; they 
respectively give rise to the rights of individuals to prescribe, or pro- 
hibit, 01 allow, an action vis-a-vis another person. 1 Sociologically, such 
legally guaranteed and limited power over the action of others corre- 
sponds to the expectation, that other persons will either engage in, or 
refrain from, certain conduct or that one may himself engage, or fail 
to engage, in certain conduct without interference from a third party. 
The first two expectations constitute claims, the latter constitutes a privi- 
lege.* Every right is thus a source of power of which even a hitherto 
entirely powerless person may become possessed. In this way he becomes 
the source of completely novel situations within the community. Never- 
theless, we are not at present concerned with this phenomenon, but 
rather wish to deal with the qualitative effect of legal propositions of a 
certain type inasmuch as they expand an individual right-holder's power 
of control. This type with which we shall deal is constituted by the third 
kind of legally guaranteed expectations previously mentioned, i.e., the 



66 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. V1U 

frivileges. In the development of the present economic order they are 
of particularly great importance. Privileges are of two main kinds; The 
first is constituted by the so-called freedoms, i.e., situations of simple 
protection against certain types of interference by third parties, especially 
state officials, within the sphere of legally permitted conduct; instances 
are freedom of movement, freedom of conscience or freedom of disposi- 
tion over property. The second type of privilege is that which grants 
to an individual autonomy to regulate bis relations with others by his 
own transactions. Freedom of contract, for example, exists exactly to 
the extent to which such autonomy is recognized by the legal order. 
There exists, of course, an intimate connection between the expansion 
of (he market and the expanding measure of contractual freedom or, 
in other words, the scope of arrangements which are guaranteed as 
valid by the legal order or, in again diiferent terms, the relative signiB- 
cance within the total legal order of those rules which authorize such 
transactional dispositions. Ih an economy where self-sufficiency pre- 
vails and exchange is lacking, the function of the law will natu- 
rally be otherwise: it will mainly define and delimit a person's non- 
economic relations and privileges with regard to other persons in accord- 
ance, not with economic considerations, but with the person's origin, 
education, or social status. 



2 . Development of Freedom of Contract — "Status 
Contracts" and "Purposive Contracts" — The 
Historical Origin of the Purposive Contracts 

i, "Freedom" in the legal sense means the possession of rights, 
actual and potential, which, however, in a markedess community natu- 
rally do not rest predommandy upon legal transactions but rather 
direcdy upon the prescriptive and prohibitory propositions of the law 
itself. Exchange, on the other hand, is, within the framework of a legal 
order, a "legal transaction," viz., the acquisition, the srinsfer, the re- 
linquishment, or the fulfillment of a legal claim. With every extension 
of the market, these legal transactions become more numerous and 
more complex. However, in no legal order is freedom of contract un- 
limited in the sense that the law would place its guaranty of coercion 
at the disposal of all and every agreement regardless of its terms. A legal 
order can indeed be characterized by the agreements which it does or 
does not enforce. In this respect a decisive influence is exercised by 
diverse interest groups, which varies in accordance with differences in 



« ] Forms of Creation of Rights 669 

the economic structure. In an increasingly expanding market, those who 
have market interests constitute the most important group. Their in- 
fluence predominates in determining which legal transactions the law 
should regulate by means of power-granting norms. 

That extensive contractual freedom which generally obtains today 
has, of course, not always existed; and even where freedom of contract 
did exist, it did not always prevail in the spheres in which it prevails 
today. Freedom of contract once existed indeed in spheres in which it is 
no longer prevalent or in which it is far less prevalent than it used to 
be. We shall survey the main stages of development in the following 
brief sketch. 

In contrast to the older law, the most essential feature of modern 
substantive law, especially private law, is the gready increased significance 
of legal iraf ■■:.,. -^ tons, particularly contracts, as a source of claims guar- 
anteed by le t ■;;.': coercion. So very characteristic is this feature of private 
law that C'-ae am a potion designate the contemporary type of society, 
to the extent that private law obtains, as a "contractual" one. 

, a. From the legal point of view, the juridicceconomic position of the 
individual, i.e,, the totality of his legitimately acquired rights and valid 
obligations, is determined on the one hand by inheritance based upon 
a legally recognized family relationship, and, on the other hand, by 
contracts concluded by him or for him in his name. The law of inherit- 
ance constitutes in contemporary society the most important survival of 
that mode of acquisition of legitimate rights which was once, especially 
in the economic sphere, the exclusive or almost exclusive one. In the 
case of inheritance the operative facts generally occur independendy 
of the interested individual's own conduct. These facts constitute the 
starting-point for his further legally relevant activities; a person's mem- 
bership in such a group as a given family is based upon natural relation- 
ship, which is socially and economically regarded as a special .and in- 
trinsic quality and is attributed to him by the law independendy of his 
own acts of consociation. 

Obviously the contrast is only relative, for claims of inheritance may 
also oe based on contract;* and in testate succession the legal basis of 
acquisition is not the membership in the kinship circle but rather the 
unilateral disposition of the testator. However, contracts to devise or 
bequeath are infrequent nowadays. The normal and, in many systems 
of law, for example, the Austrian, the only possible case is that of the 
marriage settlement.* Mostly such a setdement is made before marriage 
in order simultaneously to regulate succession upon death and marital 
property rights inter vivos. In other words, the contract regulates the 
property incidents of a family relationship about to be created. As re- 



670 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

gards wills, the great majority of them nowadays aim, in addition to 
munificence regarded as an obligation of decency, at the balancing of 
interests among family members in view of special economic needs 
created either by the peculiar nature of the assets of the estate or by 
peculiar circumstances of the persons concerned. Besides, at least out- 
side of the area of Anglo-Amerian law, freedom of testation is narrowly 
limited by the rights of certain near relatives to indefeasible portions.* . 
The significance of the wider freedom of testation in certain ancient and 
modern systems of law and the greater significance of contractual family 
agreements in the past, as well as the causes of their decline, are dis- 
cussed in another place. T At the present time, legal transactions with 
freely chosen content and freely concluded according to the free choice ' 
of the parties are of but limited importance in the sphere of family and 
inheritance law. 

b. In puhlic law the role of contractual transactions is, quantitatively 
at any rate, by no means slight. Every appointment of an official is made 
by contract and some important phenomena of constitutional govern- 
ment, especially the determinations of the budget, presuppose in sub- 
stance, if not formally, a free agreement among a number of independ- 
ent organs of the state, none of which can legally coerce the other. 
Yet, in the legal sense, the public official's legally fixed obligations are 
not regarded as flowing from a contract of appointment, as would 
happen in the case of a freely made contract of private law, but from 
his act of submission to the authority of the state as a public servant.* 
Similarly a freely arrived at agreement preceding the budget is not 
treated as a "contract"; nor is the agreement as such treated as a legally 
essential event. The reason is that, for good juristic reasons, "sover- 
eignty" is accepted as the essential attribute of the modern state, con- 
ceived as a "unity," while the acts of its organs are looked upon as 
instances of the exercise of public duties. Thus, in the sphere of public 
law the domain of free contract is essentially found in international law. 
This conception, however, has historically not always been the prevail- 
ing one and it would not accurately describe political organizations in 
the past. Formerly the position of a public official was less based upon a 
free contract than it is today; indeed, as we shall see, it rested rather 
upon his entire submission to the personal, quasi-familial, authority of 
a lord," But other political acts, for instance those intended to provide 
means for public purposes as well as many other administrative acts, 
were, under the conditions of the corporately organized political struc- 
ture, nothing but contracts between the prince and the estates, who, as 
the owners of their powers and prerogatives, constituted the political 
community. Legally, their joint acts were looked upon in precisely this 



it ] Forms of Creation of Rights 671 

manner. 10 The Feudal bond, too, was in its innermost essence based 
upon contract, and the expression "foetus" was applied with all serious- 
ness to such a collection of existing laws as the leges barbarorum, which 
at the present time we would call statutory codifications: 11 Real "innova- 
tions" in the law could at that time indeed by brought about only by 
freely made agreement between the official authorities and the whole com- 
munity assembled in die "thing." 

The last example we may give of the use of the contract concept is 
the primitive political associations which, at any rate as far as their legal 
form was concerned, were based on freely concluded agreements be- 
tween autonomous groups, such as, e.g., the "houses" of the Iroquois." 
The so-called "men's houses," too, were in the first place voluntary asso- 
ciations which were intended, however, to be of permanent duration, 
and differed in this respect from those earlier voluntary associations 
established for the purpose of adventure and entirely based upon free 
agreement. 1 * The phenomenon of free agreement also appears at quite 
primitive levels in the field of adjudication. Indeed, it marks its very be- 
ginnings. The arbitration agreement which developed out of the agree- 
ment for composition between kinship groups, i.e., the voluntary submis- 
sion to a verdict or an ordeal, is not only the source of all procedural law 
but also the point of departure to which even the eldest contracts of 
private law can, very broadly speaking, be traced. 14 Furthermore, most 
of the important technical advances of procedure have, at least formally, 
been products of voluntary agreement among the parties. Thus the inter- 
vention of the sovereign authorities, e.g., the Lord Chancellor or -praetor, 
took the very characteristic form of compelling the parties to make certain 
agreements designed to facilitate the progress of the cause. 16 They there- 
fore are but instances of the "comp'ilsory contract" (Rechtszwang zum 
Kontrakiereny, the cot* juisory feoffment, too, played a considerable role 
in the sphere of feudal, i.e., political, law. 

%. The "contract," in the sense of a voluntary agreement constitut- 
ing the legal foundation of claims and obligations, has thus been widely 
diffused even in the earliest ptriods a ■•<* stages of .legal history What is 
more, it can also be found in spheres of law in which the significance of 
voluntary agreement has either disappeared altogether or has greatly 
diminished, i.e., in public law, procedural law, family law, and the law 
of decedents' estates. On the other hand, however, the farther we go 
back in legal history, the less significant becomes contract as a device 
of economic acquisition in fields other than the law of the family and 
inheritance. The situation is vasdy different today. The present-day 
significance of contract is primarily the result of the high degree to 
which our economic system is market-oriented and of the role played 



672 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

by money. The increased importance of the private law contract in 
general is thus the legal reflex of the market orientation of our society. 
But contracts propagated by the market society are completely different 
from those contracts which in the spheres of public and family law once 
played a greater role than they do today. In accordance with this funda- 
mental transformation of the general character of the voluntary agree- 
ment we shall call the more primitive type "status contract" and that 
which is peculiar to the exchange or market economy "purposive con- 
tract" (Zwecfe-Kowtrafet). 

The distinction is based on the fact that all those primitive contracts 
by which political or other personal associations, permanent or tempo- 
rary, or family relations are created involve a change in what may be 
called the total legal situation (the -universal position) and the social 
status of the persons involved. To have this effect these contracts were 
originally either straightforward magical acts or at least acts having a 
magical significance. For a long time their symbolism retained traces 
of that character, and the majority of these contracts are "fraternization 
contracts." By means of such a contract a person was to become somebody's 
child, father, wife, brother, master, slave, kin, comrade-in-arms, pro- 
tector, client, follower, vassal, subject, friend, or, quite generally, com- 
rade (Genosse). To "fraternize" with another person did not, however, 
mean that a certain performance of the contract, contributing to the 
attainment of some specific object, was reciprocally guaranteed or ex- 
pected. Nor did it mean merely that the making of a promise to another 
would, as we might put it, have ushered in a new orientation in the 
relationship between the parties. The contract rather meant that the 
person would "become" something different in quality (or status) from 
the quality he possessed before. For unless a person voluntarily assumed 
that new quality, his future conduct in his new role could hardly be 
believed to be possible at all. Each party must thus make a new "soul" 
enter his body. At a rather late stage the symbolism required the mixing 
and imbibing of blood or spittle or the creation of a new soul by some 
animistic process or by some other magical rite. 1 * 

One whose thinking is embedded in magic cannot imagine any other 
than a magical guaranty for the parties to conform, in their total behav- 
ior, to the intention of the "fraternization" they contracted. But as the 
notion of the divinity gradually replaces animism, it is found necessary 
to place each party under the dominion of a supernatural power, which 
power constitutes not only their collective protection but also jointly 
and severally threatens them in case of antifratemal conduct. The oath, 
which originally appears as a person's conditional self-surrender to evil 
magical forces, subsequendy assumes the character of a conditional self- 



ii } _ Forms of Creation of Rights 673 

curse, calling for the divine wrath to strike. 17 Thus the oath remains 
even in later times one of the most universal forms of all fraternization 
pacts- But its use is not so limited. 

3, In contrast to the true magical forms of fraternization, the oath is 
also technically suited to serve as a guaranty for "purposive" contracts, 
i.e., contracts neither affecting the status of the parties nor giving rise 
to new qualities of comradeship but aiming solely, as, for instance, bar- 
ter, at some specific (especially economic) performance or result. This 
type of contract, however, does not appear in the most primitive society. 
In earliest times, barter, the archetype of all merely instrumental con- 
tracts, would seem to have been a general phenomenon among the com- 
rades of an economic or political community only in the noneconomic 
sphere, particularly as barter of women between exogamous sibs whose 
members seem to confront each other in the strange dual role of being 
partly comrades and partly strangers. In the state of exogamy barter ap- 
pears also as an act of fraternization; however much the women may be 
regarded as a mere object, there will rarely be missing the concurrent 
idea of a change of status to be brought about by magical means. 18 The 
peculiar duality in the relations between the exogamously cartelized 
sibs, created by the rise of regulated exogamy, may perhaps help to ex- 
plain a much discussed phenomenon, namely, the phenomenon that 
certain formalities were sometimes required for the marriage with 
secondary wives while the marriage with the chief wife might be entered 
into without any formalities. It may be that the latter remained formless 
because it was the original and pre-exogamous type of marriage, and 
barter in pre-exogamous times did not yet have anything to do with 
fraternization. It is more plausible, however, that fixed contractual for- 
malities were necessitated by the need for special arrangements regard- 
ing the economic security of the secondary wives who lacked the generally 
fixed economic status of the chief wife. 

. Economic barter was always confined to transactions with persons 
who were not members of one's own "house," especially with outsiders 
in the sense of non-kinsmen, non-"brothers"; in short, non-comrades. For 
precisely this reason barter also lacked in the form of "silent" trade any 
trace of magical formalism. Only gradually did it acquire religious pro- 
tection through the law of the market. Such protection, however, would 
not arise as a set of settled forms until a belief in gods had taken its 
place alongside those magical conceptions which had provided appropri- 
ate means of direct guaranty only for status contracts. 19 Occasionally it 
would'also happen that a barter transaction might be placed under the 
guaranty of the status-contract "through some special act of fraterniza- 
tion or some equivalent. This would not generally happen, however, 



674 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

unless land were involved. Normally, barter enjoyed practically no guar- 
anty, and the conception was nonexistent that barter could mean the 
assumption of an "obligation" which would not be the product of a 
natural or artificial all-inclusive fraternal relationship- As a result, barter 
at first took effect exclusively as a set of two simultaneous and reciprocal 
acts of immediate delivery of possession. Possession, however, is pro- 
tected by the claim for vengeance on, and expiation by, the thief. Thus, 
the kind of "legal protection" accorded to barter was not the protection 
of an obligation, but of possession. Where, at a later time, the obligation 
of warranty of tide came to develop at all, it was protected only in- 
direcdy in the form of an action for theft against the seller who lacked 
tide.* 

Formal legal construction of barter does not begin uflHI certain 
goods, especially metals, have acquired a monetary function, r.e., where 
sale has arisen. This development does not depend upon the existence 
of chartal or even state money," but, as shown especially in Roman 
law, on mere pensatory means of payment. The transactions per aes et 
libram constitute one of the two original forms of legal transaction in 
ancient Roman ius civile. Under Roman city law this form of cash 
purchase acquired an almost universal function for the most diverse 
classes of private legal transactions, regardless of whether they involved 
questions of family or inheritance law or of exchange proper. 22 The 
agreements of fraternization as well as other forms of status contract 
were oriented toward the total social status of the individual and his 
integration into an association comprehending his total personality. This 
form "of contract with its all-inclusive rights and duties and the special 
attitudinal qualities based thereon thus appears in contrast to the money 
contract, which, as a specific, quantitatively delimited, qualityless, ab- 
stract, and usually economically conditioned agreement, represents .'the 
archetype of the purposive contract. 23 As a non-ethical purposive contract 
the money contract was the appropriate means for the elimination of the 
magical and sacramental elements from legal transactions and for the 
secularization of the law. In Roman law, for example, the civil marriage 
form of coemfftio thus came to confront the sacred marriage form of 
canfarreatio?* The money contract was, it is true, not the only suitable 
means, but it was the most suitable. Indeed, as a specific cash transac- 
' tion it was of a rather conservative nature since, originally at least, it 
was completely devoid of any promissory elements oriented towards the 
future. For the effect of this transaction, too, was solely to provide secure 
possession as well as a guaranty that the goods were properly acquired*, 
however, at any rxite originally, the transaction did not constitute a guar- 
anty that the promises involved in it would be fulfilled. 



n ] Forms of Creation of Rights 675 

4. The concept of obligation 1 * through contract was entirely* alien to 
primitive law; it knew but one form of obligation and claim, viz;' that 
arising ex delicto. The amount of the claim of an injured party was 
rigorously fixed by the practice of composition and its attendant con- 
ventions. He wergtf i debt as set by the judge was the most ancient true 
debt and all other forms of obligation have derived from it. 1 * Conversely 
it can be said that only such actions were cognizable by the courts as 
arose from an obligation. As regards disputes between members of dif- 
ferent kinship groups, no formal procedure existed for the restitution of 
chattels or the surrender of immovables. Every complaint was necessarily 
based upon the argument that the defendant had personally done the 
plaintiff a personal wrong which would have to be expiated. Hence 
there was no place for an action ex contractu or for the recovery of a 
chattel or a piece of land or for actions to determine personal status. 

a. The problem of whether a person was properly a member of- a 
household, a kinship group, or a political association could, as an internal 
affair, be decided solely by the group itself. But things underwent a 
change in this very respect. It was the basic norm of every type of 
brotherhood or loyalty-bound relationship that a brother should neither 
summon into court, nor bear witness against, his brother, nor kinsman 
against kinsman, nor guild brother against guild brother, nor patron 
against client, and vice versa, in the same way as there was no possibility 
of blood vengeance in any of these relationships. Vengeance for felony 
amongst them was a matter for the spirits or gods, the priestly power 
of excommunication, the master of the household, or the lynching pro- 
cedures of the group. But when political association had come to consti- 
tute the military community, and when military duty and political rights 
had become intertwined with birth in legitimate wedlock, so that untree 
persons or those bom in inferior station were to have no military rights 
and thus no rights to share in booty, there had to be a legal procedure for 
the 'determination of a person's disputed status. 

The emergence of actions concerning land was closely connected 
with this situation. Power over certain areas of usable land became, as 
scarcity increased, an increasingly important element in the life of every 
corporate body, both political associations and house communities. The 
right of full membership in the group provided a claim to a share in 
the land and, conversely, only the landholder was a full member of the 
group. Disputes between the groups about land thus always meant that 
the victorious group would receive the disputed land. As the individual 
appropriation of the land developed, the role of plaintiff devolved from 
the group to the individual member who would sue another, both plain- 
tiff and defendant claiming the land by virtue of their right of member- 



676 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

ship. In any such dispute concerning membership right in land the sub- 
ject matter had of necessity to be found to belong to one party or the 
other, as it constituted the very basis of his entire political and social 
existence. Only one of the two could as a group member be legitimately 
entitled thereto, just as a person could only be a member or a non-mem- 
ber, a freeman or unfree. Especially in militarist associations, like the 
ancient -polls, the litigation about the fundus or kleros had to assume the 
form of a bilateral dispute. Instead of one party's being charged by an 
allegedly injured person as a wrongdoer, who would then have to 
seek to establish his innocence, each of the parties bad to claim to be 
in the right at the risk of being in default. Thus, where the dispute 
turned about a membership right as such, the pattern of the tort action 
was inapplicable. Nobody could steal a fundus, not just because of 
natural obstacles, but because one could not steal from a person his 
status as a member of the group. Hence, there developed for disputes 
about status or land, alongside the unilateral tort action, the bilateral 
action, such as the Hellenic diadikasia, or the Roman vindicatio with 
necessary cross-action of the defendant against the claim of the plaintiff. 27 
In this litigation involving status, which included the conflict over a 
group member's right to his share in the land, we have to find the root 
of the distinction between rights in rem and rights in -personam. This 
distinction was the product of a development and appeared only with 
the disintegration of the old personal groups, especially the decline of 
the strict dominion of the kinship group over property. One might locate, 
it approximately at the developmental stage of the Mark association 28 
and the "hide" system or a corresponding stage of property organiza- 
tion. Primitive legal thought was characterized not by the distinction 
between rights in rem and rights in personam but by two types of funda- 
mental facts. The first was that an individual would say: By virtue of 
having been bom or brought up in the house of X, by marriage, adop- 
tion, fraternization, military consociation, or initiation I am a member 
of the y group and am entided thereby to claim the use of the piece of 
property called Z. Or, secondly, one would say X, a member of Group 
V, has committed against me, A, or my fellow group member, B, a wrong 
of the type of C, and for this reason he and his comrades owe expiation 
to us, the fellow members of A. (In Arabic legal parlance one does not 
say: "the blood of A has been shed," but "our blood has been shed.") 
With the increasing individual appropriation of property the former 
configuration developed into die claim of a right m rem against everyone, 
especially actions of the type of the ht0$HaHs petiUo" 9 and the ret vin- 
dicatio. The latter fact-situation developed into the right myersonam 
against a particular person, viz., that one is held to be bound to perform 



ii ] Forms of Creation of Rights * 677 

a certain duty toward the obligee; and the duty exists only toward the 
obligee. The clarity of the original situation and the directness of the 
line of development are blurred by the dualism of legal relations within 
the kinship group and between different kinship groups. Among kin- 
ship members, we have seen, there could be neither vengeance nor 
litigation but only arbitration by the group elders; against those who 
resisted, only the sanction of boycott or ostracism could be applied. All 
the magical formalities of procedure were lacking; arbitration of disputes 
within the kinship group was an administrative matter. Legal procedure 
and law in the sense of claims guaranteed by judicial decision and the 
coercive power attached thereto existed only between those different 
kinship groups and their members who belonged to the same political 
community. 

When the kinship group disintegrated and gave place to a combina- 
tion of house communities, neighborhood bodies, and the political asso- 
ciation, the question arose as to how far the legal procedure of the 
political association would intrude into the relations among members 
of the same kinship group or even the same community. To the extent 
that this was the case, individual claims to land also became the object 
of litigation before the judge even between group members, at first, in 
the above-mentioned form of the bilateral vindication. On the other 
hand, the political power could assume patriarchal form, and the method 
of dispute setdement would then more or less generally become a case 
of "administration," a procedure formerly applicable only to internal 
disputes. Then this type could also influence the characteristics of the 
legal procedure of the political association. As a result, the clearcut 
classification of the old as well as the newer conception of the dis- 
tinction between the two categories of claims was blurred. The technical 
form of the distinction shall not concern us here, however. We shall 
rather return to the question of how the personal responsibility for de- 
licts produced the contractual obligation, and how the delictual fault 
as a cause of action gave rise to the obligation ex contractu. The connect- 
ing link consisted in the liability for composition as determined by, or 
acknowledged in, the legal procedure. 

b. One of the earliest type situations in which the acknowledgment 
of an obligation from a purposive contract had to become an economic 
need is the debt arising out of a loan. It is in this very situation, more- 
over, that we can perceive the gradualness of the process of emancipa- 
tion from the original stage of exclusive liability of the debtor's person. 
The loan originally was an interest-free form of emergency aid among 
brothers, as we have seen. Hence it could not be actionable, as no action 
at all would be admissible among brothers, i.e., between members of a 



678 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

kinship group or a guild, or as between patron and client, or within any 
other type of relationship of personal loyalty. A loan made to someone - 
outside the fraternal group, if it occurred at all, was in itself not legally 
subject to the prohibition of taking interest. But within the scheme of 
personal liability it was at first not actionable. As means of enforcement 
the disappointed creditor had only available to him magical procedures, 
sometimes of a rather grotesque character, remnants of which have sur- 
vived for long periods. In China the creditor would threaten suicide and 
sometimes even commit it in the expectation of pursuing his debtor after 
death. 30 In India the creditor would seat himself in front of the debtor's 
house and there either starve or hang himself; in this way he couId v 
compel his sib to revenge him against the debtor; and where the creditor 
was a Brahmin, the debtor, as the murderer of 3 Brahmin, would even 
become subject to the intervention of the judge. 31 In Rome, the improbitas 
of the XII Tables and the later infamia, incurred in cases of severe 
breaches of the fides, were probably survivals of the social boycott which 
had served as a substitute for the lacking actionability in case of disrespect 
for the rules of good faith and fair dealing. 

c. The development of a unified law of obligations was certainly de- 
rived from the action of tort. The delictual liability of the entire kinship 
group was, for instance, the source of the widespread joint liability of 
all kin or house community members for the performance of the con- 
tract made by one of them. 32 , However, the development of the various 
actionable contracts largely proceeded along its own ways. The entry of 
money into economic life often played the decisive role. Both primitive 
forms of contract in Roman ius civile, viz., nexutn, the debt contracted 
per aes et libram, and stipufatio, the debt contracted by symbolic 
pledge, 33 were money contracts. This fact, which is clear for the nexum, 
seems also to be certain for the stijnilatio. As to both, the connections 
with the precontractual stage are clear. They were rigorously formal 
oral transactions and they required that the necessary acts be performed 
by the parties themselves. Both have the same origin. As to the stipulatio 
we may agree with Mitteis 33 ' who, on the basis of analogies in Germanic 
law, regards it as having originated in procedure, outside of which it 
originally played only a very modest role, essentially in connection with 
agreements on such collateral terms as interest and similar matters. In 
addition to barter, the composition agreement, which formed the basis 
of the trial, also constituted a step on the way to the purposive con- 
tract in the sense that, being a contract among enemies rather than one 
of fraternization, it required a precise formulation of the issue arid, 
quite particularly, of the point or points to be proved. As the trial 
formalities became more and more fixed, increasingly numerous occasions 



« ] - Forms of Creation of Rights 679 

occurred for incidental transactions creating contractual obligations. 
The giving of security By one party to the other is one of the most im- 
portant of these transactions. In many legal systems the very procedure 
which was intended to eliminate self-help had to be initiated by some 
act of self-help. The plaintiff would drag the defendant into court and 
would not release him unless he received security that the defendant, 
if found guilty, would not evade the payment of the composition. Such 
self-help was always directed against the body of the adversary, as the 
action was based upon the allegation that a felony had been committed 
by the defendant against the plaintiff, for which the defendant had 
to answer with his person, rather than on a complaint that the de- 
fendant's conduct constituted an objective wrong. The security which 
the defendant had to give in order to remain unmolested until the time 
of judgment was provided through sureties or by way of pledge. 31 

It is thus in the course of procedure that these two legal institutions 
appear for the first time as compulsorily enforceable transactions. Later 
on, in the place of a third party surety, the defendant himself was al- 
lowed to warrant the fulfillment of the judgment. The legal view was 
that the defendant was his own surety, just as the oldest juridical form 
of the free labor contract was everywhere the sale of oneself into tem- 
porary slavery taking the place of the formerly normal sale by father 
or master. The most ancient contractual obligations consisted in the 
transposition of certain procedural arrangements into the common legal 
life. In Germanic law the giving of a pledge or a hostage was the most 
ancient means of contracting debts, not only economically but also as 
far as legal formalities are concerned. However, suretyship, from which 
the pledging of oneself was derived in both Roman and German law, 
was in the latter undoubtedly connected in legal thought with the soli- 
dary personal liability of the members of the kinship group and the 
house community. The second form of security for future obligation, 
i,e., the pledge, was both in Roman and in Germanic law 35 at first either 
taken as a distress or given to avoid the personal liability of being sued 
and taken in execution; hence it was not, as it is today, a security for a 
claim existing separately. The giving of the pledge rather constituted 
a transfer of possession of goods which, as long as the debt remained 
unpaid, were to be in the creditor's possession lawfully, while upon 
timely payment of the debt his possession was to become unlawful and 
thus to constitute a wrong towards the former debtor. It thus easily fitted 
in with the usual pattern of the most ancient causes of action, viz., actual 
injury to the person or to his possessions. The very widespread legal 
transaction of the conditional self-sale into slavery for debt also attached 
itself in part directly to the possible modes of execution and partly to 



6 8 O ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

the giving of a hostage, which, as we have seen, was also connected 
with procedure. The body of the debtor was to constitute the creditor's 
pledge and was to be forfeited into his lawful possession if the debt was 
not properly paid. Originally the liability for contracted debt, like lia- 
bility for vengeance and composition, from which it derived, was not a 
personal liability with one's assets but a liability of the debtor's physical 
body and of it alone. Originally there was no execution upon the 
debtor's assets at all. In the event of nonpayment, the creditor's only 
resort was execution upon the person, whom he could kill or imprison 
as a hostage or hold as a bond-servant or sell as a slave; where there 
were several creditors, they could, as the Twelve Tables show, cut him 
into pieces. 3 * The creditor could also establish himself in the home of 
the debtor, and the latter would have to serve and provide for him 
(Ef nfeger);" but this already marks the transition to liability of the 
debtor's assets. Yet, the transition proceeded but slowly, and liability of 
the person for nonpayment of debt disappeared in Rome only in the 
course of the status conflicts, 38 while in Germany it did not disappear until 
the nineteenth century. Je The most ancient purely obligatory contracts, 
i.e., nexum and stipuhtio, and, among the Germans, vadiatio™ obviously 
signified the voluntary submission to a [conditional liability of the person 
as security for the] delivery of goods promised for the future." 1 Im- 
mediate liability of the person was thus avoided. But if the promise 
remained unfulfilled, the only recourse possible was again that of resort- 
ing to the debtor's person. 

Originally all contracts were contracts relating to a change in the pos- 
session of goods. Hence, all those legal transactions which really repre- 
sented old forms of contractual liability, especially those particularly 
rigid and formal ones which were universally required for the creation 
of a money debt, were symbolically connected with the legal forms of 
transfer of possession." Some of these symbolic forms undoubtedly 
rested upon magical conceptions. Of permanent influence, however, was 
the fact that legal thought did not at first recognize as relevant any such 
intangible phenomena as simple promises but was interested only in 
wrong, i.e., a misdeed against the gods or a violation of life or limb or 
visible possession. A contract, to be legally relevant, had thus to contain 
a disposition over tangible goods, or had at least to be susceptible of such 
an interpretation. 43 If this was the case, it could, in the course of develop- 
ment, come to incorporate the most diverse contents. A transaction, on 
the other hand, which could not be formulated in this way could not 
become legally effective except as a transaction against cash or, at least, 
against- the deposit of a part payment which would preclude a change 
of mind on the part of the promisor. Thus arose the principle which is 
basic in many legal systems, namely, that only purposive contracts in- 



« ] Forms of Creation of Rights 6 8 i 

volving payments can be binding. This attitude was so effective that 
even at die end of the Middle Ages the English doctrine of "considera- 
tion" was derived from it: where a consideration, even though it be 
only a nominal one, was actually paid the contract could assume any 
content which was not legally frowned upon; it would be valid even 
where, without that fact, there would be no legal pigeonhole into which 
it would fit. The provision in the Twelve Tables on manci'patto, the 
meaning of which has been much disputed," probably constituted a 
more primitive method of sanctioning a kind of freedom of disposition; 
while its possibilities of development were more limited, the underlying 
formal concept was essentially similar. 

In addition to the patterns developed from the formalistic monetary 
transactions on the one hand, and procedural suretyship on the other, 
the law has evolved a third possibility for making purposive.contracte^ 
legally: enforceable: the artificial creation of new contractual actions out 
of actions ex delicto. This method was resorted to even in a legal system 
so highly developed technically as the English of the late Middle Ages. 
.The economic rationalization of the law favored the rise of the con- 
ception that the liability for composition was not so much, as it had 
been conceived originally, a buying off of vengeance but rather a com- 
pensation for the harm suffered. Thus nonperformance of a contract 
could now be characterized as a harm requiring compensation. Since the 
thirteenth century the lawyers and judges of the royal courts of England 
declared in an ever increasing number of contractual situations that non- 
performance constituted a "trespass" and thus provided legal protection, 
especially by means of the writ of assumpsit," just as in a technically 
quite different manner the praetorian practice of the Romans extended 
the sphere of legal protection first through the extensive application of 
delictual actions and then through the concept of dolus.* 8 



3. Institutions Auxiliary to Actionable Contract: Agency; 
Assignment; Negotiable Instruments 

Even after the creation of actionable contractual claims capable of 
assuming any content we are still far from that legal state or affairs 
which is required by advanced and completely commercial social inter- 
course. 

Every rational business organization needs the possibility of acquiring 
contractual rights and of assuming obligations through temporary or 
permanent agents. Advanced trade, moreover, needs not only the possi- 
bility trf transferring legal claims but also, and quite particularly, a 
methed W which transfers can be made legally secure and which elimi- 



6 8 2 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ CJl. VIII 

I nates the need of constantly testing the title of the transferor. The de- 

' ■ velopment of those legal institutions, indispensable (or a modern capi- 

talistic society, will be discussed elsewhere. 4 * In the present connection 
we shall do no more than briefly touch upon the developments of early 
j times. In contrast to Greek law, where direct representation was well 

i known in the creation of obligations, "agency" was almost impossible in 

; Roman law.** It seems that this legal situation, which was related to 
the formalism of the civil actions, made possible the use of slaves in those 
really capitalistic enterprises for which representation was widely ac- 
knowledged in practice. Again, as a result of the highly personal charac- 
ter of the debt-relationship, assignment of choses in action was unknown 
in both ancient Roman and Germanic law/ 9 At a rather late time Roman 
j law created a substitute by means of indirect representation and also 

! ultimately arrived at a law of assignment, the utility of which for busi- 

! ness transactions was impaired, however, by the substantive ethical 

tendencies of the later Imperial legislation. 50 As a matter of fact, up to 
the beginning of modern times, no strong practical demand existed for 
j the assignability of choses in action, except for those which were the 

J subject matter of regular trade or which direcdy served the purpose of 

\ transferring claims to third parties. To meet these needs commercializa- 

■ tion was achieved through instruments payable to the order of the payee 
; or to the bearer, which served for the transfer both of claims, especially 
I monetary claims, and of powers of disposition over commercial goods 

and membership rights in commercial enterprises. They had been utterly 

■ unknown in Roman law, and it is still uncertain whether, as Gold-, 
| schmidt believed, the Hellenistic, or, as Kohler thinks, the Babylonian^ 
| instruments which go back as far as Hammurabi and were payable to the 
| heart;; were really genuine negotiable instruments. SL At any rate, how- 

i ever, f'lity facilitated payment to and through third parties in a way 

■j which v;ns possible only indirecdy under official Roman law. True right- 

I creative instruments are completely unknown to Roman law, unless one 

I considers as such the contractus lateralis, i.e., the book entry by a 

\ - banker. 52 In Hellenistic and late Roman law the use of instruments in 

writing, which had been so highly developed in the Orient even in the 
most ancient times, was developed into the compulsory documentation 
of certain transactions and the use of certain quasi-negotiable instru- 
ments, perhaps through the state's insistence upon recordation, which at 
first had been meant essentially to serve fiscal purposes. 5 * In the Hellenic , 
and Hellenistic cities the technique of documentation was carried on, 
for the sake of publicity, by two officials who had been unknown to the 
Romans, viz., the courts' remembrancer and the notary.** The institution 
of the notary was taken over from the Eastern part of the Empire by 
the West. But in the Occident the late Roman practice of using instru- 



Forms oj Creation r*f .lights 



683 



merits in writing was not really p-'oinoft'd hdcre the seventh century and 
in connection with post-Roman practices, possibly through the strong 
influx of Oriental, especially Syrian, traders, Then, however, the instru- 
ment in writing, both as the instrument payable to the order of the payee 
and to the bearer, developed very rapidly, 5 " a fact which is surprising in 

■ a period whose intensity of commerce we have to visualize as extremely 
limited in comparison to classical Antiquity. As has been the case so 
often, the particular legal techniques adopted seem also in this connec- 
tion to have followed their own paths. Probably the decisive factor was 
that, after the disappearance of legal unity, developments were de- 
termined by the centers of commerce and their merely technically trained 
notaries and that the notariat constituted the only remaining bearer of 
the commercial traditions of Antiquity and thus was the only creative 
force. However, with respect to the very use of instruments, the develop- 
ment was favored also by the irrational modes of thought of Germanic 
law. In popular ideas the instrument appeared as a sort of fetish, by the 

"ftrmal delivery of which, at first made before witnesses, specific legal 
effects were produced, just as by other, originally quasi-magical symbols 
such as the throwing of the spear or the festuka of Germanic, or the cor- 
responding bukannu of Babylonian law/* Originally one did not deliver, 
as the symbol, the instrument with the writing upon it but the parch- 
ment without writing, and only afterwards was the record entered upon 
it. 37 But while in Italian law, owing to the concomitance of German 
legal symbolism and the practices of the notaries, the development of 
documentary evidence was greatly favored even in the early Middle 
Ages/ a it remained unknown for a long time in English law, where the 
decisive legally constitutive role was played bv the seal. 58 The develop- 
ment of the types of commercial paper characteristic of modern com- 
merce took place in the Middle Ages to a large extent, however, under 
Arabic influence, as a result of pardy administrative and partly com- 
mercial needs/ Ancient Roman commerce apparendy could and had 

• to get along without these technical devices, which today seem to us to 
be indispensable. 



4. Limitations of Freedom of Contract 

1. in gsneral. Today it is fundamentally established that any con- 
tent whatsoever of a contract, in so far as it is not excluded by limitations 
on the freedom of contract, creates law among the parties and that par- 
ticular forms are necessary only to the extent that they are prescribed 
for reasons of expediency, especially for the sake of the unambiguous 
demonstrability of rights, and thus of legal security. This stage was 



684 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

reached only quite late: in Rome, by means of the gradual interna- 
tionalization of the law and in modern times under the influence of the 
Civil Law doctrine and the needs of trade. Yet, despite this generally 
existing freedom of contract, modern legislation does not content itself 
with the general rule that parties to a contract may agree to whatever 
they please, provided they do not violate certain specially established re- 
strictions. Instead, it rather regulates various types of agreements by 
certain special rules of ius disfositivum, i.e., rules which are to be opera- 
tive only where the parties have not provided otherwise. 131 However, this 
phenomenon is, in general, due to considerations of mere expediency. 
As a rule, the parties do not think of really taking care of all the possibly 
relevant points, and it is also convenient to be able to stick to tried and 
well-known types. Without these, modem commercial intercourse would 
scarcely be possible. But the significance of the enabling norms and of 
freedom of contract are by no means exhausted in this respect. They 
can have an even more fundamental signifiance. ^ 

In certain situations the normative control through enabling rules 
necessarily extends beyond the task of the mere delimitation of the range 
of the parties' individual spheres of freedom. As a general rule, the per- 
mitted legal transactions include a power of the parties to the transaction 
to affect even third parties. In some sense and to some degree almost 
every legal transaction between two persons, inasmuch as it modifies the 
mode of the distribution of disposition over legally guaranteed powers 
of control, affects relations with an indeterminately large body of out- 
siders. This effect takes place in rriany different ways. To the extent that, * 
from a purely formalistic point of view, the agreement creates claims and 
obligations only between the immediate parties, no external effects at all 
seem to result, as in that case nothing appears legally guaranteed except 
the prospect that the promise will be fulfilled. Again, to the extent that 
the transaction only concerns legal transfer of possession from one hand 
to another, as is usually the case, the interest of third parties seems to be 
hardly affected. The goods remain as inaccessible to them as they were 
beforehand all they have to do is to recognize a new person as the pro- 
prietor. In truth, however, this lack of effect on third parties' interests 
is never more than relative. The interests of every creditor of a person 
contracting a debt are affected by the latter's increased liabilities, and 
the interests of the neighbors are affected by every sale of land, for 
instance, through the changes in its use which the new owner may, or 
may not, be economically able to introduce. These are empirically possi- 
ble repercussions of rights that are generally admitted and guaranteed by 
law. These repercussions are by no means always ignored by a legal 
system; for an illustration we may refer to the prohibition of the assign- 



»] 



Forms of Creation of Rights 



685 



ment of claims to "a more powerful creditor" as existed in late Roman 
law." ■ ' . 

There are, moreover, cases in which the interests of third parties can. 
t be affected in still another way through the utilization of freedom of 
contract. When, for example, someone sells himself into slavery, or a 
worn i through contracting marriage, submits to the marital power of 
her husband, or when a parcel of land is subjected to a family setde- 
ment (ftdei commhsum), or when a corporation is formed by a number 
of individuals, interests of third persons are thereby affected in a way 
which is qualitatively different from that in which they are affected in 
the cases stated earlier, although the actual degree of affectedness may 
be quantitatively lesser and its actual manner may gready vary from 
case to case. In the second group of cases there is created for the benefit 
of the contracting parties an entirely new special law which binds every 
diird person's claims and expectations to the extent to which legal 
validity and coercive guaranty are ascribed to the arrangements of the 
contracting parties. This situation is thus different from the former, since 
the rules of the new special law take the place of the hitherto prevail- 
ing genera] rules — e.g., on matters such as the validity of agreements, 
or a creditor's power to seize assets of property. The entirely new rules 
of a special law now apply not only to all new but often also to the 
already existing contracts of the person who has become a slave, a 
married woman, or an estate owner under a family entailment, and, in 
the case of the persons who have become stockholders of a corporation, a 
new special law applies to at least some of their contracts. The peculiar 
technique of juridical expression may frequently obscure the meaning of 
the situation and the way in which the interests of third parties are 
affected by.it. A corporation, for example, must legally possess a certain 
declared capital} which may be reduced, under certain precautions, by a 
dedsidn of a Stockholders' meeting. In practice this means that the 
persons who have combined to form a corporation are compelled by the 
law to declare a certain surplus of the common property in goods and 
claims over and above the "debts" to be permanendy available for 
creditors and members acquiring stock at a later date. When they com- 
pute the profits annually to be distributed, the managers and members of 
die corporation are bound to this declaration by the threat of criminal 
prosecution for the infringement of the rule which provides that no 
profits may be distributed unless the fund, which has been declared as 
"capital," remains covered by the value of tangible goods or claims com< 
puted under the rules of proper evaluation and accounting. Provided 
that certain precautions are observed, the members of the corporation 
are allowed, however, to withdraw their declaration and thus to reduce 



i : 



6 b 6 ECOMOMV AND LiW (soCiOLOOY OP LAW) [ Ck, Vlll 

the corresponding guaranty for die creditors and later stockholders. In 
other words, they may henceforth distribute profits despite the fact that 
the originally declared amount is not covered. Il is obvicw that the 
possibility of creating a corporation as it is provided by such enabling 
special rules of law affects the interests of third parties who are not at 
the moment members of the corporation,, viz., creditors and later pur- 
chasers of stock. The same is true of the significance for third parties of 
the limitations of contractual freedom which arise from a person's volun- 
tary entry into slavery, or of the creation of the mortgage in favor of the 
wife on all the assets of the husband as it arises under several legal 
systems, where, upon marriage, the wife becomes a mortgagee even with 
priority over older mortgages.*" It is clear that this mode of influencing 
the legal situation of third parties, which deviates from the otherwise 
valid legal rules, goes beyond those "repercussions" which can arise 
outside the circle of the immediate participants from almost any legal 
transaction. We shall not discuss here the various transitional stages by 
which these two classes of phenomena are connected with one another. 
In the sense in which we discuss it now, "freedom ot contract" means the 
power to participate effectively in such legal transactions as extend be- 
yond the immediate circle of the participants not only by indirect reper- 
cussions but by the creation of special law. Even where this power is 
subject to some restrictions protecting interests of third parties, it means 
more than the mere concession of a "right of freedom" in the sense of a 
simple empowerment to perform, or to abstain from the performance of, 
certain concrete acts. 

On the other hand, the law can refuse legal validity to agreements 
which do not appear ar all direcdy to affect the interests of outsiders, 
or which at least do not involve any sort of special law apart from the 
generally valid law, and which even seem to confer upon third parties 
advantages rather than harm. The reasons for such limitations of con- 
tractual freedom may be very diverse. Thus classical Roman law did not 
admit the creation of a corporation or resort to any other device which 
would amount to affecting the interests of third parties through the 
establishment of special law, it refused to admit that in the establish- 
ment of a partnership the general law could be modified through the 
creation of a special partnership fund or the assumption of joint and 
several liability by the partners. It also refused validity to the creation of 
permanent rent charges through rent purchase or emphyteusis even 
though they would affect third parties only indirecdy. The use of the 
last named institution was denied, at least to private persons, as the 
institution of the ager vectigalis was originally available only to the mu- 
nicipalities and only later became available to the owners of landed 



«] 



Forms of Creation of Rights 



687 



estates." Classical Roman law also did not know negotiable instruments 
and originally did not even allow the assignment of choses in action. 
Modem law not only prevents the creation of special law through a 
contract by which an individual would subject himself to a relationship 
of slavery but, like Roman law, also for a long time excluded the en- 
cumbering of landed property with perpetual rent charges; only quite 
recently and under stricdy limited conditions did the latter become per- 
missible in Germany" Modem law, furthermore, regards many agree- 
ments which were regarded as quite normal in Antiquity as violating 
good morals and thus invalid, even though they afreet third parties 
neither through the creation of special law nor by indirect repercussion. 
Excluded are, in particular, individual agreements as to sexual relations 
for which full freedom of contract existed in ancient Egypt,** since 
legitimate marriage is the only form today. The same observation obtains 
for other family arrangements, such as the major part of those agree- 
ments on paternal and domestic authority which were common in 
Antiquity." 

The reasons for these differences in the ways of limiting freedom of 
contract are of many different kinds. Certain empowerments may be 
lacking simply because the legal recognition of the particular commer- 
cial institutions was not felt at the time as a real need. This would 
probably explain the absence of negotiable instruments in ancient law, or, 
more exacdy, in the official law of the Roman empire; instruments of 
an at least externally similar sort were not altogether unknown in An- 
tiquity; they occur, for instance, as early as in Old Babylonian times.™ 
The same explanation may hold true of th-= absence of modem capi- 
talistic forms of association, for which -Antiquity had no parallels other 
than the various forms of state capitalist associations, as ancient capi- 
talism was essentially living off the state. But the absence of an economic 
need is by no means the only explanation of the lack of certain legal 
institutions in the past. Like the technological methods of industry, the 
rational patterns of legal technique to which the law is to give its 
guaranty must first be "invented" before they can serve an existing ec> 
nomic interest. Hence the specific type of techniques used in, a legal 
system or, in other words, its modes of thought are of far greater signifi- 
cance for the likelihood that a certain legal institution will be invented 
in its context than is ordinarily believed. 

Economic situations do not automatically give birth to new legal 
forms; they merely provide the opportunity for the actual spread of a 
legal technique if it is invented. Many of our specifically capitalistic 
legal institutions are of medieval rather than Roman origin, although 
Roman law was much more rationalized in a logical sense than medieval 



6 8 8 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

law. While this fact has certain economic reasons, it is also due to a 
variety of reasons deriving entirety from differences of legal technique. 
The modes of thought of western medieval law were in many respects 
"backward." Thus it was not logic but a sort of legal animism or magic 
when the instrument in writing was conceived as a tangible embodi- 
ment of "rights" rather than as a rational mode of proof- Not logical 
either was the customary practice, derived from legal particularism, of 
imposing upon all sorts of groups solidary responsibility towards outsiders 
for all their members; or the readiness to recognize separate funds in 
the most diverse spheres, 69 a phenomenon which, like the one mentioned 
just,before, is explicable only in the light of purely political conditions. 
These very elements of "backwardness" in the logical and governmental 
aspects of legal development enabled business to produce a far greater 
wealth of practically useful legal devices than had been available under 
the more logical and technically more highly rationalized Roman law. 
Quite generally one may observe that those special institutions which, 
like those of medieval commercial law, were particularly well suited for 
the emerging modern capitalism, could arise more easily in the context 
of a society which, for political reasons, produced a variety of bodies of 
law corresponding to the needs of different concrete interest groups. 
However, it was also important that the "scientific" treatment of law 
could not then exist, that is, that for a principle to have legal validity 
it had to be "construed" out of a system of given concepts, and that 
nothing outside such logical construction could juristically even be "con- 
ceived." Under certain circumstances, legal rationalism may indeed im- 
ply an impairment of creative ability, although this point should not be 
.so exaggerated as it has occasionally been done in recent times [see 
sec. viii]. Predominantly ethical or political interests and considerations 
are responsible for such other limitations on the freedom of contract as 
its exclusion or restriction in family matters, such as is characteristic of 
most modem legal systems, or the prohibition of contractual submission 
to slavery. 

2. CONTRACT AND THE ORIGIN OF MARRIAGE. 70 Freedom of contract 

in sexual affairs is not primitive. Those tribes which are most backward 
technologically and are least differentiated economically and socially 
live in de facto lifelong patriarchal polygamy. The disgustful rejec- 
tion of endogamy obviously began in the narrowest circle, within the. 
household community, in connection with the relative diminution of the 
sexual urge through common upbringing. The exchange of one's own 
sister for the sister of another is probably the oldest kind of sexual con- 
tract. From this then developed the barter of the woman by her kinship 
group 'in return for commodities and ultimately the normal form of 



«] 



Forms of Creation of Rights 



689 



marriage, namely, wife purchase/ 1 which both in India and in Rome 
continued to exist as the specifically plebeian form of marriage together 
with the aristocratic forms of marriage, i.e., abduction or sacramental 
ceremony." However, both marriage by abduction and by sacramental 
ceremony are products of the formation of certain social organizations. 
The former arose as a result of the formation of military consociations, 
which not only tore the young men from their families but also con- 
solidated the women and their children into maternal groups. In the 
men's house, abduction was the heroic way of obtaining a wife, but the 
men who lived in such a community might also purchase wives from 
outside. Combined with the custom of abduction, these practices led to 
the formation of cartels for the exchange of women and thus apparendy 
to the emergence of exogamy. It came to be regulated totemistically 
where animistic conceptions of a certain sort became established, espe- 
ially and originally among peoples whose phratries were also hunting 
groups and subsequently became magical cult-communities with sacra- 
mental rites. The less developed the phratries were, or the more they 
disintegrated, the more prominent became patriarchal marriage, espe- 
cially among the chiefs and honoratiores. In their case it easily resulted 
in polygyny with full control of the master of the household over its 
members, whom he could use at will for his own purposes; or, where 
the kinship groups remained strong, the chief could at least use them 
For barter, but he had to give a share of the yield to the members of 
the kin group. Limits to this use of the members of the household were 
first imposed upon the headman by the sib of his wife. A family of high 
status would not sell its daughters as beasts of burden or for unlimited 
exploitation; they would be given to outsiders only upon reassurances as 
to their personal status and as to a preferred status for their children 
vis-a-vis the children of other wives or female slaves. In consideration of 
such assurances, the daughter would be endowed, upon being given 
away, with a dowry. It was in these ways that there arose the notion of 
the legitimate principal wife and legitimate children, i.e., the legal char- 
acteristics of legitimate marriage. Dowry and agreement in writing con- 
cerning continuous support for the wife, her dower, the payment to be 
made to her upon abandonment, and the legal position of her children 
became the test by which full marriage was to be distinguished from 
all other sexual relationships. 

Simultaneously, however, the freedom of the sexual contract un- 
folded in many different forms and degrees. Service marriage (Diemt- 
ehe), 13 trial marriage, and temporary companionate marriage 74 can be 
found, and daughters of noble families in particular were anxious to 
avoid the subjection to the patriarchal power of the husband. Con- 



N 



690 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

currently there existed all the forms of prostitution, i.e., the rendering 
of sexual services for a tangible return as distinguished from the con- 
tinuous support specifically provided by marriage." Prostitution, both 
heterosexual and homosexual, is as old as the possibility of obtaining a 
return for it On the other hand, there has hardly ever existed any com- 
munity in which this way of earning a living would not have been re- 
garded as dishonorable. This discrimination was not so much created as 
fortified by the specifically ethical and political evaluation of formal 
marriage for the sake of the militarily and religiously important purpose 
of procreating legitimate children. Halfway between marriage and prosti- 
tution there was, especially among the nobility, the institution of con- 
cubinage, i.e., a permanent sexual relation with a maid servant, a co-wife, 
a hetaera, a haycaUre"' or some other kind of woman living outside of 
marriage or in "free" marriage of the common or the refined type. The 
status of the children of such a union was mostly left to the discretion 
of the father, limited only by the monopoly rights of the children of the 
principal wife. Greater restrictions were established, however, by those 
who wielded the monopoly of citizenship, the politico-economic privi- 
leges of citizenship being reserved to the sons of male and female 
citizens. This principle was observed with peculiar force by the democ- 
racies of Antiquity. Other limitations were imposed by prophetic reli- 
gion, for reasons previously discussed [ch. VI:xfv], In contrast to the 
freedom of the sexual contract of ancient Egypt, which had its cause in 
the absence of all political rights of the populace, the oldest Roman law 
disapproved as causae turpes of all sexual contracts except marriage and 
concubinage, which was recognized as a kind of marriage of lower legal 
status for certain special situations. 77 But the latter was finally proscribed in 
the Occident by the Lateran Council [1215/16] and the Reformation. 
The father's right of disposition over the children was seriously limited 
first by sacred law, then subjected to additional limitations, and finally 
abolished for military, political, and ethical reasons. • 

Today the chances of a return to freedom of sexual contract are 
more remote than ever. The great mass of women would be opposed to 
sexual competition for the males which, as we can conclude from the 
Egyptian sources, strongly increases the economic opportunities of the 
.women of superior sex appeal at the expense of the less attractive; it 
would also be opposed by all traditional ethical powers, especially the 
churches. Yet, while such absolute freedom seems impossible, a similar 
state of affairs may be produced within the framework of legitimate mar- 
riage by a system of easy or completely free divorce combined with a 
system whereby the position of the wife remains both free and secure 
with respect to property rights. Such relative freedom has obtained, in 



«] 



Forms of Creation of Rights 



69 1 



varying degrees, in late Roman, Islamic, Jewish, as well as modem 
American law; it also obtained, though only for a limited period, in 
those legislations of the eighteenth century which were influenced not 
only by the contract theory of the rationalist Natural Law but also by 
considerations of population policy/ 8 The results have varied gready. 
Only in Rome and in the United States has the legal freedom of divorce 
been actually accompanied, for a time, by a high divorce rate. 78 As once 
in Rome, both economic freedom and freedom of divorce are strongly 
desired by the women in the United States where their position in the 
home as well as in society has come to be secure. The majority of Italian 
women, on the other hand, who are strongly bound by tradition, have 
rejected freedom of divorce even in recent times, probably because they 
are afraid that female competition for the male would become more 
acute and certainly because they do not wish to jeopardize their eco- 
nomic security, especially in old age, just as an aging worker would be 
afraid of losing bis daily bread. Generally both men and women seem 
to favor a formally rigid or even indissoluble type of marriage where 
loose sexual behavior is regarded as permissible for the members of one's 
own sex; men may also be content with such kind of marriage where, 
because of weakness or opportunism, they are apt to condone a certain 
female license. But the decisive reason for the repudiation of freedom ' 
of divorce by bourgeois public opinion is the real or imagined danger to 
the children's educational chances, 'besides, authoritarian instincts on the 
part of the men have also played their part, especially where women 
nave become economically emancipated to such a degree that the men are 
concerned about their position in the family and their male vanity is 
thus aroused. There are, furthermore, the authoritarian interests of the 
political and bierocratic powers, strengthened by the idea which has be- 
come powerful through the very rationalization of life in the contractual 
society, that is to say, the idea that the formal integrity of the family if 
a source of certain vaguely specified irrational values or is the supporting 
supra-individual bond for needful and weak individuals. In the last gen- 
eration all these heterogenous motives have resulted in a backward move- 
ment away from freedom of divorce and in some respects even from 
economic freedom within marriage. 

3. prbedom of testation, i.e., freedom of economic and normally 
infra-familial disposition, has also met in modern times with restrictive 
tendencies. But we shall not try to trace here the formal course of legal 
history of testamentary disposition. Evidence of complete or almost com- 
plete substantive freedom of testation can be found only twice in history, 
viz., in Republican Rome and in England, i.e., among two peoples both 
of which were strongly expansive and governed by a stratum of land- 



691 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ 01. VJll 

owning honoratiores. Today its principal area of application is the 
United States, i.e., the area of optimal economic opportunities. In Rome 
freedom of testation increased with the policy of military expansion 
which offered to disinherited sons the prospect of material well-being 
in the conquered territories, while it was cut down through the practice 
of breaking "unnatural" wills taken over from Hellenic law as the age 
df colonization was coming to an end. 80 In English law freedom of testa-> 
tion aimed at the stabilization of the fortunes of the great families, which 
was also served by the very opposite institutions of feudal succession to 
real estate, primogeniture, and entailed estate Qidei comrmssum).^ In 
modern democratic legislations the restriction or elimination of freedom 
of testation by means of generous indefeasible shares, or the prevention 
of primogeniture in the French Code through compulsory physical par- 
tition has been and still is largely politically determined. In die case of 
Napoleon, the intention of destroying the old aristocracy by compulsory 
partition of their estates was accompanied by the desire to establish fiefs 
as bearers of the new aristocracy which he was trying to create; this 
latter institution was referred to in his famous assertion that the intro- 
duction of the Code would place in the hands of the government the 
distribution of social power" 

4. contractual constitution of slavery. The suppression of 
slavery* 3 by the prohibition of even a voluntary submission to formally 
slavelike relations was the product of the shift of the center of gravity 
of world economic rule into areas where several elements happened to 
coincide: slave labor was unprofitable because of high maintenance costs; 
the wage system with its threat of dismissal and unemployment had 
come to provide indirect coercion to work; and direct coercion was re- 
garded as less effective than indirect pressure to obtain work of high 
quality and to extort labor from the dependent strata without the great 
risks involved in large investments in slave labor. The religious commu- 
nities, especially Christianity, played a very slight role in the suppression 
of slavery in Antiquity, less, for example, than the Stoa; in the Middle 
Ages and in modem times, its role was somewhat greater but by no 
means decisive. In Antiquity, it was rather with die pacification of the 
foreign relations of the Empire, which left peaceful slave trade as the 
only major source of slave import for the West, that capitalistic slavery 
came to decline. The capitalistic slavery of the Southern United States 
was doomed once the supply of free land was exhausted and the cessa- 
tion of the importation of slaves had raised slave prices to monopolistic 
levels. Its elimination through the Civil War was' accelerated by the 
purely political and social antagonism of the democratic farmers and the 
Northern plutocratic bourgeoisie against the Southern planter _aristoc- 



«} 



Forms of Creation of Rights 



693 



racy. In Europe it was the purely economic evolution of the medieval 
organization of work and labor, especially the growth of the guild system, 
which resulted in keeping the crafts free of slave labor even though 
slavery never completely disappeared from southern Europe during the 
Middle Ages. As far as agriculture was concerned, more intensive pro- 
duction for export led even in modern times at 6rst to greater servitude 
in the status of the agricultural laborer; but unfree labor was finally 
found to be unprofitable with the emergence of modern techniques of 
production. However, for the final and complete elimination of personal 
servitude, strong ideological conceptions of natural law were ultimately 
decisive everywhere. The patriarchal slavery of the Near East, the an- 
cient seat of this institution which was much less intensively spread in 
East Asia and India, is on the verge of extinction as a result of the sup- 
pression of the African slave trade. Once its military significance, which 
was great in ancient Egypt as well as in the late Middle Ages, was 
rendered obsolete by the military technique of the mercenary armies, its 
economic significance, which had never been very great, also began to 
decline rapidly. As a matter of fact, in the Orient slavery never enjoyed 
a role corresponding to that played by the plantation slaver;' on the 
estates of Carthage and of late Republican Rome. In the Orient most of 
the slaves were domestic servants just as they had been in the Hellenic 
and Hellenistic regions. Some, on the other hand, constituted a sort of 
interest-bearing capital investment in industrial workers, as nad also been 
the case in Babylonia, Persia, or Athens. In the Near East, and still 
more in Central Africa, this patriarchal slavery approximated a free labor 
relationship more closely than the legal form would lead one to suppose. 
Yet, Snouck Hurgronje's observation in Mecca that a slave would not be 
bought in the market unless he approved of the personal qualities of 
the master, and that the master would resell the slave if the latter should 
turn out to be grossly dissatisfied with the former," seems to be the 
exception rather than the rule and to be brought about by the great de- 
pendence of the master on the good will especially of his domestic slaves. 
In Central Africa, even today, a slave who is dissatisfied with his master 
knows how to compel the master to give him, by way of noxae 
datio, B * to another master for whom he has a greater preference. 1 * But 
this, too, is certainly not universally true. Yet the nature of oriented theo- 
cratic or patrimonial authority and its inclination toward the ethical 
elaboration of the patriarchal side of all dependence relationships have 
created at least in the Near East a highly conventionalized security for 
the slave vis-a-vis his master, Consequendy, unrestrained exploitation in 
the manner of late Roman slavery is practically excluded. The begin- 
nings of this trend can be found already in ancient Jewish law, and the 



Tf 



694 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Cfc. Vlll 

decisive motivation for this conduct was provided by the very circum- 
stance that the ancient institutions of levying execution upon the debtor's 
person and of debt slavery entailed the probability of enslavement of 
one's fellow citizens. 

5. OTHER LIMITATIONS OP FREEDOM OF CONTRACT, Finally, the SO- 

cial and economic interests of the influential, especially "bourgeois," 
strata of society also constitute the cause of such limitations on the free- 
dom of contract as the prohibition to put feudal or other permanent 
encumbrances upon land for the benefit of private parties. Such transac- 
tions were excluded in the law of Republican Rome just as they were 
again prohibited in the Prussian Land Redemption Laws. 8 ' In both in- 
stances the operative factors were bourgeois class interests and the eco- 
nomic conceptions associated with them. Roman legislation, which dur- 
ing the Republic did not recognize the emphyteusis except as ager vec- 
tigalis on public lands, like the present de facto limitation in Germany of 
the creation of similar tenures in tands owned by the state or by state- 
approved colonization corporations, 88 was a product of the concern of 
the bourgeois landed interest for legal marketability of land and for the 
prevention of the development of seigneurial rights or similar obligations 
tied to the land. 



5. Extension of the Effect of a Contract heyond Its 
Parties — "Special Law" 

Just as in Roman law, so in the modern rationalized law that type 
of regimentation of freedom of contract which results from the combina- 
tion of all the factors just mentioned is generally achieved not by 
prohibiting the proscribed agreements but simply by the failure of the 
legal order to provide the particular type-contract or, in Rome, the par- 
ticular actio, and by so regulating the available type-contracts that their 
norms are incompatible with the disapproved types of agreement. On the 
other hand, the technical form in which the law provides the power in a 
legally valid way to engage in those transactions which, like the forma- 
tion of a business corporation, affect the interests of third parties, con- 
sists in the official establishment of certain standard terms which must 
be incorporated in every such arrangement by individual parties if it is 
to be legally effective not only between these parties but also against 
outsiders; for if there are no other reasons for denying its validity, the 
arrangement itself can have legal effects upon the participants, even 
if third parties are not bound by them. This modern technique of leav- 



«] 



Forms of Creation of Rights 



695 



ing it to the interested parties thus to create law not only for themselves 
* but also with operative effects as regards third parties gives those in- 
terested parties the advantages of a legal institution of special law, pro- 
vided they comply with thti substantive requirements as expressed in 
those terms which they have to incorporate in their arrangement. This 
modern type of special law differs from that type of special law which 
was allowed to develop in the past. The modern technique is a product 
of the unification and rationalization of the law; it is based on the official 
monopoly of law creation by, and the compulsion of membership in, the 
modem political organization. 

In the past, special law arose normally as "volitive law" (.gewillkiirtes 
Reckt), that is, from tradition, or as the agreed enactment of consen- 
sual status groups (JLinverstandnisgemeinschaften') or of rational as- 
sociations. It arose, in other words, in the form of autonomously 
created norms. The max'm that "particularistic law" (i.e., volitive 
law in the above sense) "breaks" (i.e., takes precedence over) the 
"law of the land" (i.e., the generally valid common law) was recog- 
nized almost universally, and it obtains even today in almost all legal 
systems outside the Occident, and in Europe, for example, to some extent 
for the Russian peasantry. But the state insisted almost everywhere, and 
usually with success, that the validity of these special laws, as well as 
the extent of their application, should be subject to its consent; and the 
state did this in just the same manner in which it also transformed the 
towns and cities into heteronomous organization*; endowed by the 
state with powers defined by it. In both dses, however, this was not 
the original state of affairs. For the body of laws by which a given lo- 
cality or a group were governed was largely the autonomously arrogated 
creation of mutually independent communities between which the con- 
tinuously necessitated adHwTnent was either achieved by mutual com- 
promise or by imposition through those political or ecclesiastical authori- 
ties which would happen at the given time to have preponderant 
power. With this observation we return to phenomena which have 
already been touched upon, in a different context, earlier in this section. 

Prior to die emergence and triumpn ?£ the purposive contract and 
of freedom of contract in the modem sense, and prior to the emergence 
of the modern state, evety consensual group oc rational association which 
represented a special legal osder and which therefore might properly 
be named a 'law community" (Rechtsgemeinschitft) was either con- 
stituted in its membership by such objective characteristics as birth, 
political, ethnic, or religious denomination, mode of life or occupation, 
or. arose through the process of explicit fraternization. The primitive 
situation, as we have seen above, was that any lawsuit that would 



696 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

correspond to our procedure could take place only in the form of com- 
position-proceedings between different groups (sibs) or members of dif- 
ferent groups. Within the group, i.e., among the members of the group, 
patriarchal arbitration prevailed. At the very origin of all legal history 
there thus prevailed, if viewed from the standpoint of the political 
power and its continuously growing strength, an important dualism, 
i.e., a dualism of the autonomously created law between groups, and 
the norms determinative of disputes among group members. At the 
same rime, however, another fact intruded into this apparendy simple 
situation: namely, that even at the earliest stages of development known 
to us the individual often belonged to several groups rather than to just 
one. But nevertheless, the subjection to the special law was initially a 
strictly personal quality, a "privilege" acquired by usurpation or grant, 
and thus a monopoly of its possessors who, by virtue of this fact, became 
"comrades in law" (Rechtsgenossen'). Hence, in those groups which 
were politically integrated by a common supreme authority, like the 
Persian empire, the Roman empire, the kingdom of the Franks, or 
the Islamic states, the body of laws to be applied by the judicial officers 
differed in accordance with the ethnic, religious, or political charac- 
teristics of the component groups, for instance, legally or politically 
autonomous cities or clans. Even in the Roman empire, Roman law 
was at first the law for Roman citizens only, and it did not entirely 
apply in the relations between citizens and nonc<rizen subjects. The 
non-Moslem subjects of the Islamic states and even the adherents of 
the four orthodox schools of Islamic law live in accordance with their 
own laws; but when the former resort to the Islamic judge rather than 
to their own authorities, he applies Islamic law, as he is not obliged to 
know any other, and as in the Islamic state the non-Moslems are mere 
"subjects." 

On the other hand, in the medieval Imperium, every man was entided 
everywhere to be judged by that tribal law by which he "professed" to 
live. 88 The individual carried bis professio mris with him wherever he 
went. Law was not a lex terrae, as the English law of the King's court 
became soon after the Norman Conquest, hut rather the privilege of the 
person as a member of a particular group. Yet this principle of "personal 
law" was no more consistently applied at that time than its opposite 
principle is today. 

Under any such systems it was inevitable that difficulties were to 
arise in conflicts between persons subject to different bodies of law, and 
with them the need for a certain measure of common legal principles, 
which increased rapidly with the growing intensity of intercourse. T^ere 
either emerges, then, as it did in Rome, a "ju<; gendum," which co- 



«] 



Forms of Creation of Rights 



697 



exists together with the "his civile" of each group; or, as occurred in 
England, the political or hierocratic ruler will by virtue of his imperium, 
impose upon his courts an "official law" which is to be the only binding 
one; or it may happen that a new political group, usually a local one, 
will fuse the substance of different legal rules into one new body of 
law. The oldest Italian city statutes were well aware that the citizens 
had "declared" that they were living under Lombard law, hut in a 
characteristic divergence from older legal notions, it was the civitas, the 
personification of the total body of the citizens, which was said to have 
accepted as its confessio iuris either the Lombard law or, as its supple- 
mentary source, the Roman law; or it, the civitas, may have adopted the 
Roman law, and the Lombard law as its secondary system. 80 However, 
all volitionally formed associations always strove for the application of 
the principle of personal law on behalf of the law created by them, but 
the extent to which they were successful in this respect varied greatly 
from case to case. At any rate, the result was the coexistence of numerous 
"law communities," the autonomous jurisdictions of which overlapped, 
the compulsory, political association being only one such autonomous 
jurisdiction in so far as it existed at all. By virtue of their membership, 
"comrades in law" could monopolize the control of certain tangible 
things or objects, for example, land of a certain type such as copyholds 
or fiefs; however, when these "law communities" ceased to be closed 
shops under the pressure of certain interests, and when these commu- 
nities increased so that any one individual member was simultaneously 
belonging to several groups, then the special law of any "law com- 
munity" became almost identified with the ownership of the particular 
object so that now, in the reverse sense, such ownership became the 
test for membership in the particular special law community. 81 This was 
also a step towards the situation which prevails today, namely that those 
relations which are subject to a special law are formally and generally 
accessible to any person. Nevertheless, it was only one step in the transi- 
tion to the modern situation. For all special law of the older type con- 
ferred enduring legal privileges either directly on certain persons be- 
longing to a group or on certain objects the possession of which provided 
this membership. In modem society special legal regulation may also 
be occasioned by the existence of certain purely technical or economic 
conditions such as ownership of a factory or a farm, or the exercise of 
the profession of attorney, pharmacist, craftsman of a certain kind, etc. 
Naturally every legal system has certain special norms that are bound 
up with technical and economic facts. But the special bodies of laws 
.which we are discussing at this point were of a different character. The 
applicability of this type of special law was founded not on economic 



6 9 8 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. Vlll 

or technical qualities but on status, i.e., qualities derived from birth, 
mode of life, or group membership ("nobleman," "knight," or "guild 
fellow") or certain social relationships with respect to material objects 
such as a copyhold or a manor. It has therefore always been the case 
that the applicability of a special law was conditional upon a particular 
quality of the person or upon his relationship to some material object.* 1 
In marginal cases, the "privilege" could even adhere to a single individ- 
ual or object and it did so in fact quite frequently. In that case, the 
right coincided with the law; the privileged individual could claim as 
his right that he be treated in accordance with the special law. But 
even where it was significant that one belonged to a group of special 
corporate status or that one stood in a special relationship to a group of 
objects, it was natural to regard the application of the special legal norms 
as the personal right of the interested parties. The idea of generally 
applicable norms was not, it is true, completely lacking, but it inevitably 
remained in an undeveloped state; all law appeared as the privilege of 
particular individuals or objects or of particular constellations of individ- 
uals or objects. Such a point of view had, of course, to be opposed by 
that in which the state appears as the all-embracing coercive institution. 
At times, especially during the' first period of the rising "bourgeois" strata 
in ancient Rome and in the modern world, the opposition was so strong 
that the very possibility of "privileges" was repudiated. The creation of 
privileges by vote of the popular assembly was regarded as impossible in 
Rome, 68 and the revolutionary period of the eighteenth century pro- 
duced a type of legislation which sought to extirpate every form of 
associational autonomy and legal particularism.** This end was never 
achieved completely, however and we shall soon see how modern law 
has created ;mew a great mass of legal particularisms. But it has done 
so upon a basis which differs in many important respects from that of 
the privileges of the older corporate status groups. 

The ever-increasing integration of all individuals and all fact-situa- 
tions into one compulsory institution which today, at least, rests in 
principle on formal "legal equality" has been achieved by two great ra- 
tionalizing forces, i.e., first, by the extension of the market economy and, 
second, by the bureaucratization of the- activities of the organs of the 
consensual groups. They replaced that piirticularist mode of creating law 
which was based upon the private power or the granted privileges of 
rnonopolistically closed organizations; that means, they reduced the au- 
tonomy of what were essentially organized status groups in two ways: 
The first is the formal, universally accessible, but closely regulated 
autonomy of voluntary associations which may be created by anyone 
wishing to do so; the other consists in the grant to everyone of the power 
to create law of his own by means of engaging in private legal- transac- 



n j 



Forms of Creation vf Eighu> 



69 n 



t?0'ns of certain k;r.ds. ITie decisive factors in this transformation of the 
technical forms of autonomous legislation were, politically, the power- 
needs of the rulers and officials of the state as it was growing in strength 
and, economically, the interests of those segments of society that were 
oriented towards power in the market, i.e., those persons who were 
economically privileged in the formally "free" competitive straggle of 
the market by virtue of their position as property owners — an instance 
of "class position." If, by virtue of the principle of formal legal eq jality, 
everyone "without respect of person" may establish a business corpora- 
tion or entail a landed estate, the yrovertied classes as stick obtain a sort 
of factual "autonomy," since they alone are able to utilize or take ad- 
1 vantage of these powers. 

However, this amorphous autonomy merits the designation of "auton- 
omy" only in a metaphorical sense; for, unless the word "autonomy" is 
to lack all precision, its definition presupposes the existence of a group 
of persons which, though membership may fluctuate, is determinable, and 
whose members are all, by consent or enactment, under a special law de- 
pending on them for its modification. The particular character of the 
group is irrelevant for the definition; it can be a club just as well as a 
business corporation, a municipality, an "estate," a guild, a" labor union, 
or a circle of vassals. The phenomenon itself always denotes the begin- 
ning of the state's legal supremacy. It always entails the idea that the 
state either tolerates or direcdy guarantees the creation of law by organs 
other than its own. Qualitatively, too, the autonomy enjoyed by a group 
through consensus or by enacted norms differs from mere freedom of 
contract. The line between the two coincides with the limits of the con- 
cept of "norm"; in other words, it lies where the order whose validity 
depends upon the consensus or the rational agreement of the participants 
is no longer conceived as the objectively valid rule imposed upon a group 
but as the establishment of reciprocal subjective claims, such as occurs, 
for instance, in the agreement of two business partners concerning the 
division of work and profits between them and their legal position 
within and outside the firm. The absence of a clear dividing line be- 
tween objective law and subjective right becomes apparent at this point. 
From the standpoint of our modes of thought, which have developed in 
regard to enacted law," 1 a distinction can be found, even theoretically, 
Only in the proposition thatyin'the sphere of private law, which alone 
concerns us here, autonomy is exercised where the enacted rule has its 
normal source in a resolution, while we have a special case of regulation 
by virtue of freedom of contract where the rule is supplied by an agree- 
ment between concrete individuals. This distinction was not insignificant 
in the past, but neither was it exclusively decisive. 

As long as the distinction between objective norm and subjective 



700 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Cfc. Vlll 

claim was but incompletely developed and as long as law was an at- 
tribute of a person determined by his membership in a group, one could 
speak of only two kinds of rules. The first were those which were valid 
in a group or organization because of the special status qualities of its 
members'; the others were valid and binding because one had created 
them for oneself by directly participating in a purposive contract. All 
special law was indeed originally the law of a group in which member- 
ship was determined by status qualities. But this state of affairs changed, 
as we have already indicated, with the increasing differentiation and 
economic scarcity of those goods which were monopolist cally appro- 
priated by the several groups. The changes were indeed so pronounced 
that in the end an almost opposite rule came to obtain: namely,- that 
special law was almost exclusively that which applied in a social or eco- 
nomic special relationship. To this conception certain approximations 
can already be found in the. Middle Ages. We agree with Heusler on 
this score, but he went too far when he completely denied the existence 
of all state law (Staatsrec JtO. BS But feudal law was indeed the law for 
the^relatton between lord ;md vassal and not the law of a "vassalic 
state" simply Jjecause such kind of state never existed. In the same sense 
manorial law was the law applicable to the relationships of manorial 
service; service law applied to service fiefs; the law merchant was the 
law for merchandise and mercantile transactions; and crafts law 87 is 
the law relating to the transactions and the establishments jai craftsmen. 
Yet, outside of these special relationships, the vassals, 'merchants, the 
copyholders, the ministeriales, and freemen were subject to the general 
law of the land. An individual could own freehold and copyhold lands 
at one and the same time; as regards the former, he was under the 
jurisdiction of the common law of the land, and as regards the latter, 
under the law of the manor. Likewise, a non-merchant who had lent 
money in a commenda or foenus nauticum was subject to commercial law 
in this, but only this, regard. However, this objective mode of treatment 
was by no means universal. Almost all those relationships to which a 
special law applied bad to some degree consequences implying corporate 
status, i.e., touching upon the total legal status of the person. This was 
the case with the possession of copyholds or other "unfree" lands. Many 
of them were regarded as mutually incompatible in one person and the 
tendency to break through such corporate-status restrictions was opposed 
time and again by the counter-tendency towards the closure of group 
membership. Which of the tjwo tendencies would be stronger was en- 
tirely determined by the concrete constellation of interests in each spe- 
cific instance. In Germany, as even Heusler acknowledges, borough law 
(jStadtrecht) was a corporate-status right of the citizens rather than a law 



H] 



Forms of Creation of Rights 



7 o r 



of tenure of urban land or other material relationship. 08 In England, 
however, the municipalities became almost entirely private corporations. 

In general it is correct to say that there prevailed the tendency of 
treating special law as law for certain objects and situations. As a result, 
the integration of the special laws into the common law of the land, the 
lex terrae, as substantive special rules was gready facilitated. The actual 
and final integration, however, depended predominantly on political con- 
ditions. Yet in those fields where this integration was not fully realized 
the problem of the relationship of the various special laws and their cor- 
responding special courts to the common law of the land and its courts 
was resolved in a great variety of ways. Under the common law of the 
land seisin in copyhold land (Gewere) was vested in the lord rather 
than the copyholder. But as to land held in fee die situation was not 
so simple; in the Mirror of Saxon Law, for instance, the problem of 
seisin was in dispute between the author and the. glossators.*" 1 

This particular problem has left traces in the Roman law, too. The 
Roman ius civile was the law of the Roman citizens insofar as a person 
who was neither a citizen nor an assimilated person by virtue of treaty 
could not appear as a party before a Roman court, engage in the specific 
transactions of the quiritarian law, 100 or be judged according to its rules. 
IN^o Roman lex had any validity outside the circle of the citizenry. Its 
inapplicability to non-citizens was politically of considerable importance 
because it established the sovereign power of the officials and the Senate 
over the entire subjugated area which was not incorporated into the law. 
But on the other hand, the Roman citizen was never judged exclusively 
by ius civile, and he was never exclusively subject to the courts of the 
it*s civile. The ius civile of historical times must rather be defined as 
• that special law which was relevant for a. person exclusively in his char- 
acter as ■ a citizen, i.e., as a member .of $hat particular status group. 
Simultaneously with it we find some law spheres which covered either 
both citizens and non-citizens, or only a part of the citizens, and the law 
of which presents itself as special law either of status groups or of objec- 
tive demarcation. In this context belong above all those numerous and 
important situations which were regulated by administrative law. Down 
to the time of the Gracchi, title by virtue of ius civile did not exist in 
any lands other than those which had been subjected to ius civile by 
express assignation. 1 " 1 Tenures in public lands (ager fublicus) were 
neither regulated by ius civile nor protected by actions of ius civile, as 
they were accessible to both citizens and non-citizens. When, in the 
period of the Gracchi, it looked as if the citizenry would subject these 
lands to regulation by lex, i.e., by enactment of ius civile, the allies im- 
mediately demanded that they be made citizens. These tenures were 



i! 



7 O 2. 



-,}KVi AND LAW (SOCIOLOGY OF LAV/) [i..h /'HI 



iln-s subject exclusive))- to the cognition of the magistrates, <-/r:o pro- 
reeded in finis respect according to rules different from those of the ius 
civile. The latter knew neither emphyteusis nor covenants running 
with the land nor copyholds. But all these institutions existed under the 
administrative law applicable to public lands. Furthermore, that law 
which applied in the relation between the public treasury and private 
individuals contained institutions which did not occur in the ius civile; 
even where the institutions of the former were the same as those of the 
latter, they were referred to by different names, as, for instance, praes 
and praedium, [rather than fide-iussor and hypotheca]. 102 This objectively 
defined special law was thus determined by the scope of the jurisdiction 
of the administrative official. There did not exist any body of particular 
persons membership in which would have been the test of participation; 
if one would like to speak of any group one could only say that its 
membership consisted of all those who at a given moment would happen 
to be concerned with some matter subject to administrative jurisdiction. 
Another sphere of special law was constituted by the jurisdiction of that 
praetor who was to decide disputes between citizens and aliens. He 
might resort to some rule of ius civile, but not by virtue of a "law" of 
the ius civile, a lex, but simply by virtue of his magisterial power. He 
rather applied the ius gentium, a law which was derived from a different 
source and the validity of which rested upon different foundations. Yet, 
this kind of law must not be visualized as having arisen with the very 
establishment of the office of the praetor peregrinus. It rather was that 
international law of commerce according to which the disputes of the 
market had been settled from time immemorial and which probably 
had at first been protected only sacrally by means of the oath. Nor 
were the substantially feudal relations between patron and client, 103 
which were of great practical importance in the early period, possible 
objects of litigation at ius civile. Just as in the Germanic law of seisin, 
the spheres of the ius civile and feudal law touched upon each other in 
the field of possession, viz., with respect to the praecarium [tenancy at 
will]; the ius civile took notice of the relationship also in other respects 
and dealt with it in criminal law. But it was not regulated by ius civile. 
Genuine spheres of special law within the ius civile were, on the other 
hand, formed by certain legal institutions accessible solely to merchants 
and certain persons engaged in industry, viz., the actio exercitorial* the 
idcepmm, ws and the special law of the argentarii [bankers]. 

A concept of great importance for future legal development, viz., 
that of fides, 11 "* was contained in both the general law of commerce 
and the law of patron and client. It included in a peculiar way not 
only the obligations following from relations of loyalty but also the 



H] 



Forms of Creation of Rights 



703 



fides bona, the good faith and fair dealing of the pure commercial trans- 
actions. To the ins civile as such it was unknown. Yet even though tech- 
nically unknown, there were elements of it in practice from the very 
beginning; for as regards certain fraudulent acts, the Twelve Tables 
already threatened with the status of tmprobus intestabilisque, 107 Nu- 
merous laws expressly decreed infamia, the general consequences of 
which were in private law exclusion from giving testimony, i.e., the 
incapacity to bear witness or to have one's actions witnessed, which in 
practice amounted to a commercial boycott. It led to a limitation of 
aquiring property by way of testate, succession; it involved, furthermore, 
the denegation of certain actions by the praetor. In spite of their in- 
formal character, the principles of fides were by no means the products 
of a vague sentimentalism either in the field of the law of patron and client 
or in that of commercial transactions. The entire series of sharply de- 
fined contrasts on which the Roman law of commerce so essentially 
rested was developed on the basis of the principles of fides. Such ancient 
institutions as the fidwcia 10 * as well as the fidei-commissum of the 
imperial epoch 109 depended entirely upon fides. The fact: that the fidei- 
commissum developed because legacies in favor of non-citizens and 
"prohibited persons" 110 were not actionable in the ius civile and guaraji 
teed only by convention does not prove that f.des was never more than 
a stopgap device for the ius civile and that it arose only at a compara 
lively late stage. The legal institution of clientele* is certainly as old as 
the legal conception of the ius civile itself, and yet it remained outside. 
Thus the coverage of ius civile was never coterminous with the "civil'" 
law. But fides was not a uniform principle for the regulation of legal 
relations. What one owed to another according to fides depended on the 
peculiar nature of the concrete relationship, and ^ven in this specializa- 
tion the fides did not, in the event of infringement, always produce the 
same legal consequences. Infamia was the coinequence of certain 
specific acts rather than of all infringements against fidei Of the various 
reactions against offensive conduct, e.g., cenioda reproof, or consular 
refusal to list one as a candidate for office, u.kK had its own particular 
preconditions, which were identical neither v v ku cases of infamia n-^r 
with the principle of fides, and which, moreover, fluctuated; they were 
never bound up with infringements of fidei purely and as such. In- 
fringements of the obligations of clientship were originally subject to 
the sanctions of the patron in the household court. Later these obliga- 
tions were guaranteed sacrally or conventionally and finally also by 
ius civile in the case of the purely commercial clientage of freedrnen. 

Of the original role of fides in commerce we have no knowledge. 
We do not know the means by which the bonae fidei contracts were 



704 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

guaranteed before they were 1 . .jgnized in the praetorian forms of action 
by virtue of the magistrate's authority like other institutions of the ius 
gentium. Probably there were individual or general arbitration agree- 
ments under oath, which, if broken, produced infamia in the same way 
in which in later times infamia was the sanction for the breach of a 
sworn contract of compromise. But the creation of the forms of action 
for the institutions of the ius gentium did not mean that its distinction 
from the ius civile became eliminated; the ius civile remained the pure 
corporate status group law of the citizens. Occasionally the ftaetor, 
through the formula si civis Romanus esset, [let him be treated "as if he 
were a Roman citizen"] made a civil form of action available to non- 
citizens. Other institutions were imperceptibly received into the i«s, 
gentium. It was only during the Empire that the distinction disappeared 
entirely, together with other privileges of citizenship. 

None of the groups of persons interested-i«-*be-^i*Jes -constituted a 
closed organization, although Mommsen incorrecdy, as we shall subse- 
quendy see, identified the clients with the organization of the plefcs. 1 " 
Certainly those persons whose interests were involved in hbnae fidei con- 
tracts or in ius gentium, which were quite indifferent with respect to 
personal status, did not form such an organization. The praetorian 
law as such was naturally quite far from being identical with the 
ius gentium, and the reception of the ius gentium was by no means 
brought about only by praetorian law; indeed it was to a great extent 
brought about by the integration of its fundamental principles into the 
ius civile through the jurists. Both during the Republic as well as during 
the Empire even the genuine status groups, i.e., the slaves, the freedmen, 
the knights, and the senatorial families, lacked any associational organ- 
ization which could have been the bearer of a genuine autonomy. For 
reasons of politics and police, the Republic had repeatedly found itself 
compelled to intervene sharply against private organizations. Periods of 
repression alternated with periods of toleration. The period of the 
monarchy was naturally unfavorable to private associations. The de- 
mocracy had reasons to be afraid of the associations of the socially and 
economically powerful; the monarchy had reasons to fear the political 
consequences of any sort of uncontrolled organization. The Roman law 
of both the Republican and the Imperial periods admitted, in effect, 
associational autonomy only as a law of voluntary associations (Vereine) 
or corporations in the modem sense. Autonomy existed to the very degree 
to which such associations and corporations were tolerated or privileged. 
Just to what extent they existed is to be^examined in connection with the 
general discussion of another problem? jwunely, that of the legal ferson- 
ality of organizations, 1 " 



U] - Forms of Creation of Rights 705 

6. Associatkmal Contracts — Juristic Personality 

The general transformation and mediatization of the legally autono- 
mous organizations of the age of personal law into the state's mono- 
poly of law creation; found its expression in the change of the forms in 
which such organizations were legally treated as the bearers of rights. 
Such treatment cannot be dispensed with when the autonomous organi- 
zations have become subject to a common body of law peacefully 
applied through an orderly system of adjudication within a compulsory 
political association, when there furthermore exist, on the one hand, 
monopolistically appropriated goods to be used solely by the members of 
the group (Jiechtgenossen) as such and by them only for some common 
purpose, and when also, on the other hand, legal transactions involving 
these objects have become economically necessary. Where, however, this 
development had not yet occurred, the problem was settled in a simple 
way: the members of one organization held all the members of another 
solidarily responsible for the acts of any one of its members, including 
its organs. Alongside the primitive blood feud we thus find the reprisal 
as a universal phenomenon, i.e., the reprisal in the sense of the deten- 
tion of the person or goods of a member of a group for the obligations 
of one or all of his fellows. 113 In the Middle Ages, negotiations about 
reprisals and their avoidance by reciprocal grant of access to the courts 
and mutual legal assistance were a constant object of discussion between 
the cities- Composition, too, is of the same primitive origin as the blood 
feud. The question of what person or persons could validly conclude a 
composition and represent the members of a group in dealing with 
outsiders was determined simply by the experiences of the* outsider with 
respect to whose orders are in fact obeyed. The original conception, even 
in early medieval law, still was that a member of the group who had 
not participated in a particular resolution of the village, the giild, the 
rural commune or other collectivity, could not be bound by it, that the 
organization's transactions with the outside had to be based upon £n 
agreement of the members as expressed in a general resolution in order 
to have any effect. One may thus agree with Heusler 11 * that the neces- 
sity of a resolution and its binding force were characteristic elements in 
the development of the law of organizations. But, obviously, the distinc- 
tion between resolution and contract remained as fluid as that between 
objective norms of law and subjective rights in general; normations ar- 
rived at through resolutions were often designated as pactus. But vir- 
tually the distinction was always present, quite particularly in the once 
universal idea that a resolution would not bind anyone except those 
persons who had participated in and associated themselves with it, and 



7 O 6 ECONOMY AND LAW (SOCIOLOGY OP LAW) [ Ch. VHl 

that it had consequently to be unanimous. In appearance, at least, the 
idea is implied that a resolution could come into effect only as a con- 
tract. Actually, however, that conception was rather influenced by the 
element of revelation implied in all law, according to which only one 
law could be right. Once the magical and charismatic means for the 
discovery of the right law had disappeared, there could and did arise the 
idea that the right law was the one acknowledged by the majority and 
that, therefore, the minority had the duty to associate itself with it. But 
before the minority did so, occasionally under drastic compulsion, the 
majority resolution was not law and no one was bound by it." 8 Such was 
the practical significance of that oudook. 

On the other hand, no one, of course, was considered to be obliged 1 
to conclude a contract with another. Hence, even under these modes of 
thought, including the conceptions of the earliest times, the distinction 
between enactment as the means of creating objective law and contract 
as the means of creating subjective rights was a familiar one, despite 
the great vagueness and fluidity of the transition between them. As its 
complement, the resolution required an organ for its execution. The 
mode of its selection, e.g., election from case to case or for a longer 
period or hereditary appropriation of the executive functions, etc., could 
assume many different forms. As the process of differentiation and ap- 
propriation among and within the various organizations advanced, as 
individuals came to be simultaneously members of several organizations, 
as in the internal relations among group members the relative degrees of 
power of officers and members came to be subject to fixed and increas- 
ingly rational rules, and as, finally, purposive contracts both of indi- 
viduals and between the organization as a whole and outsiders became 
more frequent in consequence of a growing exchange economy, an 
unambiguous determination of the significance of every action of every 
member and every official of an organization became necessary, and the 
question of the position of the organization and of the legitimation of 
its organs in both contractual transactions and in procedure had to arise 
in one way or another. 

The technical legal solution of this problem was found in the con- 
cept of the juristic person. From a legal standpoint the term is a tauto- 
logy, since the very concept of person is necessarily a juristic one. When 
a child en ventre de sa mete is regarded as a bearer of rights and obligations 
just as a full citizen while a slave is not, both these rules are technical 
means of achieving certain effects. In this sense the determination of 
legal personality is just as artificial as the legal definition of "thing" — 
i,e., it is decided exclusively in accordance with expedientially selected 
juristic criteria. However, the more numerous alternatives available for 



ii ] Forms of Creation of Rights 7 o 7 

the determination of the legal position of organizations and associations 
were then to create a special problem. 

The most rational actualization of the idea of the legal personality of 
organizations consists in the complete separation of the legal spheres of 
the members from the separately constituted legal sphere of the organ- 
ization; while certain persons designated according to rules are regarded 
from the legal point of view as alone authorized to assume obligations 
and acquire rights for the organization, the legal relations thus created 
do not at all affect the individual members and their property and are 
not regarded as their contracts, but all these relations are imputed to 
a separate and distinct body of assets. Similarly, what the members as 
such may claim from or owe to the organization under its rules, belongs 
to or affects their own private assets, which are legally entirely separate 
from those of the organization. An individual member as such can ac- 
quire neither a right nor a duty for the organization. Legally this is pos- 
sible only for the officers acting in the name of the organization, and 
only the assembly of qualified members called together and acting in 
accordance with fixed rules can, but need not, have the authority to 
make binding decisions. The concept of juristic personality can be ex- 
tended even further to contain the control over economic goods the 
benefit of which is to accrue to a plurality of persons who, while they 
are determined in accordance with rules, are not to be associationally 
organized. When thus established as an endowment™ a separate bearer 
of rights, to be determined in accordance with fixed rules, becomes 
recognized as legitimated to represent the interests of those individuals. 
Where a consociation of persons is to be endowed with juristic person- 
ality, it can thus be constructed in two possible ways. It can be organ- 
ized as a corporation. In that case the body of members is constituted 
as a fixed group of persons. The composition of that body can be 
changed in two ways, viz., either by succession to a position of mem- 
bership in accordance with the general rules of private law, or by vir- 
tue of a resolution of a designated corporate organ. The persons desig- 
nated in one of these two ways are the only ones who are entitled to 
any rights, and the administration is juristically carried on by virtue of 
their mandate. The other possible form in which a consociation of per- 
sons can be established as a juristic person is that of the institution 
(Anstalt), which is basically similar to the endowment. (When used 
as a juristic term of art, the concept of institution overlaps only in part 
with the one used in the field of social welfare.) The institution has no 
organized body of members but only an organ or organs by which it is 
represented. Membership is frequently based upon obligation, and the 
accession of new members is not dependent upon the will of the older 



7 O 8 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. VIII 

ones but rather upon objective criteria or upon the discretion of the 
organs of the institution. Furthermore, the "members!<Qf tr^ejnstitution, 
such as, for instance, the pupils at a school, have no mBuence upon its 
management. 117 

The three forms of organization— »-endowment, institution, and 
corporation — are not separated from each other by absolutely clear-cut 
legal tests. The transitions between them* are rather gradual and fluid. 
It can certainly not be a decisive test, as Gierke assumed, whether the 
organization is autocephalous or heterocephalous. 118 A church is an 
institution, although it can be autocephalous. 

From the technical legal point of view, the concept of juristic person- 
ality can be dispensed with where an organization has no property con- 
cerning which contracts in the name of the organization would h* 
necessary. Juristic personality is inappropriate for those societies which 
by their very nature comprehend only a narrowly limited number of 
partners and which are also limited in their duration, such as a certain 
business associations. For them the absolute separation of the legal 
spheres of the members from that of the collectivity would be injurious 
to credit since the specific credit-rating, while influenced by the exist- 
ence of a separate fund, is based primarily upon the fact that all the 
partners are to answer for the debts of the collectivity. Likewise the 
establishment of separate organs for the representation of the latter 
would not always be expedient. For such organizations and associations 
the form most adequate to capitalistic credit interests is the principle of 
"joined hands" (GesomthancL), 11 * which has been known, at least in an ' 
incipient state, to most legal systems of the past. It involved, first, that 
authority to represent the collectivity be vested in either all the partici- 
pants acting jointly, or in every one, or some, or one particular partici- 
pant acting in the name of all; the principle of joined hands involved, 
second, the liability of all with both their persons and their property. 
The configuration arose from the solidary responsibility of the house- 
hold community. It acquired its specific character when in a community 
of heirs the legal separation of the collective property from the indi- 
vidual property of the participants made it necessary that a distinction 
be made between collective and individual debts. 110 This process oc- 
curred in that course of disruption of fraternal relationships by com- 
mercial influences of which we have earlier spoken [ch. IV:2]. 

From the community of heirs the institution spread and became the 
basis of numerous defiberately constituted communities for which the 
in- and out-group relations arising from the fraternal character of the 
household community were either basic or adopted out of considerations 
of legal-technical convenience. 1 * 1 The present-day law of the partner- 



n ] _ Forms of Creation of Rights 7 ° 9 

ship is, as we have seen, a direct rational development of the relations of 
the household community For purposes of the capitalistic enterprise. 
The various forms of the "societe en nam commandite" 122 are combina- 
tions of this principle with the law of the commenda and the societas 
maris as they were found everywhere. The German "limited liability 
company"" 1 is a rational invention to serve as a substitute for the 
regular joint-stock corporation (Aktiengeselhchaft) which is legally in- 
adequate for the purpose of smaller family-like enterprises, especially 
among co-heirs, and particularly inconvenient because of the many pub- 
lications required by modern legislation. 

The fraternity (agermcmament in Spanish law) of merchants, ship 
owners, and seamen was, by the very nature of the matter, intrinsic to 
the joint enterprise of a sea voyage. Corresponding to the rise of the 
business firm from the household community, it developed in the field 
of shipping into an association of joint hands (.GesamthandvergeseU- 
sckaftung) of the enterprisers, whereas, on the other side, in bottomry 
and in the rules of general average it resulted in a single community of 
risk among all those interested in the voyage. In all those cases, the 
typical element was the replacement of a fraternal by a business rela- 
tionship, i.e., of a status contract by a purposive contract, saving, how- 
ever, the legally technically expedient treatment of the total group as a 
separate and distinct legal subject and as the separate owner of joint 
assets. On the other hand, the formal bureaucratization of the apparatus 
that would have become technically necessary in the case of a corpora- 
tion was avoided. In no other legal system were the rationally trans- 
formed relationships of joint bands developed so specifically as they 
were in that of the Occident of the Middle Ages and later. Their ab- 
sence from Roman law was due more to certain elements of legal tech- 
nique inherent to the nature of the national ius civile than to economic 
causes; we do not know details of the development of Hellenic com- 
mercial law, from which, especially its Rhodian species, certain special 
institutions of the commercial law of Antiquity were borrowed. The 
relative ease with which Roman Law could dispense with any develop- 
ment of such a rich variety of legal forms was connected with the 
peculiar character of ancient capitalism, which was both a slave capital- 
ism and a predominandy political capitalism based upon the state. Slaves 
were used as business instruments through whose contracts the master 
could acquire unrestricted rights but only limited liabilities. The treat- 
ment of die feculium in the fashion of a separate fund made it possible 
to obtain at least part of the results which today are brought about by 
the various forms of limited liability. 1 " Of course, the fact remains that 
this restriction, in connection with the complete exclusion of all forms 



7 I O EOCIMOIvY AND LAW (SOCIOLOGY OP LAW) [ Ch. VIII 

of jflfnt hand from the law of the societas and the requirement of all 
solidary claims and obligations being created by express spoitsio cor- 
irealis™ is one of the legal symptoms of that absence of stable capital- 
istic industrial enterprises with continuous credit needs which is 
characteristic of die Roman economic system. The significance of the 
essentially political basis of ancient capitalism is indicated by the fact 
that those very legal institutions which were lacking for private business 
were recognized already in the private law of the early Empire with 
respect to publicans (socti vectigaUum publicprum), 1 ™ i.e., groups of 
private businessmen to whom the state farmed out the levying of taxes 
and the exploitation of the state-owned mines and salt works. The legal 
and economic structure of these associations was similar to the syndicates 
as they .are customarily established today by banks cooperating in the 
issuance of bonds and other securities: one or more "leading" banks 
undertake toward the issuer the obligation of providing the full capital 
in question; other banks join the syndicate with internal liability for the 
fuU amount, while still others participate with only limited subscrip- 
tions. In Rome, the socii of the consortial leader (maticeps), as they are 
mentioned in the mterdictum de loco publico fntendo and in otber 
sources," 7 were members of the consortium, while the affines subscribed 

' only with limited liability in the manner of a modern commandittsta;™ 
both internally and externally the legal situation was thus quite similar 
to that of the modem phenomenon. 

Whether the institution of the state itself should be treated as a 
juristic person of private law, would depend in each case upon both 
legal-technical and political considerations. If it is done, it means in 

.practice primarily that the legal spheres of the organsof state authority 
are to be divided into a sphere of personal rights, with' claims and 
obligations ascribed to them as individuals, and an official sphere in 
which property relations are regarded as separate institutional assets; 
it means, furthermore, that the sphere of official activity of the organs 
of the state is divided into a sphere of public and one of private legal 
relations and that in the latter sphere, which is exclusively concerned 
with property matters, the general principles of the law of private 
transactions are applicable." 9 It is a normal consequence of the juristic 
personality of the state that it has capacity to sue and to be sued in 
ordinary civil procedure, and on an equal footing with private parties, 
and that claims may be freely prosecuted against it. From a stricdy legal 
point- of view, it is true that the juristic personality of the state has 
nothing to do with this latter question. The popuhts Romanus had, 
without any„ doubt,' the capacity to acquire private rights, for instance 
by way of testate succession, but it could not be sued. The two problems 



H ] Forms of Creation of Rights 7 1 1 

are also different from a practical point of view. There seems to be no 
doubt that all compulsory institutional, and thus political, state struc- 
tures have a juristic personality in the sense of being capable of acquir- 
ing rights, even where they avoid being subject to the ordinary process 
of law. Likewise the juristic personality of the state and its amenability 
to the process of law may be recognized while different principles may 
obtain for government and private contracts. But the latter phenomenon 
has usually been associated, as for instance in Rome, with the exclusion 
of the ordinary courts and the decision by administrative officials of 
disputes arising out of government contracts. The capacity to sue and 
to be sued has been recognized not only for juristic persons but also 
for numerous groupings of joint hands. Nonetheless, the problem of 
juristic personality has usually appeared in legal history in close associa- 
tion with the problem of the capacity of organizations, especially public 
ones, to sue and be sued. 

All the problems just discussed vrere bound to arise wherever the 
political authority could not deal with private persons as a master deals 
with his subjects but where it was compelled to obtain their services by 
free contracts. The problem had to be particularly acute where the 
political authority had to resort to transactions with capitalists whose 
credit or whose entrepreneurial organization it needed*, and where, in 
consequence of the free movement of capital among several competing 
organizations, it could not coerce these services liturgically. The prob- 
lems were finally bound to arise where the state had to deal with free 
craftsmen and workers, against whom it either could not, or did not 
wish to, apply liturgical coercion. The security of private interests was 
generally increased wherever the juristic personality of the state and the 
jurisdiction of the ordinary courts came to be recognized. But the denial 
of either one did not necessarily entail an impairment of this security, 
as the observance of the state's contractual obligations may be ade- 
quately guaranteed by other means. The fact that the king of Engl nd 
could always be sued in court did not protect the Florentine bankers 
against the repudiation of his enormous debt in the fourteenth century. 1 ** 
The lack of any means of procedural cwrcion against the Roman state 
treasury did not in general endanger its creditors, and when -such a 
danger nonetheless arose during the- Second Punic War, the creditors 
were able to obtain pledges for their loans which no one attempted to 
disturb. The French state has remained exempt from the compulsory 
jurisdiction of the courts even after the Revolution but without impair- 
ment of its credit. 1 * 1 To some extent the exemption of the public treas- 
ury from ordinary legal- process has been connected with that principle 
of setting apart the state from other organizations which developed 



7 I 2 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Cfe. VIII 

in connection with the modem concept of sovereignty. This was cer- 
tainly the case in France, and in Prussia too. Frederick William I, 
conscious of his sovereignty, tried by all sorts of chicanery to discourage 
his "obstinate nobles" from invoking the Imperial Chamber Court 
CReichskammergericht'). 1M The availability of the ordinary process of 
law was, on the other hand, beyond doubt wherever the corporate status 
structure of the political organization resulted in the treatment of all 
administrative grievances as disputes between the holders of privileges 
or vested rights and therefore as the subject matter of ordinary litiga- 
tion, in which the prince appeared not as sovereign but as the possessor 
of a limited prerogative or as one bearer of privileges among others in 
the political organization. This was the situation in England and in the 
Holy Roman (German) Empire. 

The denegation of actions against the state could, however, also he 
the result of essentially technical legal factors. Thus in Home the censor 
was the authority for deciding all claims of individuals against the state 
or vice versa which, according to our modes of thought, would be claims 
of private law. But the censor was also the authority for disputes be- 
tween private persons in so far as they turned on questions of law 
arising from relations touching state property. 13 ' All tenures in the 
ager ■publtcus and all disputes between the capitalist owners of inter- 
ests in the public lands and the state contractors (publicans), or be- 
tween them and the subjects, were thus withdrawn from the high juris- 
diction of the juries and referred to simple administrative cognition. 
This was in effect a positive rather than a negative privilege of the tre- 
mendously powerful state capitalists. The lack of jury trial and the 1 
dual quality of the magistrate as judge and party representative per- 
sisted and was transferred in effect to the fisc of the imperial adminis- 
tration when, since Claudius, following a brief fluctuation under Ti- 
berius, the fisc increasingly acquired the character of state property and 
ceased to be looked upon as the personal property of the emperor. !S * 
The distinction, it is true, was not complete and residues remained both 
terminologically (although such old terms of administrative law as 
manceps, or praes 13 * came gradually to be replaced by the terms of 
private law) and in the maxim that the fisc was capable of suing and 
being sued. Fluctuations between the patrimonial and the institutional 
conceptions of the imperial property, i.e., of the conceptions of it as 
belonging to the emperor personally or to the state as an institution, to- 
gether with considerations of administrative technique and the eco- 
nomic interests of the dynasty, also influenced the various transforma- 
tions of and differentiations between the several kinds of imperial assets 
which in theory were all Regarded as having a regular standing in court. 



» ] _ Forms of Creation of Rights 7 r 3 

Actually the distinction between the emperor as a private person and 
as a magistrate Cniler) was carried out only under the first emperors. 
Finally all the property of the emperor was regarded as property of the 
crown and hence it became customary for the emperor, when he acceded 
to the throne, to transfer his orivate fortune to his children. The treat- 
ment of acquisitions by way of confiscation and of the numerous legacies 
which were left to the emperor as a means of reinforcing the validity of 
testaments, was not clearly elaborated from the standpoint of either 
private or constitutional law. 

Within the structure of Medieval estate corporatism, which we shall 
discuss later, it was out of the question that the prince as a ruler 
would be differentiated from the prince as a private individual or that 
those of his assets which served political ends would be differentiated 
from those which were to serve his private ends. As we have seen, this 
lack of differentiation resulted in the acknowledgment of the possibility 
of suing the British king, or the German emperor. Quite the opposite 
effect occurred, however, when the claims to sovereignty led to the 
withdrawal of the state from the jurisdiction of its own organs, although 
in this connection, too, legal technicalities were used for rather effective 
resistance to the political aspirations of the princes. The Roman concept 
of the fisc, which was received in Germany, was used there to serve as 
the instrument of legal technique which made it possible to sue the 
state. Consequently, and as a result of the traditional corporate estate 
concept of the state, it also had to serve as a first basis for a genuine 
administrative justice far beyond the scope of private law disputes. The 
concept of the fisc should have produced the concept of the state as an 
institution already in Antiquity. However, this conceptual step was never 
taken by the classical jurists because it would have been alien to the 
existing categories of ancient private law. Not even the "Auflage," as 
it is understood in modern law, was developed so that it could have 
served as a substitute," 8 

Likewise the concept of endowment thus remained entirely alien to 
Roman law. The only way available was that of establishing a 'corpora- 
tive fund, the actual use of which is demonstrated by inscriptions. The 
true concept of endowment both in its substantive and technical aspects 
was almost everywhere developed under religious influences. The great 
mass of endowments have been dedicated from times immemorial to the 
cult of the dead or to works of religiously meritorious charity. The main 
interest in the definition of the legal status of such endowments was 
thus found among those priests to whom the supervision of the endow- 
ments' activities was entrusted. Hence a "law of endowments" arose 
only where the priesthood was sufficiently independent of the lay au- 



7 I 4 ECONOMY AND LAW (sOCIOLOClf OS LAW) [ Ch. VIII 

thority to develop a special body of sacred law. In Egypt, for this reason, 
endowments have existed from times immemorial." 7 Purely secular en- 
dowments, and particularly family endowments, however, were practi- 
cally unknown everywhere, not only because of technical legal reasons 
but, without doubt, also for political reasons, unless they used the form 
of feoffment or similar forms and thus created a dependence of the privi- 
leged families on the prince. In the polis they were thus completely ab- 
sent A change occurred for the first time in Byzantine law, where sacral 
norms were used as a technical means, after late Roman law had already 
made the first Bruited steps in this direction by means of the fwfei com- 
missum. For reasons which we shall discuss later, in Byzantium the 
creation of perpetual rents took the form of monastic foundations in 
which the management and rights to revenue were reserved for the 
family of the founder. The next phase in the development of this type 
of endowment was the wakf of Islamic law, which has played there a 
role of immense importance economically as well as in other respects. 
In the West, the saiqt was at first treated, from the legal-technical view- 
point, as the owner of the endowment fund. 1 * 1 The concept of the secu- 
lar endowment of the Middle Ages began to develop once the canon law 
had prepared it for ecclesiastical purposes. 18 * 

- The concept of the institution (Anstalt) was not fully developed in 
the purely legal sense until the period of modern theory. In substance it, 
too, is of ecclesiastical origin, derived from late Roman ecclesiastical 
law. The concept of institution was bound to arise there in some manner 
as soon as both the charismatic conception of the bearer of religious 
authority and the purely voluntary organization of the congregation had 
finally yielded to the official bureaucracy of the bishops and the latter 
had begun to seek for a legal-technical legitimation for the exercise of 
the ecclesiastical rights of property. 

No concept of ecclesiastical institution at all had existed in Antiquity. 
Ever since the secularization of the cult by the polis, the temple assets 
were legally regarded as its, the polis', property. Ancient legal technique 
aided the Christian church by means of its corporative concept; the early 
Middle Ages, in so far as church funds were not regarded as the prop- 
erty of the private owner of the church, resorted to the idea of the 
saint's being the owner and the church's officers his agents. Afttr the 
declaration of war on the private ownership of churches in the Investi- 
ture Conflict,"* canon law elaborated a peculiar ecclesiastical corpora- 
tion law, which, in consequence of the authoritarian and institutional 
elements of Church structure, had to differ from the corporation law of 
both voluntary associations and corporate status organizations. 141 But 
this very ecclesiasa'cal corporation law, in turn, markedly influenced 



» ] ^ Forms of Creation of Rights 7 1 5 

the development of the secular corporation concept of the Middle 
Ages. It was the essentially technical needs of administration in the 
modem institutionalized state which led to the establishment as separatee- 
juristic persons of innumerable public enterprises such as schools, poor- 
houses, state banks, insurance funds, savings banks, etc.; having neither 
members nor membership rights but only heteronomous and hetero- 
cephalous organs, they could not be construed as corporations, and thus 
there was developed for them the legal concept of the "institution." 

The rational concept of the corf oration in the more developed form 
of Roman law was a product of the Imperial period, quite particularly 
of the law of municipal corporations.** 1 Municipalities distinct from 
the state appeared in large numbers only after the Latin War, when 
hitherto sovereign cities were received into the community of Roman 
citizens, without impairment, however/ of autonomy. In a definitive 
way these relations were regulated by laws of the first emperors. In 
consequence of their mediatization the municipalities were deprived of 
their status as political institutions; civitates privatorwn loco kabentur 
["Cities are deemed to he private persons"] was said already in the sec- 
ond century and Mitteis properly points out that the adjective commune 
began at that time to replace publicum with reference to municipal 
property."" Of their litigations, some were treated as administrative, e.g., 
the controversta de territorio, and others as private, especially those aris- 
ing out of contracts, for which ordinary civil procedure was apparendy 
available. The typical form of the municipal officialdom spread over the 
Empire; indeed, the titles of municipal magistrates appear also in the 
private corporations of the Imperial period. This is probably the origin 
of the bureaucratization of the concept of the corporation according to 
the pattern of the once political institution of the municipality, for 
which the absolute separation of the municipal property from that of the 
individuals was as self-evident as the maxim: quod universitati debetur 
singulis non debetur ["That which is owed to die collective is not owed 
to its members." — Ulpian in D. 3.4.7.1.]. At the same time, the estab- 
lishment of voluntary associations in the Julian monarchy was condi- 
tional upon a license, undoubtedly for political reasons. Whether at that 
time the license conferred, as it did in the later period, full, or only 
partial, juristic personality, i$ doubtful. It is probable, although/not cer- 
tain, that the expression C^tfus collegii habere referred to full legal 
capacity. The term typically used in later theory was universitas. 1 * 4 If 
it is correct, as Mittefa plausibly asserts, that the internal relations of 
private corporations weje subject only to administrative cognition,*** 
it would well fit in with that bureaucratization of the corporations which 
runs through the entire, law of the imperial period, and it would at the 



7 I 6 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

same time constitute one of those secularizing adaptations of the pre- 
viously prevailing situation which are characteristic of this entire de- 
velopment. In the Republican period the situation was obviously differ- 
ent. While it is not certain if is also not improbable that the Twelve 
Tables, just like the laws or" Solon, recognized the autonomy of exist- 
ing corporations. A common purse was, as shown by later prohibitive 
laws, a matter of course. On the other hand, there was no legal technical 
possibility of a civil action. It is not even certain that it was available 
in the Edict before the Imperial period. There was no form of action 
for disputes between members concerning membership rights. The rea- 
son apparently lay in the fact that the private corporations were at that 
time subject in part to sacral law and in part to administrative law, 
priestly or magisterial cognition; this fact, in turn, was related to the 
status structure of the ancient polls, which tolerated slaves and metics in 
the collegia [voluntary associations] but not in the political body of the 
citizenry. 

Like the Hellenic phratries, 1 " the voluntary organizations of the 
earlier period, and most other permanent associations of all legal systems 
as far back as the totemic clans, the oldest known Roman voluntary 
associations were fraternities Qsodahda, sodalitatesy" and, as such, cult- 
communities. One brother could no more summon another brother into 
court than he could summon anyone else to whom he was bound by ties 
of loyalty. Traces of this state of affairs are retained even in the law of 
the Pandects, where criminal actions are prohibited between such breth- 
ren. In private law, these fraternal relations were significant primarily in " 
their negative consequences, i.e., as situations excluding actionability. 1 ** 
For the same reasons, the guilds and trade associations, the existence of 
which in early Republican Rome is definitely established, were consti- 
tuted as collegia cultorum. 1 * 9 Like the Chinese and medieval organiza- 
tions of the kind, they were fraternities under the protection of their spe- 
cial patron god, who was then acknowledged as legitimate in Rome by 
the recognition of the collegium by the state; thus it was, for instance, 
with Mercury and the collegium mercatorum, which tradition marks as 
having been very old. 1 * The obligation of mutual aid in emergencies 
and the cult meals, which are as characteristic of them as of the_ Gef\ 
manic guilds or all other organizations based on fraternity, were later 
transformed into rationally organized assistance and burial funds. Quite 
a few of these collegia are known to have been organized during the 
Empire as funds of this kind." 1 They had nothing to do with the law of 
the citizens. As long as the sacral organization was more than a mere 
form, its property was probably protected sacrally; disputes among mem- 
bers were settled by arbitration and conflicts with outsiders ^probably 



» ] Forms of Creation of Rights 7 1 7 

by cognition of the magistrate. The magistrate's right of interference was 
obvious as to those occupational organizations which were important 
for state liturgies (jmmerd). This fact explains the easy transition to 
the bureaucratization of the Imperial period. It is also probable that the 
relationships of those agricultural organizations, the persistence of which 
may only be surmised from our sources, remained outside of the regular 
jury procedure. The ager compascmts was a rudimentary commons, and 
the arbitria, which are mentioned by the agricultural writers,"* were the 
residue of a state-iregulated but nonetheless autonomous arbitration of 
disputes among neighbors. Once the municifium had arisen as a type 
that was to be increasingly influential for" the entire law of corporations, 
the law applicable to those corporations which were still permitted grew 
increasingly uniform during the Imperial period. The remnants of the 
rights of sodality membership, as far as one could find them at all, 
disappeared; they remained possible only outside the area of Roman 
imperial law, e.g., in the craftsmen's phylae of Hellenistic small towns." 3 
The latter are not mentioned, it is true, in the Imperial Law. This omis- 
sion does not prove, however, that there had not existed certain forms 
of organizations which it did not pretend to regulate. To draw such a 
conclusion would be as unjustified as it would be to conclude from the 
absence in the ancient ins civile of any regulation of emphyteusis or 
other tenures that they actually did not exist in lands other than those 
which made up the ager Oftimo iure -privatus and which were thus the 
only ones to be listed in the census rolls. 

Medieval continental law stood under the threefold influence of the 
Germanic forms of sodality, the Canon Law, and Roman Law as re- 
ceived in legal practice. The Germanic forms of sodality were redis- 
covered by Gierke and are described in all their richness and develop- 
ment in his magnificent work, but we shall not deal with their details, 
which belong into the context of agrarian history and the history of the 
enterprise. In the present context a few remarks must suffice to explain 
those formal principles of treatment with which we are exclusively con- 
cerned here. We find there a continuous series of structures ranging 
from the simple relationships of joint hands to the purely political com- 
munity, and that meant in the Middle Ages, the municipality. From 
the point of view of legal technology they all have in common the 
capacities to sue and to be sued and to own property; the relationships 
between the entity and. the individuals were worked out, however, in 
the most manifold ways conceivable. The individual might be denied 
any share in the common fund or he might be regarded as the private 
owner of a share as his free property, transferable, perhaps, by some 
form of commercial paper, but representing a share in the total fund 



7 I 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cfe. VIII 

rather than in any one of its particular assets; or, on the very contrary, 
every member might be regarded as owner of a share in every particular 
asset. To an ever varying extent the rights of the individuals might be 
limited and determined as to their content by the community or, on the 
contrary, disposition by the community might be limited by the rights 
of the individuals. In varying ways, too, the community could externally 
be represented and internally managed by one of its officers or a particu- 
lar member as such or, perhaps to a certain extent at least, by all mem- 
bers. Contributions might have to be made by the members in kind or 
through personal services. Membership might be open or closed so that 
it could be acquired only through a resolution of the members. The 
administration approximated, in varying degrees, those forms which were 
found in the political organizations, often to such an extent that the co- 
ercive powers within the organization or toward outsiders were distinguish- 
able from the coercive power of the political organization only by the 
nature of the coercive means or by its heteronomy as to the political 
organization. On the other hand, the collectivity was also treated as the 
bearer of personal rights and obligations. Like any private person it 
could have the right to a name, rights of status (Standesrechte), or the 
monopoly of the exclusive use of certain inventions; it could be held 
liable for certain unlawful acts, especially certain acts and omissions of 
its agents. The latter situation was so far from being exceptional that 
there were entire epochs, especially in England, when collective per- 
sonalities were regarded as the bearers of certain duties and in the event 
of failure of performance were regarded as the debtor of the fine im- 
posed by the king. 15 * The collectivities could assume almost every one 
of the forms which we shall encounter in the course of our examina- 
tion of political organizations: e.g., direct administration or representa- 
tive management in the name of the participants, resting on either 
equality or inequality, with office holders selected by rotation or election; 
or management could be a lord's right, possibly limited by norms or tra- 
dition but otherwise autocratic, pertaining either to a single individual 
or to a firmly delimited group of persons, and acquired through periodic 
election or some other type of appointment or through inheritance or 
through other acquisition as a transferable right, title to which could be 
connected with that to some piece of property. The position of the 
organs of the collectivity could tend toward constituting a prerogative 
composed of clearly defined rights, i.e., a bundle of concrete but strictly 
limited privileges to exercise certain particular authoritative powers as 
subjective rights; or it could be more like a governmental power limited 
by objective norms but free within its scope in the choice of means, and 
in that case the organization could approximate either the type of the as- 



« ] Forms of Creation of Rights 7 i 9 

sociation or that of the institution. As to its powers, management could 
be strictly bound to the particular ends of the organization or it could 
enjoy a greater or lesser freedom of choice. The latter factor was also 
important for the degree of autonomy enjoyed by the organization as 
such; it could be lacking entirely, and the acquisition of rights and obli- 
gations could be regulated automatically according to fixed rules, as, 
e.g., in the case of certain liturgical organizations in England; or the 
organization could possess broad powers of autonomous enactment, 
limited by elastic norms of a conventional, statutory or otherwise hetero- 
nomous character. 

Which of these numerous alternatives was realized in any particular 
instance was, and under 3 system of freedom of association still is, de- 
termined by the concrete ends and, quite particularly, by the economic 
means of the particular organization. The organization may be a pre- 
dominantly economic community. In that event the structure is essen- 
tially determined by economic factors, especially the extent and the role 
of "capital" and of its inner structure, on the one hand, and the basis 
of credit and risk, on the other. 

In an organization aiming at capitalistic profit, such as a business 
corporation, a mining or a shipowners' company, or a company for 
financing state needs or colonial enterprise, capital is'of predominant 
significance for the efficiency of the whole, and the prospect of a share 
in the profits for the mter&ts of the members. Such an organization thus 
requires that, at least as a general rule, membership be closed and that 
the purposes be fixed in a relatively stable way; also, that the member- 
ship rights be formally inviolable and transferable upon death and, at 
least usually, inter vivos; that the management be carried on bureau- 
cratically; that the members participate either themselves cr through 
proxies in an assembly that, is de iure organized democratically but in 
fact plutocratically, and that adopts its resolutions, after discussion, by 
a vote proportionate to capital shares. The special aim of such organiza- 
tions, furthermore, does r.W require persons! liability of the members 
externally, since it is irrelevant for the credit standing of the enterprise. 
It can also be dispensed with internally, except, however, in the mining 
company, in consequence of the peculiar structure of mining capital. 1 " 

All this fs different in the case of a; c.ganization aiming at self- 
sufficiency without the use of money; the more comprehensive its pur- 
poses are, trie more it requires the preponderant authority of the collec- 
tivity^ the absence' of fixed membership rights, and an approximation 
fe communist ' economy upon either a direcdy democratic or a patri- 
ae ?,il basis, such as is found in the household community, the Gemein- 
derschaft, 1 *'* or a system of strict communal tillage (Veldgememschaft). 



7 2 O ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

As membership in the organization becomes increasingly closed and in- 
ternally connected with fixed appropriation, as is the case in the village 
and commons community, the membership rights will come more to 
the foreground, whereas the land remaining under communal control 
becomes part of the individually appropriated rights; it will be admin- 
istered by members in rotation, by hereditary bodies, or by lordly 
authority. Finally, in voluntary organizations established for the com- 
munal supplementation of individual production or consumption, as, 
for instance, in the modern cooperatives, membership is usually closed 
since membership rights, although firmly appropriated and, like mem- 
bet-ship duties, firmly delimited, are ordinarily not freely alienable; 
although personal liability tends to become more significant for the 
credit standing of the organization, it is usually limited, unless the risk 
can be clearly determined, in which case it may be unlimited; adminis- 
tration is formally bureaucratic but in practice is conducted quite fre-- 
quendy by konoratiores.™* Individual membership rights in the collec- 
tive fund increasingly lose their structurally determinative significance 
the more the organization comes to serve an indefinite plurality of inter- 
ests and, particularly, of privileged persons, while the contribution of 
capital becomes less significant relative to periodical contributions or 
payments by the interested parties for the services rendered by the 
collectivity. Such a situation has arisen in the case of the purely eco- 
nomically oriented insurance mutuals, but even more so, in the case of 
institutions serving ends of social security or charity. 1 " Where, finally, 
the organization appears as an economic unit meant to serve primarily 
noneconomic ends, the guaranteed property rights of the members be- 
come insignificant and economic considerations lose their importance in 
the determination of the structure of the organization. 

Generally it appears, however, that the development of the legal struc- 
ture of organizations has by no means been predominantly determined 
by economic factors. This fact is proved primarily by the sharp contrast 
between medieval and also modern English developments, on the one 
hand, and the Continental, especially the German, development on the 
other. In English law the sodality, as defined by Gierke, did not exist 
after the Norman invasion, and no concept of corporation of the Conti- 
nental type was developed until modern times. 158 Apart from rudimen- 
tary beginnings, there was no group autonomy in the sense and scope 
in which it was taken for granted in medieval Germany, and there was 
no normatively and generally regulated juristic personality of associa- 
tions. Sodalities of the kind of Gierke's theory, have, as shown by Main- 
land, and later by Hatschek ^ found almost no place in Erglish legal 
life, except in that form which Gierke designated rts authoritarian asso- 



ii ] Forms of Creation of Rights 7 2 1 

(nations -(.Herrschaftsverhandey, 1 '"* significantly, however, these latter 
can be, and in England have been, subsumed under juristic categories 
different from those formulated by Gierke. This absence in England of 
the allegedly Germanic form of the law of organizations (yerhands- 
recht) occurs not only in spite of the non-reception of Roman law 
but was caused, at least in part, by this very fact. The absence of the 
Roman corporation concept facilitated the development of a situation 
in England in which, through the canon law, at first only ecclesiastical 
institutions possessed effective corporate rights, while later on all Eng- 
lish organizations tended to be ascribed a similar character. The theory 
of the "corporation sole," i.e., the Mgnita& represented by the succession 
of officers, 1 " 1 gave in English legal doctrine the possibility of treating 
state and communal administration as juristic persons in the same way 
in which ecclesiastical authorities were treated in canon law. Until the 
seventeenth century the king was regarded as a "corporation sole," 1Si! and 
if even today it is neither the state nor the exchequer (FisfeMs) but the 
■ crown which is regarded as the bearer of all the rights and obligations 
k of the political organization," 3 it is a consequence of the canon law 
influence as well as of the earlier absence of the German corporation 
concept as influenced hy Roman law, which absence, in turn, was 
brought about by the political structure of the estate corporative state 
(Standestaai). In, modem times the English corporation, once it had 
come to exist at all, essentially retained its character as an institution 
rather than a voluntary association; it never, at any rate, became a 
sodality of the German type. These facts make us suspect^that on the 
Continent Roman law was less responsible for the decline of the medie- 
val law of sodalities than has frequendy been believed. The medieval 
organizations were, it is true, quite' alien to the law of Justinian. But 
the Romanist jurists, by whom it was interpreted, were compelled to 
accommodate the existing needs. Their theories had thus to use con- 
ceptual tools of frequendy questionable character, but even so they were 
hardly sufficient to undermine the existence of the medieval organiza- 
tions. At any rate, that the concept of the corporation came to take the 
place of the vague German forms of thought was not entirely due to 
their efforts, although they contributed a good deal. The real reasons 
for the developments both in England on the one side and on the Con- 
tinent, specifically Germany, on the other, were primarily political ones. 
This statement applies to the Middle Ages as well as to the early mod- 
ern period. The essential difference was this: In England royal power 
was strong and centralized and, under the Plantagenets and their suc- 
cessors, disposed of highly developed technical means of administration. 
In Germany, on the other hand, no political center was in existence. 



7 2 2 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. VIII 

Another factor was constituted by the continued effectiveness of certain 
feudal notions in the English law of real property. 

This extremely institutional and autocratic structure of the corpora- 
tion was, however, not the Only relevant form in England. As substitute 
for the Continental corporation, we find the technique of treating cer- 
tain persons or bearers of office as "trustees," i.e., persons to whom certain 
rights are entrusted for the benefit of either some certain beneficiary or 
of the- p*biic at large. Since the end of the seventeenth century not 
only the king but also certain municipal and parish officers have every 
now and then been regarded as trustees. Indeed, wherever we are pres- 
ently using the cohcept of "special purpose fund" (Zwecfcvermogen), 1 " 
English law resorts to trusteeship as the most adequate technical device. 
The characteristic element in this institutional approach is that the 
trustee not only may but must do what is in his jurisdiction; it is, thus, 
a substitute for the concept of public office (Amtsbegriff). The origin 
of the trust in this sense lay, just as in similar cases that of the Roman 
fidei commissum, primarily in the need to cfrcumvent certain prohibitory 
laws, especially the laws of mortmain and certain other limitations im- 
posed by the legal system."" A second cause was the absence in the 
earlier Middle Ages of any concept of corporation. When English law 
did finally develop such a concept, the trust continued to apply to those 
institutions which could not be construed as corporations; but a similar 
institutional trend has continued persistently to play an important role 
in the entire English law of corporations. 

It was the last mentioned situation which accounts for the fact that 
the structure of the village community (Markgenossenschaft) was much -■ 
more authoritarian in English than in German law and that the land- 
lord was usually regarded as the owner of the commons, while the 
peasants were looked upon as mere grantees of tura in re aliena ["rights 
in another person's land (or chattel)"]. In view of this consistently held 
theory their right of access to the king's courts was of little use. The final 
result was the recognition of the fee simple as the fundamental form of 
English real property in a far more extreme form than that in which 
the ager optimo iure privates of Roman law [cf. sec. iv> n. 64] ever 
prevailed in practice. Undivided communities of heirs and all the other 
forms which were derived from it in German law were excluded already 
through the feudal principle-of primogeniture. The principle of tracing 
all land titles ultimately to a royal grant necessarily resulted in the view 
that the dispositive powers of all organizations were but special titles of 
certain persons and their legal successors which could be acquired only 
by way of privilege. Maitland's studies 1 " have shown that, as a result of 
the purely automatic distribution Of rights and duties to each individual 



» ] __ Forms of Creation cf Plights 7*3 

in accordance with his share, which was derived from the old hide sys- 
tem and transferred to ail similar organizations, English practice had 
litde need to deal as an independent legal subject with the totality of 
the individuals participating in a community. The situation was inten- 
sified because the state was in part feudal and in part specifically 
standkch. It was brought about first by the laws of mortmain which 
prohibited, in the interests of the king and the nobility, all- alienation 
of land to the '"dead hand" including the municipalities. iaT Exemptions 
from this prohibition could be obtained only through special privilege, 
and in fact, the city privileges of the fifteenth century which, beginning 
with the privilege of Kingston of 1439, granted corporation rights with 
positive content to the cities in question, were striven for by the cities 
as the very means of escape from these prohibitions. But the law of cor- 
porations thus remained- a law of privileges and subject to the general 
influences of a legal'development peculiar to a society of estates. From 
the king and Parliament downward all authority was regarded as a com- 
plex of specific privileges and prerogatives. Whoever claimed to exercise 
a right acquired otherwise than through private contract had to derive 
it legally from a valid grant and could thus have it only within certain 
definitely established limits. Positive proof of grant could be dispensed 
with only in the case of immemorial custom. Even after the emergence 
of the concept of the corporation there persisted into modern times the 
doctrine, in all its rigor, according to which every organization, if it 
were to transcend in its legal actions the range of the privileges explicidy 
. granted to it, would be acting ultra vires, hence be guilty of an abuse of 
privilege and thus subject to dissolution as it was actually exercised on 
a large scale by the Tudors and Stuarts. 108 

The results were that neither a public nor a private corporation could 
be established in any way other than that of special grant; that no such 
grant would be given except for a limited, purpose and upon grounds of 
public utility, and that all corporations were political, or politically 
authorized, limited purpose corporations, which were to remain under 
constant control and supervision. In the last analysis, the origin of this 
legal situation can be traced to the liturgical character of the Norman 
administration. The king assured himself of the contributions needed 
■for the government and the administration of justice by forming com- 
pulsory organizations with collective duties similar to those of the 
Chinese, the Hellenistic, the late Roman, the Russian, or other legal 
systems. A contmunalHe existed exclusively as an organization with 
liturgical duties toward the royal administration, and it had its rights 
only by virtue of royal grant or indulgence. Otherwise all such com- 
munities legally remained bodies non coporate, even into modern times. 



724 ECONOMY AND LAW (SOCIOLOGY OF LAW') { Ck. VIII 

In consequence of the rigorous patrimonial central administration 
this integration of all associations in the state was at its maximum at 
the beginning of English legal history and had to undergo a gradual 
weakening from then. In Continental legal history, on the other hand, 
it was the bureaucratic princely state of modern times which broke the 
bonds of the traditional corporative f.utonomy; subjected to its own 
supervision the municipal! ries, guilds, village aommunities, churches, 
clubs, and other associations of all kinds; issued patents; regulated and 
controlled them; canceled all rights which were not officially granted in 
the patents; and thus for the first time introduced mto actual practice 
the theory of the "legists," 308 wriu rad n.^'ntained that no organizational 
structure could have juristic personality or any rights of its own except 
by virtue of a grant by the princeps, 1 ™ 

Within those territories where it had lasting effects the French Revo- 
lution destroyed not only every formation of c ^-porations but also every 
type of voluntary association which could not be expressly licensed for 
narrowly defined special ends, as well as all afsociational autonomy in 
general. This destruction was motivated primarily by those political 
reasons which are characteristic of every radical democracy, but some 
part was also played by doctrinaire conceptions of natural law as well 
as considerations of bourgeois-economic orientation which in their doc- 
trinairism also tended towards ruthlessness. The Code exludes the very 
concept of juristic person by simply saying nothing about it. The trend 
was reversed, however, by the economic needs of capitalism and, for 
the noncapitalistic classes, the needs of the market economy on the one , 
hand, the agitational needs of the political parties on the other, and, 
finally, the growing substantive differentiation of the cultural aspirations 
in connection with the personal differentiation of cultural interests 
among individuals.' 71 

Such a sharp break with the past was never experienced in the Eng- 
lish corporation law. English legal theory began in the sixteenth century 
to elaborate, at first for the cities, the concept of "organ" and of "acting 
as an organ" as legally distinct from the private sphere, and in doing 
so it used the concept of the hody politic, i.e., the Roman concept of 
corpus. 1,12 It brought the guilds into the domain of corporation types, 
conferred upon the municipalities the possibility of procedural and 
contractual autonomy, provided they had a seal, and gave the licensed 
corporations a limited autonomy by allowing them to have their own by- 
laws on the basis of the majority principle rather than unanimity. In 
the seventeenth century it came to deny the delictual capacity of corpo- 
rations but, until the eighteenth century, corporations were treated in 
matters of property merely as trustees for the individual members, whose 



it ] _ Forms of Creation of Rights ■* 725 

claims against the corporation were enforced only in'equity. It was not 
until the end of the eighteenth century that English law permitted, and 
even then only reluctantly, the termination of a stockholder's liability 
fqr the debts of the corporation after he had transferred his shares, and 
even then the law still excepted the case of the company's insolvency, 
Blackstone at last was the first to make the real distinction between 
corporate and private assets, referring to Roman law in doing so. 

The gradually increasing influence of the needs of capitalistic enter- 
prisers played an important role in this development. The great Com- 
panies of the mercantilist Tudor and Stuart periods were legally still 
state institutions, as was also the Bank of England, 173 The medieval 
requirements of the use of the seal for every insfrument to be issued 
by the corporation, the treatment of the shares of stock as real property 
whenever some part of the corporate assets consisted of land, and the 
limitation of corporate purposes to public tasks or tasks of public utility 
were completely impracticable for business corporations and had thus 
to be dropped in the course of the eighteenth century. But it was only 
in the nineteenth century that limited liability was generally introduced 
for business corporations and that a system of general normative regu- 
lation was established for all joint-stock companies, together with certain 
special norms for friendly and benevolent societies, learned societies, 
insurance companies, savings banks, and, finally, labor unions. In all 
these cases the norms are by and large similar to tne corresponding 
norms of the Continent. 17 * The old forms, however, were not entirely 
discarded. Even today the appointment of trustees is still* required for 
the appearance in court for a whole range of recognized voluntary asso- 
ciations, for instance a friendly society, 1 " while for an unincorporated 
voluntary association (club) a unanimously granted power of attorney 
is necessary for every legal transaction. 1 " The doctrine of ultra vires 
is still alive, and an individual charter is still required for every corpora- 
tion which cannot be fitted in with any one of the statutory patterns. 
' In practice, however, the situation is not much different^rom that which 
has existed in Germany ever since the Civil Code took effect. 

Not only this brief comparative sketch but every glance at the great 
legal systems shows that none of the great variations in legal develop- 
ment can be explained by the all too frequently invoked slogan of the 
individualistic character of the Roman law as contrasted with the social 
character of Germanic law. 171 

The great wealth of forms of German medieval sodalities was con- 
ditioned by quite particular, predominantly political, factors, and it 
was and still is unique. Russian and Oriental law, including Hindu 
law, have recognized liturgical collective liability and the corresponding 



726 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

collective rights of the compulsory organizations, especially of village 
communities, but also of craftsmen. 1 '" They also have, although not 
everywhere, the solidary liability of the family community and quite fre- 
quently of famiiyiike work fraternities like the Russian artel. But 
they never found a place for such a richly differentiated law of 
sodalities as that of the medieval Occident or for the rational concept 
of the corporation as it was produced in the confluence of Roman and 
medieval law. The Islamic law of endowments was, as we have seen, 
prefigured by the ancient Oriental, particularly Egyptian, and above all 
Byzantine, legal developments, but it contained no germs of a theory 
of corporations. Finally, Chinese law shows in a typical way the 
concomitance of the authority of patrimonial princes and the mainte- 
nance of the family and .kinship groups in their significance as guaran- 
tors of the individual's social status. A conception of the state as inde- 
pendent of the private person of the emperor did not exist any more 
than a law of private corporations or voluntary associations, apart from 
the politically motivated police prohibitions against all organizations 
which would be neither familial, fiscal, nor specially licensed. Munici- 
palities were recognized in official law only as organizations for carrying 
the family liability for taxes and charges. On the basis of the kinship 
group membership, they still exercise the strongest conceivable authority 
over their members, organize common institutions of all sorts of eco- 
nomic activity, and manifest a degree of cohesion towards outsiders 
with which the officials of the imperial authority had to reckon as with 
the strongest local authority. These phenomena, which are no more 
recognized in the legal concepts of official Chinese law than they were 
elsewhere, have often enough impeded its effectiveness. For no clearly 
defined content could be acquired by an autonomy which expressed 
itself externally in blood feuds of kinship groups and towns but was 
never recognized by the official law. The situation of the private organi- 
zations other than the kinship groups and families, especially of the 
highly developed mutual loan and burial societies and the occupational 
organizations, corresponds in part to the situation of the Roman imperial 
period and in part to that of Russian law of the nineteenth century. 
Despite that, the concept of juristic personality in the sense of the law 
of Antiquity is completely absent and the liturgical function has dis- 
appeared, if it ever existed at all, which is by no means certain. The 
capitalistic property communities (yermogemgemeinschaften) have come 
to be emancipated from formal dependence on the household just as 
they did in medieval southern Europe, but in spite of the de facto use 
of such institutions as the firm name, they never reached the point of 
becoming definite legal types as they did in Europe in the thirteenth 



«] Forms of Creation of Rights 727 

century.'Collective liability, corresponding to the general state of the 
law of obligations, took as its origin the delictual liability of the kinship 
groups, which still persists in fragmentary form. But contractual liability, 
which is still a purely personal liability, has not assumed the form of 
solidarity but is limited to the duty of group members to bring forward 
an absconding fellow member; in all other respects codebtors are liable 
only -pro rata rather than solidarity. Only fiscal law recognized the soli- 
dary liability of the family and its property, while collective property 
did not legally exist for private associations any more than it did in 
Roman Antiquity. Like the ancient companies of publicans, the modern 
Chinese business associations are legally treated as consortia or as societes 
en commandite with personally liable directors. Just as in Antiquity and 
in the Orient, this underdeveloped state of the Chinese law of private 
associations and business organizations was caused by the continuing 
significance of the kinship group, within which all economic association 
is taking place, also by the obstruction of autonomous corporations by 
political patrimonialism, and finally by the general reluctance to invest 
1 capital in anything other than fiscal enterprises and trade. 

The different course of medieval Occidental development was caused 
primarily by the fact that here patrimonialism was of a corporate status 
rather than a patriarchal character, which, in turn, was caused essen- 
tially by political and, particularly, military and fiscal reasons. In addi- 
tion there was the development and maintenance of the form of ad- 
ministration of justice associated with the folk community. Wherever 
it was lacking as, for example, in India ever since the rise to predominance 
of the Brahmins, the actual variety of corporate and sodality forms of 
associations was never accompanied by a correspondingly rich legal 
development. The long and persistent absence of rational and strong 
central authorities, as it constantly recurred after temporary intervals, 
did indeed produce an autonomy of mercantile, occupational, and agri- 
cultural communities, which is explicidy recognized by the law. But 
no legal development of the German type arose therefrom. The practical 
consequence of the folk community type of the administration of justice 
was that pressure came to be exercised upon the lord, both the political 
and the landlord, to render judgment or pronounce customals not in 
person or through friends but through members of the popular assembly 
or at least under their decisive influence, lest they be regarded as not 
really binding. No such determination could be made without the par- 
ticipation of the groups affected by the particular body of law. Copy- 
holders, serfs, and retainers (X>iewtmannen) had to be called in when- 
ever the rights and obligations arising from their economic and personal 
dependence relations were involved; and vassals or townsmen, whenever 



yzS ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. Vlll 

rights and obligations concerning their political and contractual de- 
pendence were in issue. 1 " This situation derived originally from the 
military character of the public court community, but with the decay 
of the central authority it was taken over by all organizations with 
granted or usurped administrations of justice. It is clear that this system 
constituted the strongest possible guaranty of both autonomous law- 
making and corporate or sodalian organization. The origin of this guar- 
anty and of that de facto autonomy of the groups of legally affected 
parties in the formation of their own laws, which was necessary to make 
possible the development of the Occidental law of corporations and so- 
dalities as well as of the specifically capitalistic forms of association, was 
conditioned by essentially political and technical administrative con- 
siderations. Quite generally the lord was preoccupied with_ military ac- 
tivities and he hardly had at his disposal a rational administrative 
apparatus which would have been dependent on him and which he 
could have used to supervise his subordinates; thus he had to depend on 
their good will and on their cooperation in meeting his claims and thus 
had to meet the traditional or usurped counterclaims of his dependents 
against him. The typification and appropriation of the rights of these 
dependent strata as sodality rights had their source in this situation. 
The guaranty of the associational norms was increased through a cus- 
tom which stemmed from the form of lawfmding by the popular assem- 
bly, namely, that of periodically ascertaining the prevailing law of the 
consociation by oral testimony and recording it in customals, combined 
with the tendency of the dependents at propitious moments to ask the 
lord for the confirmation of this law as their privilege. 180 Such occur-- 
rences within seigneurial, political and economic organizations nat- 
urally increased the probability of maintaining corporate autonomy also 
for the free and voluntary associations. No such situation could prevail 
in England, because the royal courts of the strong patrimonial power 
suppressed the old administration of justice by the popular assemblies 
of the counties, municipalities, etc. Hence the development of a law of 
sodalities was inhibited; customals and privileges of autonomy were rare, 
and those few which existed lacked the peculiar character of their Con- 
tinental counterparts. In Germany, too, sodalian autonomy, and with 
it, the law of the sodalities, declined rapidly as soon as the political and 
seigneurial authorities had become able to create the administrative ap- 
paratus that allowed them to dispense with the folk type of administra- 
tion of justice. 181 

It was, of course, no accident that this development coincided with 
the intrusion of Romanist traits into the system of government, but 
Roman law as such did not play the decisive role. In England the rise 



« ] Forms of Creation of Rights 7^9 

of a law of'sodalities was prevented by devices of Germanist legal tech- 
nique. Besides, those associations which could not be fitted into the 
categories of the corporation sole or the trust or the patented forms of 
organization were regarded as purely contractual relations of their mem- 
bers, with the statutes being accorded validity only in the sense of a 
contractual offer to be accepted by joining membership. Such a view 
closely corresponds to a construction of the Romanist type, The political 
structure of the lawmaking organizations and the peculiar characteristics 
of the professional bearers of the legal structure, whom we shall discuss 
later [infr", sec. iv], were the decisive factors. 



7. Freedom and Coercion 

The development of legally regulated relationships toward con- 
tractual association and of the law itself toward freedom of contract, 
especially toward a system of free disposition within stipulated forms of 
transaction, is usually regarded as signifying a decrease of constraint 
and an increase of individual freedom. It is clear from what we have 
been saying, in how relative a sense this opinion is formally correct. The 
possibility of entering with others into contractual relations the content 
of which is entirely determined by individual agreement, and likewise 
the possibility of making use in accordance with one's desires of an in- 
creasingly large number of type forms rendered available by the law 
for purposes of consociation in the widest sense of the word, has been 
immensely extended in modem law, at least in the spheres of exchange 
of goods and of personal work and services. However, the extent to 
which this trend has brought about an actual increase of the individual's 
freedom to shape the conditions of his own life or the extent to which, 
on the contrary, life has become more stereotyped in spite, or, perhaps, 
just because of this trend, cannot be determined simply by studying the 
, development of formal legal institutions. The great variety of permitted 
contractual schemata and the formal empowerment to set the content 
of contracts in accordance with one's desires and independendy of all 
official form patterns, in and of itself by no means makes sure that these 
formal possibilities will in fact be available to all and everyone. Such 
availability is prevented above all by the differences in the distribution 
of property as guaranteed by law. Tlie formal right of a worker to enter 
into any contract whatsoever with any employer whatsoever does not in 
practice represent for the employment seeker even the slightest freedom 
in the determination of his own conditions of work, and it does not 
guarantee him any influence on this process. It rather means, at least 



7 3© ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

primarily, that the more powerful party in the market, i.e., normally the 
employer, has the possibility to set the terms, to offer the job "take it or 
leave it," and, given the normally more pressing economic need of the 
worker, to impose his terms upon him. The result of contractual freedom, 
then, is in the first place the opening of the opportunity to use, by the 
clever utilization of property ownership in the market, these resources 
without legal restraints as a means for the achievement of power over 
others. The parties interested in power in the ;r-;j>:ket thus are also in- 
terested in such a legal order. Their interest is sfrved particularly by the 
establishment of "legal empowerment ruie:>." 'H-i:. type of rules does 
no more than create the framework For vi.I;d 3>.- ■. .jements which, 'under 
conditions of formal freedom, ar-° o/rVs>.;h- ;■:;<;'' L: hie to all. Actually, 
however, they are accessible only to the ra'iws of property and thus 
in effect support their very autor:-:>my ,-^c! .,., «,; positions. 

It is necessary to emphasize strongly this aspect of the state of affairs 
in order not to fall into the widely current error that that type of "de- 
centralization of the lawmaking process" — a quite suitable phrase of 
Andreas Voigt's 152 — which is embodied in this modern form of the 
schematically delimited autonomy of the parties' legal transactions is 
identical with a decrease of the degree of coercion exercised within a 
legal community 3S compared with other communities — for instance, one 
organized along "socialist" lines. The increasing significance of freedom 
of contract and, -particularly, of enabling laws which leave everything 
to "free" agreement, implies a relative reduction of that kind of coercion 
which results from the tbicat of mandatory and prohibitory norms. 
Formally it represents, of c: ui-,f,, a deciease of coercion. But it is also* 
obvious how advantagfc-iAS i'.\$ state of affairs is to those who are eco-' 
nomically in the position lo i.iake use of the empowerments. The exact 
extent to which the total amount of "freedom" within a given legal 
community is actually increased depends entirely upon the concrete 
economic order and especially upon the property distribution. In no 
case can it be simply deduced from the content of the law. Enabling 
laws of the sort discussed here would certainly play a slight role in a 
"socialist" community; likewise, the positions from which coercion is 
exercised, the type of coercion, and those against whom it is directed, 
will also be different from what they are in a private economy. In the 
latter, coercion is exercised to a considerable extent by the private owners 
of the means of production and acquisition, to whom the law guarantees 
their property and whose power can thus manifest itself in the competi- 
tive struggle of the market. In this type of coercion the statement "co- 
actiis voluit" 1 * 3 applies with peculiar force just because of the careful 
avoidance of the use of author: tarinn forms- In the labor market, it is 



ii ] _ Forms of Creation of Rights 7 3 1 

left to the "free' ; discretion of the p?i;-;-'. to accent rhj conditions im- 
posed by those who are economically stronger by ,; :rrue of tKj legal 
guaranty of their property. In a socialist community, direct atandatory 
and prohibitory decrees of a central economic control auihority, in 
■whichever way it may be conceived, would play a much greater role 
.than such ordinations are playing today. In the event of disobedience, 
observance will be produced by means of some sort of "coercion" but not 
through struggle in the market. Which system would possess more real 
coercion and which one more real personal freedom cannot be decided, 
however, by the mere analysis of the actually existing or conceivable 
formal legal system. So far sociology can only perceive the qualitative 
differences among the various types of coercion and their incidence 
among the participants in the legal community. 

A (democratically) socialist order (in the sense current in present- 
day ideologies) rejects coercion not only in the form in which it is 
exercised in the market through the possession of private property, but 
also the direct coercion exercised on the basis of purely personal claims 
to authority. It would recognize only the validity of agreed abstract 
laws, regardless of whether they are called by this name. Formally, the 
market community does not recognize direct coercion on the basis of 
personal authority. It produces in its stead a special" kind of coercive 
situation which, as a general principle, applies without any discrimina- 
tion to workers, enterprisers, producers and consumers, viz., in the im- 
personal form of the inevitability of adaptation to the purely economic 
"laws' of the market. The sanctions consist in the loss or decrease of 
economic power ?.nd, under certain conditions, in tin* von/ loss of onu's 
economic existence. The private enterprise system r oinft'o rms into ob- 
jects of "labor market transactions'' even those person. d aod ."luth-Lfi- 
tarian-hicrarchical relations which actually exist in the capitalistic enter- 
prise. While the authoritarian relationships are thus drained <:i all 
normal sentimental content, authoritarian constraint not only continues 
but, at least under certain circumstances, even increases. The mere com- 
prehensive the realm of structures whoso existence depends in a specific 
way on "discipline"— that of capitalist commercial establishments — the 
more relendessly can authoritarian constraint be exercised within them, and 
the smaller will be the circle of those in whose hands the power to use 
this type of constraint is concentrated and who also hold the power to 
have such authority guaranteed to them by the legal order. A legal order 
which contains ever so few mandatory and prohibitory norms and ever 
so many "freedoms" and "empowerments" can nonetheless in its practical 
effects facilitate a quantitative and qualitative increase not only of coercion 
in general but quite specifically of authoritarian coercion. 



7 3 2 economy and law (sociology op law) [ Ch. Vlll 

NOTES 

i. See sec. i:i(a). As to the distinction between claim norms and regie- 
mentations, cf. Jbllinbx, System, esp. 63-76 (RefUxrecht und subjek^es 
Rechty, W. Jbllinbk, Vbrwaltungsrbcht (1048) 200, 30;. The validity of 
the distinction is denied by La band, Staatsrecht (1911) I, 331; III, 307. A 
synthesis is tried by H. Kelsbn, Rbinb Rechtslehrb (1934) $91 Theory 77, 
78, 84. The influence on Weber of Georg Jellinek, his Heidelberg colleague and 
personal friend, was considerable, not only in matters of detail but in giving sup- 
port to Weber's sociological approach to law in general. It was applied by Jellinek 
especially in his Allgemhine Staatslehee, 3rded. 1914. 

2. For a typical presentation of this trichotomy see Ennbccerus 56; 1 
Austin, Lectures on Jurisprudence (1885) 39, 92, 684, 710 el seq. As to 
the third kind of right the text is not entirely clear. What is meant is not the 
situation in which A can allow B to engage in certain conduct but, as the foHlw- 
ihg sentences show, the situation in which A can engage in certain conduct with- 
out being subject to legally justified interference by one, or more, or all, others. 

3'. Weber is using the term Freikeitsrecht ('privilege") in the sense in which 
it had been developed by G. Jellinek in System 89. It might be noted that 
Jellinek's and Weber's use of the terms "claim" and "privilege' resembles Hoh- 
feld's terminology; cf. Hohfeld, Fundamental Legal Conceptions (1923). 

4. Weber is thinking here of the contract to devise or bequeath. In American 
law such a contract binds the promisor to make a certain will which? in turn, cre- 
ates the right of the devisee or legatee. In German law the "contract of inherit- 
ance," if properly concluded, is as such the basis ^or the beneficiary's right upon 
the death of the promisor; it does not thus need to be implemented by a will. See 
German Civil Code, Sees. 2278-2302. 

5. See Austrian Civil Code, Sec. 1 249. 

6. Cf. McMurray, Succession, Laws of, 14 Encyc. Soc. Sci. 435, 440; 
Nussbaum, Liberty of Testation (1937) 23 A. B.A.J. 183; Rheinstein, Dece- 
dents' Estates 403, 406. 

7. Cf- J«fT«,sec.(i:4:2-3. 

8. All this is current German theory of administrative law. Cf. especially W. 
Jbllinbk, 352 et seq. and further literature there cited; A. Lotz, Gescmichtb 
dbs deutschbn Beamtentums (19 ] 4); W. Some art, Beamtbnschaet und 
Wirtschaft (1927); F. Winters, Abriss der Gbschichtb des Beamten- 
tums (1929); Laband, Das Staatsrecht des Deutschbn Rbichbs (191O 
433 et seq, 

9. The matter discussed in Lotz, op. tit. 28 (Beamte ah Hofbeamtey La- 
* band, op. at. 433. 

» 10. O. Gierke, 91; same author, Genossenschaftshbcht I, $35! Carlyle, 
History o* Medieval Political Theory (1903), voJU iii, part 1; Spangsn- 
serg, Vom Lehensstaat zum Standestaat (1912}; Luschin v. Ebengreuth, 
Die Anfange der LandstHnde (1897) 78 Hist. Z. 427. 

11. The leges barbaromm were those "codifications'' of the customary laws 
which were undertaken^ by the Germanic peoples after their conquest of the west- 
em parts of the Roman Empire, as, for example, the Lex Salica of the Salic 
Franks or the Lex Vtsigothorwn of the Visigothic conquerors of Spain; cf. Amira 
15, 16; Jenks, Development of Teutonic Law (1907) 1 Selected Essays in 
Anglo- American Legal History 35; Huebner 2. 

12. Cf. Lewis H. Morgan, League of the Iroquois (1922); same author, 
Ancient Society (1878) 399, 446. 



H ] _ Forms of Creation of Rights 7 3 3 

1 3. On men's houses, see Lowie, Primitive Society (1925} *97, i99i 306, 

315, 368; H. ScHURTZ, AlTBRSXLASSBN UND ManNERBUNDE O90O; W. 

Schmidt und W Kofpers, Gssellschaft und Wirtschapt der Volxbr 
(1924) 224. Cf. also infra, ch. IX:2. 

14. This view of the origin of procedural law was also maintained by Maine, 
at 385. The opposite view that the law of procedure originated in the power of 
ruleis to command their subjects to submit to arbitration has been advanced espe- 
cially by F. Oppbnhbimsr, The State (1914) 78-81, and L. Gumplowicz, 
Outlines op Sociology (1899), 179; cf. Seagle 62. It is an oversimplification 
to say that all procedural law had its origin either in voluntary or in commanded 
submission, for many other factors must have been involved. Where the disputes 
between primitive kinship groups were mediated or arbitrated, some additional 
circumstance must have occurred to change voluntary submission into compul- 
sory submission to adjudication. It is, therefore, perhaps more correct to say that 
different rules of procedure had different origins; that this was so in Roman law 
has been argued by so careful a scholar as Wenger (at 1 1 ); but see, for another 
differentiating view, Emrlich 137 et seq. As to the controversy in general, see 
Thurnwald 145 et sea.; Diamond, cc. xxx, xxxi. 

1 j. One example for many: The 1915 edition had 'lord mayor" instead of 
Lord Chancellor, which resulted in a lengthy footnote in the English edition on 
the^ Mayor's Court. (R) — With respect to the Roman praetor Weber seems to be 
thinking primarily of the litis contestatio of the formulary procedure. Through 
the threat of property sequestration Cm***™ »» hona) the -praetor could compel 
the parties to agree upon the formula proposed by him or worked out, with his 
cooperation, before him. Once the formula has been setded "the praetor gives the 
document to the plaintiff. . . And now follows the formal contract between the 
parties: the one who has now come out ... as actor hands the document to the 
defendant, who accepts it." Wencer 139. As to the numerous controversies con- 
cerning the litis contestatio and its character as a compulsory contract, see Wen- 
cer 17, 139. Other compulsory contracts may he found in those various cases in 
which the praetor could compel one party to promise to give security to the other 
(cautiones; stipuhtiones in (twe); cf. Wbnger 102, 

r6. See Thurnwald 51; R. Schroder 66; Brunner I, 132. Schmidt und 
Koppers, op, at. (in Votiter und Kulturen) III, 167, 234; Maine, Early Law 
69 et sea. 

17. On the oath, see Thurnwald 176; Wbnger 125, 336; Pollock and 
Maitland I, 39; II, 600; Diamond 52, m, 336—339, 350-396. 

18. ScHMroT und Koppers, op. tit. I, 497; 1 Westekmarcx, History of 
Human Marriage (igas) 233. 

19. See M. Ebert, Real-Lexixon der Vorcbschichte (1926) VI, sub tit. 
' "Kauf," 246-248; VIII, sub tit. "Markt," 34. 

20. In Roman law, at least with respect to the sale of res mantipi by way of 
mattcipatio (see infra, n. 22) the original source of the sellers obligation arising 
in the case of a defect of title or quality is predormnandy said to have con- 
sisted in a wrong committed by him (see E. Rabel, Die Haftung des Vbr- 
iaufers wecen Mangels in Recht [1902] 8/9). Jhering, whose opinion seems 
to have influenced Weber, believed that the wrong consisted in a furtum ("theft") 
which would be committed by the seller when he accepted the buyer's money as 
the price for goods which did not belong to him (Geist des romischen Rechts, 
I, 157; III, Part i, 138). It is more probable, however, that the seller's wrong 
consisted in his failure to come to the buyer's defense when the letter's right to 
quiet possession and enjoyment was questioned by a third party's claim of sups- 



7 3 4 5 ECONOMY AND LAW (sOO^GI.O^V OF LAW) [ C«. VU1 

rior title. A duty of the seiier to defend the buyer against such attacks has been 
found to have existed in the archaic stages of Greek, Germanic, Slavic, and num- 
erous other laws; cf. Rabbl, he. cit. 6; Darbstb, op. cit. 166, 184, 202, 232, 
2631 but compare now H. Going, Die clausula deli im klassischen Recht (19JO 
Festschrift Fritz Schulz 97. 

21. Cbartal money: all types of money which is either stamped or coined, in 
contrast with the natural means of exchange or payment. 

22. In transactions per aes et libram ('"by copper and scales") the money was 
weighed for the recipient in the presence of five witnesses and a weigher Qihri- 
fens'); certain ritual words had to be spoken. This institution was principally 
used in the mancipatio, by which title to goods was transferred, i.e., goods which 
were the mainstay of a Roman farm household (land, slaves, and catde), the 
so-called res mancipi (swpra n. 20). Tide to other goods could be transferred, at 
least in classical times, in the less formal way of simple traditio. Transaction per 
aes et Ubram was also used in connection with the nexum, the archaic way of 
creating -a debt for a loan, and also for purposes of adoption, malting wills, and 
marriage. See infra n, 24. Cf. Bucrland 236; Jolowicz, 151. As Weber states, 
the transactions per aes et Ubram were, or better seem to have been, one of the 
two principal methods by which legally binding transactions could be made in 
the archaic stage of Roman law. The other method was the in iure cessio, which, 
similar to the common law fine, seems essentially to have been a mock trial 
before the magistrate intended to result in an authoritative authentication of the 
fact that a grantor had yielded his title to his grantee. 

23. The 1925, and still the 1956, edition read "Zwangskontrakt," which in 
English was rendered "coercing contract." However, this turned out to be a sim- 
ple misreading of "Zweckkontrakt." The error obscured several passages in the 
old translation. (R). 

34. Coemptio and confarreatio are usually stated as the two forms of marriage 
of early Roman law. The latter was an elaborate religious ceremony, which seems 
to have been impractical for anyone but the members of the patrician aristocracy. 
Coemptio was a transaction per aes et Ubram which seems to have been essential 
not so much for the creation of the marriage relation as such as for the acquisition 
by the husband of the old-style marital power (waws) over his wife. In later 
republican times both kinds of formality became obsolete. The marriage was re- 
garded as validly concluded by the informal consent of the parties, usually evi- 
denced by the celebration of the bride's entry into the groom's house (in domum 
deduetio). In the old-style coemptio the head of the household to which the bride 
belonged seems to have transferred for a nominal price his power over her to the 
groom. In so far as coemptio was at all used in classical times, the mancipatio 
with the groom seems to have been performed by the bride herself. Cf. 1 Bon- 
pa nte, Corso Di Dmrrro romano (1925) 39 et se<j.; Kunkel, 14 Pauly-Wis- 
sowa, Realenzyxlofadir der klassischbn Altertumswissenschaft 2259; F, 
Sckulz, Classical Roman Law (1951) 103; Cohbett, Roman Law of Mar- 
riage (193°); for further literature, see Jors and Kunkel 271 et sea., 416. 

25. The term obligation is more commonly used in the civil law than in the 
common law jurisdictions. In civil law terminology obligation (Lat. obligatio) 
means personal duty of any kind, such as duty to pay money, to deliver goods, to 
convey a piece of land, to render services, to refrain from engaging in certain 
conduct, etc. The obligation can arise out of a contract (ex contractu), out of a 
tort (ex delicto), or directly out of a command of the legal order (ex lege); sub- 
divisions of the latter category are the obligations quasi ex contractu and quasi ex 
delicto. 



« ] Forms of Creation of Rights 7 3 5 

26. WergtU (wergeW) — expiatory payment for wrong, especially as fixed by 
tradition. The word is Germanic, but the institution seems to have been almost 
universal. Weber follows here the. theory primarily expressed by Amika, Nomv 

GERMANISCHE8 ObLIGATIONBNRBCHT (1882). 

27. The rei vindicatio was the action for the specific recovery of 3 chattel or a 
piece of land. It was brought against the possessor by the person who claimed to 
be the legal owner. It has been described by Gaius Civ, 16, 17) as follows: 
[transI.byL. Mears(i882), 518]: 

"§ 16: If it was a real action in respect of movables or moving ihings, which 
could be brought or led into court, they were claimed before the praetor thus; 
The claimant, holding a staff, took hold of the thing, for example, a slave, and 
spoke as follows: 'I say this slave is mine, according to the law of the quirites, by 
the title which I have shown. Tius, upon him I place my lance.' at the same 
rime placing the staff on the slave. His adversary then said and did the same, and 
when both had thus laid claim to the slave, the praetor said: 'Both claimants quit 
hold of the slave.' Upon this, they both let go. The first claimant then said: 1 
demand of you the ground of your claim.' The other replied: 'I declared my 
right when I placed n»v lance upon him.' Then the first claimant said: 'Since you 
claim him in defiance of right, I challenge you to stake five hundred pounds of 
copper upon the issue of a trial.' His adversary replied by a similar challenge, but 
if the subject matter of the suit was of less value than one thousand pounds of 
copper, then they named fifty pounds of copper as the sum reciprocally staked. 
Then the same proceedings were gone through as in a personal action, after 
which the praetor temporarily assigned to one of the parries the subject matter of 
the suit, that is, appointed one of them to be interim possessor and ordered him to 
give security to his opponent for the subject matter of the suit and the interim 
possession, that is, for the thing in dispute, and the produce, whilst the praetor 
himself took security from both parries in respect of the penal sum for costs as 
that would be forfeited to the public treasury. A staff was used, as it were, in 
the place of the spear, which was the symbol of lawful ownership; since that was 
especially looked upon as 3 man's own property which had been taken from the 
enemy, and for this reason a spear is placed before the centumviral tribunal. 
"§ 17: If the thing was of such a nature that it could not be conveniendy brought 
or led into court, as for example, if it were a column, or a ship, or a herd of catde 
of any sort, some part of it only was taken, and the claim was made in respect of 
that part as if the whole were before the court, . . . Similarly, when the dispute 
was about a piece of land, or a building, or an inheritance, some part was taken 
and brought into court, and the claim was made in respect of this portion, as if 
in the presence of the whole. . ." 

Wengeh, p. 127, adds the following observation: "That is a symbolic re-' 
minder of the manual struggle for the thing, of self-help, before the state estab- 
lished the order of peace. This last is represented by the Praetor: cww uterque 
vindicasset, praetor dicebat: Mittite umbo howimem ('since both of you claimed 
[him], leave both the man'). That is still clearer in the symbolic fi^ht for a 
fundus (tract of land) from which the parties bring a clod, in order to enact 
with it the aforementioned reciprocal vjWicatio-proceeding before the Praetor." 
As to the Greek diudikasia (SiaSotairitt), see 2 Bonneh and Smith 79, 101, 163, 
260, 265; Leist 490. See also supra, sec. i, notes 27 and 28. 

28. MarfegetKeiwscfeaft or, more frequendy Markgenossenschaft is the com- 
munity of those who are entitled to share in the use of the commons,' especially 
the common pasture and woodland. On the various forms of agiarian communities, 



7 3^ ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. V1U 

see Weber, Economic History (trsl. F. Knight, 1927) 3; cfi Pollock and 
Mattland 1, 560. 

29. Hereditatis petitio: action for the recovery of the total estate of a decedent, 
brought by the person claiming heirship against one who is alleged to have no 
right to the estate. 

30. Steinberg, Der Geist des chinesischen Vermogensrechts (1911) 26 Z.f. 
vox. RW. 142/3; cf. Alabaster 317. 

31. On this institution of "sitting dharma" see Maine, Institutions 38 et 
sea.; 297-305; E. S. Hartland, Primitive Law (1924) 186. A similar custom 
is reported for ancient Irish law by Maine, op. at 280, 296, 303: If the debtor 
was of chieftain grade, the creditor had "to fast upon him," i.e., to go to his resi- 
dence and wait a certain time without food. 

32. A. Kocomek and J. Wigmore, Sources of Ancient and Primitive Law 
(1915) in 1 Evolution 0* Law _,28, on Fanti Customary Law; Maine, Insti- 
tutions 1 87, on Irish law. 

33. The nexum seems to have been the money loan contract which was for- 
mally created per aes et libram, i.e., by weighing the copper amount in the pres- 
ence of five witnesses and a weigher Qibripensy, see supra, n. 22. It had disap- 
peared in historical times, and the references in the sources are so fragmentary 
that its origin and nature are still obscure. The theory accepted by Weber is that 
of Mitteis (25 Sav. Z. Rom. 282), who believed that the nexum was a transac- 
tion by which the debtor symbolically sold himself to the creditor. This theory 
has, however, been attacked from various quarters. The extensive literature is 
listed at Jors and Kunkel 219; to this should be added Koschaker, Eheschliess- 
ung und Kauf nach alien Rechten [1951], Archiv orientalny 210, 288; and V. 
Liibtow, Zum Nexumprohlem (1950) 67 Sav. Z. Rom. 112. Stipulatio was the 
contract which was bindingly concluded by the exchange of certain ritualistic 
words. Upon the creditor's question: Sestertios mille dare spondesne ("do you 
promise to pay 1,000 sestertii?" the debtor would answer, "spondeo" ("I prom- 
ise"). Later it became permissible to use other terms instead of the words 
"spondesne? spondeo," especially, "protnittisne? promitto" or "dabisne? dabo." 
Whether, as Weber believes, such a promise or stipulation could only relate to 
the payment of money, is controversial. The literature is listed at Jors and 
Kunket.. 97, See also ibid. 218. 

33a. "Aus r&mischem und burgertichem Recht" (Festschr. p. Becker) 109 
et seq. Mitteis' theory of the origin of the stipulatio has been doubted by Segr6, 
108 Ancmvio giujudico 179; Luzzatto, Per una ipotesi sidle oiigini e la mature 
deile obbtigxaoni romane, 8 Fond. Castblli 253; and Weiss, Pauly-Wissowa, 
Real bnzyxlo? acts der klass. Altbrtumswissenschaft, 2. Reihe, III, 2540; 
Jors and Kunkbl 96. These authors declare the origin of the stipulatio has 
as yet not been cleared up. 

34. Weber is thinking here of the in ius vocatio, by which an action was 
initiated in archaic Roman law and which b described by Wbnger 96, as fol- 
lows; "In ius vocatio. In the Twelve Tables it is placed at the head of the whole 
statute, and it is handed down to us in its crude archaic primitiveness: I, (1) Si 
in tots vocat, ito. Nt it, antestandno: igitur em capito. (2) Si calvitur pedemve 
struit, manum endo iacito. (3) Si morbus aevitasve vitium esctt, iumentum data. 
Si nolet, arceram ne sternito [translation by J." Wigmore, Sources of Ancient 
and Primtotb Law (191 5), vol. I. of Evolution of Law, by Kocourek and 
Wigmore, p. 465]. "If [a man] caU [another] to law, he shall go. If he go not, 
they shall witness it; then he shall be seized. If he flee or evade, lay hands on him 



*j ] Forms of Creation of Rights 7 3 7 

as he goes. If iUnest or age hinder, an ox-team shaM he given him, hut not a 
covered carriage, if he does not wish." 

"In these provisions, probably handed down with later additions, appear al- 
ready fundamental legal principles, special regulations which we today would 
leave to an enforcing ordinance. Further, such enforcing ordinances were indeed 
issued by the Praetor in great numbers. — The defendant may not personally offer 
resistance to the m iw* vocatfo, but it is possible For him to find an appropriate 
vindex, who frees him from the hands of the plaintiff who is applying force, and 
guarantees — in some manner no longer surely recognizable — the appearance of 
the defendant in court. If no appropriate vindex is found, then the defendant is, 
according to the Twelve Tables, dragged by force before the judicial magistrate. 
The calling of witnesses by the plaintiff means for the defendant at least a certain 
guaranty against the unlawful use of force." 

35. As to Roman law, Weber obviously has in mind the archaic fegis actio 
per pignoris capionem, which seems not to have been generally available, how- 
ever, but only for certain claims of sacred law and public law, especially taxes; cf. 
Wencbr 128. In the Germanic law distress seems to have been more generally 
available. As to both Roman and Germanic law, Weber seems to follow the ex- 
position of Maine, Institutions 257 et seq. 

36. The famous passage is related by Gellius XX, 48 (Bruns, Pontes juris 
roTnani antiqui; Tab. II. 6) *° have read as follows: 'Tertiis nundinis partis se- 
canto. Si plus minusve secuerint, se fraude esto." ("After sixty days [60 days after 
the seizure of the defaulting debtor by one of his several creditors] let them cut 
parts. If they cut more or less, it shall be without prejudice.") The translation of 
the archaic Latin is not too certain and the meaning of the passage has been con- 
troversial. Weber follows the opinion which regards the passage as permitting the 
creditors bodily to cut the debtor in pieces. Joseph Kohler has used the same in- 
terpretation in his famous essay on Shylock's claim to his debtor's "pound of 
flesh," in which he sees a survival of a once general idea into a time when it came 
to clash with changed moral ideas. (Shaxbsfbare vor dem Forum dbr Juris.- 
pRirrtENZ [2nd ed. 1919] 50.) An entirely different view has been expressed by 
Max Radin C'Secare partis: The Early Roman Law of Execution against a Deb- 
tor" figaa] 43 Amer. J, of Philosophy 32), who applies the secure to the 
piecemeal alienation of the debtor's property. For further references to the exten- 
sive literature, see Whnger, § 21, n. 8, 

37. The German text is as follows: "oder der Glaubiger setzte sich in das 
Haus des Schuldners, und dieser musste ihn bewirten (Etwteger)." — There exists 
a German word "Einleger," hut none of its meanings fits the passage of the text 

.(see 1 Preusslsche Axademie dbr Wissenschaetbn, Dbutschbs Rbchts- 
worterbuch [1934] 1422). Probably there has occurred an error of transcrip- 
tion or typography, and the word meant is Einlager. However, this term refers 
to the exactly opposite method of debt collection, viz., the exertion of pressure 
upon the debtor by exacting that he or his surety live away from home at some 
agreed place until the debt is paid (see the references in 2 Deutschbs 
Rechtsworterbuch 1414). Ordinarily the duty to submit to such "quartering" 
had, in German law, to be assumed by special agreement (Hubbner 482). 
Von Schwerin Cop. cit.) describes the institution as follows: "Hostageship has 
survived terminologically in the institution of Einlager (giseUchaft, ohitagtum) 
which was talcen over (sc. in Germany) from France in the nth century. It 
wascommon, especially among knights; usually it was undertaken by contract, 
but there were also cases where it was provided by statute. It was a kind of 
captivity into which the surety surrendered himself by riding up to an inn and 



7'3 8 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

remaining there together with a fixed number of retainers until die debt was 
paid. The institution was abolished by imperial legislation in the 16th century, 
but in certain regions, for instance, of Switzerland, it survived into the modem 
age." 

The only instance of a situation in which, in the territory of German law, 
the creditor would have submitted to "quartering" is referred to in the following 
statement of R. His (Gehbter und gebotener triede im deutschen Mittehlter 
[1912] 33 Sav. Z. Germ. 169): "To prevent an abuse of force, of the two 
parties, the Dutch and West-Frisian cities of the 15th century ordered both 
litigants— the creditor and the debtor — to submit themselves to 'quartering.* " For 
further references see M. Rintelen, Schuldhaft und Einlager im VoUstreckwugs- 
verfahren des alt-rtiederlandischen und siichHschen Rechtes (1908); 1 Amira, 
op. cit. (1882) 362, 392 et seq. 

While no reference could thus be found which would indicate a connection ■ 
of the German Einlager with the mode of exacting a debt by the creditor's 
installing himself in die house of a debtor, the latter custom has, indeed, oc- 
curred as indicated by a remark of Kohler's about China (Kohler and 
Wknger 143). 

38. Traditionally, a lex Poetelia, dated at 326 B.C., is cited as an important 
milepost of this development. It is reported to have prohibited the chaining and 
billing of tbe debtor and to have compelled the creditor to accept the debtor's 
willingness to work off the debt. The reports, which are all by historians who 
wrote centuries later (Livy, Dionysius, Cicero, etc.), are suspect as to the details 
of the development but probably accurate in so far as they represent the transi- 
tion from liability of the person to liability of the property as an aspect of the 

"Struggle between patricians and plebeians. As to literature on the problem, see 
Wencer, § 21, n. 10. 

39. In the United States imprisonment for debt was generally abolished in 
the nineteenth century, when its prohibition was expressly stated in numerous 
state constitutions. It has nevertheless survived in the form of punishment for 
contempt of court for nonobedience of equity decrees, as well as, in certain states, 
judgments tor damages rendered at law upon a verdict which finds the debtor 
guilty of malice or of reckless or wanton negligence. For obligations to pay family 
support the threat of imprisonment in alimony row still constitutes one of the 
principal guaranties of enforcement. 

In Germany, by Bundesgesetz of 29 May 1868, as in probably all countries 
of Western and Central Europe (e.g., Bundesverfassung der Schweizerischen 
Eidgenossenschaft of 29 May 1874, Art* 59), imprisonment for debt has been 
radically and completely abolished by nineteenth-century legislation. Public 
opinion would not tolerate it even as a means of enforcement of duties of family 
support. Theoretically, but hardly ever used, imprisonment is still possible as a 
means to induce a person to comply with certain judgments ordering him to do, 
or to refrain from doing, an act other than that of the payment of money. See 
German Code of Civil Procedure, § $ 888, 890: cf . A. Schonxe, Zwangsvoxi,- 
.stkbckungsrscht (1948) 168-189. On the abolition of imprisonment for 
money debt, see Hbdemann, I; L. Rosenberg, lbhrbuch dbs deutschen 
ZrvrLPROZfissRSCHTS (1949) 806-807. 

40. Vadiatio (Wadiation) — Germanic transaction establishing suretyship: a 
staff is handed by the debtor to the creditor, who hands it on to the surety, ask- 
ing him to assume the suretyship for the debtor's debt. There exists a voluminous 
literature which is particularly concerned with the symbolism of the transaction. 
According to Amira (Die Wadiation, Sitzungsbbrichte dbr bayerischen 



« ] Forms of Creation of Rights '/ 'i 9 

Axadbmie der WissBnschaftbn, philos.-fhilol. Klasse [191 1]), the staff 
constitutes an instance of tlie magically spelled messenger's staff, which is found 
to play a considerable role in the symbolism of the Germanic laws; see Amira, 
Der Stab in der cermanischen Rechtssymbolik (iq°q)- For a different 
view about the va&atio see O. Gierke, Schuld und Haftunc (1910); see also 
Huebnbr 497. 

41. Text in square brackets supplied by the translator. The interpolation 
seems to be the one called for by the context. 

42. Cf, supra, sec. i:;, 

43. As to the effects of this feature in the common law, where it remained 
influential into the very present, see Street, The Foundations of Legal 
Liability (1916) II, 75; III; 129; Rhbinstein, Struktuh 55 ei seq. 61. 

44. Tab. VI.i: "Cum nexum facit mancipiumque, uti lingua nuncupassit, 
ita ius esto." — "When he makes a nexum and a nM-ncipiu-m, as the tongue has 
spoken, so it shall be the Jaw." For attempts to explain this passage and the 
numerous controversies around it, see Jors and Kunkel 90 et seq.; Buck land 
426; Jolowicz 139, 145-150, 164; for a new and apparendy well-founded 
theory, see Koschaxer, op. cit. supra n. 33, at 210, 288. 

45. Of the extensive literature, see _especially Maitland, Forms, 2 Pollock 
and Maitland 196, 214, 220, 348; Holdsworth, I, 456; II, 379, 440, 442; 
III, 281, 323, 455, 457, 422, 430 etseq. 

46. Weber is apparently following here the famous description given of the 
development by Mnrais, 1, 315 et seq., who finds one of the principal sources 
of what later came to be regarded as liability for breach of contract in the idea 
that a man who fails to live up to certain duties which he has assumed is not act- 
ing 'like a gentleman," that he is guilty of dolus, and if so found officially, has 
incurred forfeiture of civil rights (mf«mia). For discussions of this theory, see 

SOBM 423; R, SOHM AND L. MlTTEIS, InSTITUTIONEN (1949) 190, 460 ("in- 

famia"); Jobs and Kunkel 170, 222, 

47. Viz., by A. Leist in Grundkiss der Sozialokonomik. IV Abt. "Spezi- 
fische Elemente der modernen kapitalistischen Wirtschaft." 1. Teil (1925), p. 37, 
s.t. Die -tnoderne Privatrechisordnung vnd der Kapitalhmus (ed. by Hans Nip- 
perdey). 

48. In a general sense continental legal theory distinguishes between two 
types of representation or Cbro&Hy) agency, i.e., between .(i) direct representa- 
tion where the agent makes a contract or creates an obligation expressly in the 
name and on behalf of his principal, and 00 indirect representation, in which 
the principal is neither mentioned nor disclosed. In the technical sense only the 
former is called agency. Roman law had, apart from mandatum, no term of art 
for "agency" in the technical sense. Indeed, according to Paulus, Dig. 45, 1, 126, 
2, "per liberam personam obligarionem nullam adquirere possumus" — the making 
of contracts through free persons (or agents) is impossible. Gaius is to the same 
effect: 1.2, 95. But in practice Roman law diverged from this negative position 
by creating exceptions which the Roman lawyers handled in their customary 
subde manner. See Wenger, Die Stellvertretunc rM Reckte der Papyri ' 
(1906), esp. pp. 157-166 and p. 219 for the selling of a slave through an agent; 
cf. also Sohm, 5 45 "Representation"; Buckland 276 et seq., 529. In Greek law, 
on the other hand, direct representation was well known not only because of the 
role which the slaves played in commerce but also because the concept of agency 
was used in the tuteta and in other institutions; see Wsngbr 166-172; Bbau- 

CHBT, HlSTOTRB DU DROIT PRTVE DB LA RJfUBLIQUE ATHBNJRNNE (1897). 

49. As to Roman law, see Sohm, § 87; Buckland 518, 550; Jors and 



7 4 O ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

Kunkbl 205. In practice the effect of substituting a new creditor for an old one 
could be achieved by means of novation: by agreement with the debtor the old 
obligation toward the original creditor was extinguished, and a new one with a 
new creditor was substituted for it. 

As to Germanic Law, see Huebner, §§ 78, 79. 

As to the slow development of assignment in the Common Law, see 2 
Williston on Contracts 1164 et seq. and literature cited there. 

50. By the Lex Anastasiana of a.d. 506 an assignee who had purchased the 
assignor's claim could recover from the debtor no more than the purchase price 
which he, the assignee, had paid the assignor; as to the surplus, the debt was 
discharged. Under a law of a.d. 422, which was restated in Codex 2, 13, 2, a 
creditor was prohibited to assign his claim to a socially more powerful (jpotentior) 
person. Cf. Mitteis, fiber den Ausdruck "■potentiores" in den Digesten. 
2 Melanges Gerard (1911-). On the role which the fear of maintenance and 
champerty played in the reluctance of the Common Law to recognize the assign- 
ability of choses in action, see Williston, <yp. cit. 

5 1 . L. Goldschmidt 80, 82, 387, 390; see also his Vermischtb Schriften 
(1901) II, 172; Kohler and Pbiser, Hammurabi's Gesetz (1904) HI, 237; 
compare this with the doubts in Goldschmidt, loc. cit. 167, as well as those of 
Koschaker, 9 Encyc. Soc. Sci. 211, 2r7/8. 

52. The contractus Uteralis (Roman law) was the contractual obligation cre- 
ated or, more probably, re-created, by the ledger entry by a banker or some such 
person; cf. Buckland 459; see also Goldschmidt, tnhaber-, Order- -und execw 
torische Urkunden im Chsstschen Altertum (1889) 10 Sav. Z Rom. 373, at 393. 
Many problems are as yet unsolved; cf. the literature listed by Jors and Kunkel 
r88, 410. 

53. For the insistence of the state upon registration of title to land see 
Zachariae v. Lingenthal, Zur Geschichte des rdmischen Grundeigenthums 
(1888), 9 Sav. Z. Rom. 263 et seq., 270 et seq.; H. Lewald, Beitrace zur 
Kenntnis des romisch-agyptischen Grundbuchwesens IN ROMI9CKER ZEIT 
(1909). See the review of these last two hooks by Mitteis (1909), 30 Sav. Z. 
Rom. 457; see also Mitteis, Reichsrecht 465, 480, 493, 514-517, 532. 

54. On the origin of the notary and his role in later Antiquity, see Mitten, 
Reichsrecht 52, 95, 171; Druffel, Papyrolocischb Studebn zum byzanti- 
msCHBN Urkundenwesbn (1915); Stbinwbnter, Bbitrage zum offent- 
lichen Urkundenwesen der Romer (191 5). 

55- goldschmtdt 390. 

56. Pestuka (Fran kish>— "staff." See supra n. 38. On the Babylonian hvkannu 
see Kohler and Wenoer 60. 

57. See Brunner, Carta und'Notitia, Commentationes phihlogae in honorem 
Theodori Mommseni (1877} 570, 577, repr. 1 Abh. 458, 469. 

58. Goldschmidt 151; Brunner, he. ctt. 458, 466 et seq. 

59. Pollock and Maxtland II, 223 et seq.; on the seal see the articles by 
Hazelrine, Pollock, and Crane in Ass. of Amer. Law Schools, Sel. Readings 
on the Law of Contracts (193 1) 1, 10, 598. 

60. GoLDscHMrr/r 97, 99; n. 14a, 390. 

6r. The distinction between ins dispositivutn — "permissive rules'* — and ms 
cogens — "mandatory rules," i.e., rules which cannot be contracted out by the 
parties, is common in civilian legal theory. I«s dhpositivum (stopgap law) will he 
applied when the parties have failed to provide for a contingency which has 
arisen and for which they should have provided and probably would have pro- 
vided had they ever thought of it. It is thus constituted by those rules of law 



« ] Forms of Creation of Rights 7 4 1 

which apply only where they have not been "contracted out" by the parties. A 
large number of the rules of the law of contracts and of the law of wills are of 
such character. The provisions, for instance, of the law of sales concerning the 
seller's "implied" warranty for defects of quality apply only where the parties 
have not made their own provisions for the case; in the law of wills the rules on 
lapse or abatement of legacies apply only where the testator has failed to provide 
for the contingency by dispositions of his own. 

Since the time of the Roman jurists it has been characteristic for the Civil 
Law that elaborate rules of stopgap have been established for the various types of 
contract of daily life, such as sale, donation, lease, contract for services, surety- 
ship, partnership, mandate, etc. All the modem Codes thus contain chapters re- 
spectively dealing with these various types of contract, giving for each those rules 
of stopgap law which apply in default of- different arrangement by the parties. 
As the statutory rules correspond to the intentions of typical parties, few terms of 
a contract need to be spelled out expressly. Contractual instruments can thus be 
shorter and simpler than in this country where contractual terms are not so 
easily assumed to be "implied." 

62. Supra, n. 50. 

63. Following the model of the Code of Justinian (C. 8. 18. 12) a legal 
mortgage is given to the wife in the assets of the husband by the French Qvil 
Code fart. 2121) and numerous other codes patterned upon it, e.g., those of 

' Belgium, Italy, Spain, Mexico, Brazil, and Quebec. It is meant to protect those 
claims for damages which may arise for the wife against the husband, especially 
out of the management by him of the community fund and certain assets of the 
wife. The mortgage arises automatically upon the marriage, without need of re- 
cordation, and with priority ovei certain others of the husband's creditors. Cf. 
2 PiANiot, Trattb blementairb de droit crvn. (3rd ed. 1949) 1237 ei- se<f-; 
T. Rohlnng, Hypoihek, 4 Rechtsverclbickendes Hakdwortsrbuch (1933) 
274. 

64. The ordinary lease (iocotio conductio ret) of Roman law was a personal 
contract. Hence, if the lessor sold the land, the lessee had no right of continued 
use as against the purchaser but only a claim for damages against his lessor. In 
contrast, emphytheusis was the special kind of inheritable lease of land which 
gave the lessee a property interest in the land which he could enforce against 
everybody. It originated in Greece and, in the fourth century, became fused in a 

faacrical and modem manner, with the ager vectigoUs, i.e., the Roman long-term 
ease (tws peryefwutw) m public lands. Cf. Kohlkr and Wbnger 228; Buck- 
land 275; Webbr, Agrarcescjhichtb 170 ef seq.; Mitteis, Zur Geschichte 
der Erbpacht im Altbrtum (1901). 

65. Perpetual rents were a common institution of medieval law. While canon 
law prohibited the lending of money upon interest, it did not prevent a person 
having capital to invest from "purchasing" a perpetual rent, secured by the possi- 
bility of levying execution upon a piece of, mostly urban, land in the case of 
nonpayment, and subject to termination upon repayment of the capital to .the 
purchaser. Other perpetual rent charges came into being when ancient feudal and 
manorial claims to services or deliveries in kind were transformed into money 
rents. In France all these ancient charges were swept away by the Revolution of 
1789. In Germany and the other countries of central and western Europe they 
were made subject to speedy amortization in the course of the so-called 'liberation 
of the soil" ("Bodenbefreiuiig," j^ f„^ a n< g 7 ) t which had been one of the 
principal postulates of Liberalism as it had become dominant in the nineteenth 
century. (Cf. Hbdbmann II, part ii, 9, 27.) The law of real property was re- 



7 4 2 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

organized in a way which excluded the creation of new perpetual rents. To a 
strictly circumscribed and narrowly limited extent their creation was permitted 
again for certain special purposes by the German Civil Code of 1896 ($§ 1 105- 
1 112, 1 199-1203) and a few special statutes of later date (see M. Wolff, Sach- 
enrbcht, 8th ed. 1929, 307). 

66. On the freedom of sexual contract in Ptolemaic-Roman Egypt, see J. 
NrrzoLD, Die Ehe in Agypten zur ptolemaisch-romischen Zbit (1903). 

67. Roman institutions of this kind were arrogatio (transaction to establish 
paternal power over an adult man not previously subject to the paternal power of 
any other paterfamilias'), acbptio (transaction to transfer parental power over a 
filiusfamilias by one -paterfamilias to another), and emancipatio (remission of a 
person from parental power). Similar institutions were common in Antiquity; cf. 
Robert H. Lowie, Adoption, in 1 Encyc. Soc. Soi. 459, 463 (literature). On 
Germanic laws, see Huebner 660; L. Talheim, Adoption in 1 Pauly-Wissowa 

68. Cf. supra a. 51. 

69. As to these "special funds" see Huebner 181. 

70. Weber's principal sources for the following presentation of the role of 
contract in sex relationships seem to have been J. Kohler, Zw Urgesckickte der 
Ehe (1897), 12 Z.F. vgl. Rw. 186; W. Wondt, Volkerfsychologis (1917). 
vol. vii; and, above all, the book by his wife, Marianne Webbr, Ehefrau urtD 
Mutter in dbr Rechtsentwicklung (1907). The bibliography in Weber's 
Wirtschaftsgbschichte (1923) 42, n. i, does not list Westbrm arch's His- 
tory of Human Marriage, 3 vols. (5th ed. 1921). The more recent literature 
is listed in the bibliography following Robert H. Lowie 's article on Marriage in 
10 Encyc. Soc. Sci. 146, 154, to which should be added G C. Zimmerman, 
Family and Civilization (1944); Robert Briffaxjlt, The Mothers (1927); 
W. Goodsbll. History of Marriage and thb Family (1934); and P. Ko- 
schaker, Die Eheformen der Indogermanen, 1 1 Z.p. ausl. u. internat. Phivat- 
RBcht (1937), Sonderheft 121. 

71. The question of whether wife purchase has really been the "normal form 
of marriage" in primitive or archaic civilizations cannot be regarded as definitely ' 
settled. The results of the most recent research have been summarized by Ko- 
schaker (loc. cit. Archiv oribntAlny 210, 21 1) as follows: "Many ancient laws 
know a duality of marriage forms. It has long been known to have existed in 
Roman Law and more recently it has been found to have existed also in several 
other laws. One of these forms is characterized by the fact that no price is paid 
for the bride. This kind of marriage for which no special formalities ate pre- 
scribed, is basetl in the last resort upon the consent of the spouses. On the other 
hand, howsver, the husband does not acquire marital power over the wife, and 
the children succeed to the mother to whose family they belong. . . . The normal 
form, however, is that kind of marriage in which the husband pays a 'bride price' 
and acquires marital power over her. The first-named type of marriage is the 
exception which occurs only in certain special type-situations, as, for instance, 
marriage between the abductor and the woman abducted by him, or the marriage 
with the woman who is the sole heir of her ancestor and through whom the husband 
enters the wife's family; in other words, situations in which, for one reason or 
another, the marriage with marital power is not suited for the particular purpose. 
An exceptional position is occupied by mature Roman law where marriage with- 
out marital power appears as the normal type. That in earlier times the situation 
may have been different and that in Rome the marriage without marital power 



ii ] Forms of Creation of Rights 7 4 3 

was to serve similar functions as in other laws, is possible, but impossible to prove 
from the fragmentary source material. . . . 

"[As to marriage by purchase] we find in the literature an almost hopeless 
confusion. I could mention scholars of several nations of whom everyone main- 
tains that marriage by purchase may certainly have existed among other peoples, 
but that it is absolutely impossible as to his own nation that it should ever have 
been so barbaric as to purchase women like merchandise." 

Cf. also the recent articles by R. Kosder, Die Raub- «. Kaufehe bei den Ger- 
manen (1943), 63 Sav. Z. Gbhm. 62; Die Raub- u. Kaufehe bei den Hellenen 
(1944), 64 Sav. Z Rom. 200; Die Raub- u. Kaufehe bei den Rdmern (1947), 
65 Sav. Z, Rom. 43. 

72. As to Hindu forms of marriage, see Jolx.y, Obkr die rbchtliche Stel- 
iung deh Frauen bei den alten Indbrn (1876); also, by the same author, 
Rbcht und Sittb (1896, rransl. hy G, Losh, 1928) 49. As to Roman marriage 
forms, see supra n. 24. The statement by jolly (Rbcht und Sittb 51) and 
Westermarck Cop. tit. 404) notwithstanding, if cannot be regarded as proved that 
marriage by purchase was the specifically plebeian form of marriage; cf. supra n. 
71; also 1 Howard, History of Matrimonial Institutions (1904) cc. 4 and 
6, esp. p. 264. 

73. Service marriage: see Wbstbrmarck, op. tit. 491. 

74. On trial and companionate marriage in Hellenistic Egypt, see Mitteis, 
Reichshecht 223. 

75. On prostitution see, in addition to the literature stated supra, n, 70, 
Weber, General Economic History c, 4 § 2, and May's article q.v. in 12 
Encyc. Soc. Set. 553, with literature cited there. 

76. Hetaera (Greek): girl companion, ranging from the common harlot to the 
geisha-like woman companion of refinement and education, often contrasted with 
the commonly low status of the legitimately married wife. The hetaerae gave the 
Greek men that intellectual stimulus which they did not find in the family. Greek 
life would have been unthinkable without tht/?i. Contact with them was not re- 
garded as socially disreputable (Lamer, Woutefijuch uer Atjtike [3rd ed. 
1950} q.v., where one can also find a list of historically famous hetaerae, such as 
Aspasia, the companion of Pericles); see aSsc H. Light, Liebb und Ehe in 
Griec hen land (1933). Bay idere — Hindu dancing girl. 

77. Cf. Buckland 128 et. seq.; Jors A(\'» Kunkel 282 and literature cited 
there and p. 4 1 7. 

78. Under the Prussian Cae of 1794. 

79. On divorce in Rome, see z Friedlander und Wissowa, Sittenge- 
schichte Rqms (9th ed. 1919) 283. 

80. See Jolowicz, 125 et seq., 248 et seq.; Buckland 324; for further litera- 
ture, see Jors and Kunxel 307, 327, 419, 421. 

81. Cf. Brbntano, Erbrechts* CLmK '1899) 198 et seq,; Rheinstein, 
Decedents' Estates i i et seq. and literature ci ed there and at p. 412. Signifi- 
cantly, freedom of testation has now been limited in favor of needy dependents 
even in England by the Inheritance (Family Prevision) Act, 1938, 1 & 2 Geo. 
6 c. 45. 

82. Letters of Napoleon to his brother Joseph, King of Naples, dated 8 March 
and 5 June 1806, 12 Corrssvondencs de Napoleon I" 167, 432; Rubin- 
stein, Dbcbdbnts' Estates 17, n. 30. 

83. On the following, see the literature ciscd in Weber's V/irtschapts- 
cbschichtb 85, n. i: Cairnes, Thb Slave Power (1862); E. von Hallb, 
Baumwollproduktion und Pflanzungswirtschaft in dbn nordamerikan- 



7 4 4 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

ISCHBN StiDSTAATEN (2 vols. 1897, 1906); H. J. NlEBOBR, SLAVERY AS AN IN- 
DUSTRIAL System (1900); B. du Bois, Thb Suppression op the Aprican 
Slave Trade (1904); G. Knapp, Dib Landarbbttbr in Knechtschapt und 
FRfiniBrr (2nd ed. 1909); see also the articles in 14 Encyc. Soc. Sci. 73 and 
literatuie cited there at p. 90. 

84. Meexa in thb Latter Part op the ioth Century (1888; transl. 

193 O, p- 14- 

85. Noxae datto (Latin) — the surrender of a person, animal, or inanimate 
thing by which the father, master, or owner frees himself from the liability cre- 
ated by the child's, slave's, or animal's misdeed or the "act" of his spear, ax, or 
other thing. It existed in Rome and was widespread in archaic laws. 

86. Cf. Girard, Lbs actions noxales (1888) 62, and the review of this 
book by Kipp in 1 o Sav. Z. Rom. 398. 

87. As to Rome, see Weber, Agrargeschichte 114-117; in Prussia, legis- 
lation aiming at the abolition of land encumbrances standing in the way of in- 
tensive cultivation started in 171 7, with an Edict of King Frederick William I. 
It was continued by the Prussian Code ("Allgemeines Landrecht," abbrev. ALR) 
of 1794 and was vigorously promoted after the" defeat of the Prussian Army in 
1806 during the administration of Baron vom Stein. Final regulation was initi- 
ated after the revolution of 1848 by the Regulation Law of 2 March 1850. See 
F. Guanann, Bauernbefreiung in 2 Handw6rterbuch dbr Staatswissbn- 
schapten (4th ed, 1 924) 378, 544; G. F. Knapp, Die Bauernbepreiunc und 
der Ursprung der Landarbbitbr in dbn alteren Teilen Preussens (1887); 
A. Mettzen, Der Boden und der prbussische Staat (1868); Skalweit, Guts- 
hetrschaft und Landarbeiter in Deutschhmd (191 0, 35 Schmollers J. B. 1339; 
Hbdbmann II, 34, and literature cited there. 

88. That is, organizations to promote the settlement of German farmers in 
the predominantly Polish regions of the eastern provinces cf Prussia as constituted 
before 191 8. 

89. This statement is correct as to the Carolingian empire hut must be qual- 
ified for the later period. The "tribal" laws had lost their significance throughout 
the empire at the latest in the thirteenth century, if not earlier; cf. C. Calisse, 
H i story of Italian Law, 8 Continental Legal History Series (1928) 18, 24, 
57, 97, 100; Hobbner 2—4; K. Neumeyer, Deb gbmbinrbchtlichb bnt- 
wicklunc des intbrnationalbn Privat- und Strafrbchts bis Bartolus 
(1901) I, 94, 15;; E. Meijeis, L'histoerb des principes pondamentaux nu 
droit international prtvb a parttr du Moybn age (Recueil des cours, 
[1934] III, 558); BrunnerI, part it, 382, 399. 

90. Cf. Calisse, op. tit, 127-132, 165, 177; Neumeyer, op. cit v I, 159; 
Engblmann, of. tit. (1938) 97; Meijers, Ioc. at., 547, .560. 

91. On the 'law communities" and their development, see Planttz 176, and 
literature stated there. 

92. On this characteristic feature of medieval law see Pollock and Matt- 
land I, 234-240; II, 182; Holdsworth II, 35-40, 211, 379r 4»7t 464-466, 

562; HtlEBNER 4, 88-92, 96, 98, I02, 189, 334-341; A. EsMEEN, CoURS SLS- 

mbntairb d'histoire du droit Francais (1925) 20, 159, 174, 221, 262-263, 

280-282, 344. 

93. See Mommsen 318, 322; Jolowicz 2;. 

94. Cf. Brissaud, History op French Private Law (Howell's tr. 1912) 
900; Brissaud, History op I'pbnch Public Law (Gamer's tr. ;gi5) 548; 
HedbmannI, 39,41. 



i* ] Forms of Creation of Rights 7 4 5 

95. Weber means the point of view of the modem continental jurist, for 
whom, in theory, all law is contained in the codes and statutes. 

96. A. Heusler, Deutsche Verfassuncsgbschichte (1905) 138. 

97. Recht der Hawhcerker. In Germany and other countries it has become 
customary to refer to the sum total of those rules of law which relate to the 
crafts and industries as Gewerberecht, droit industrial, diritto industrials. In Ger- 
many a part of these rules has been combined in a special code, the Gbwerbs- 
ORDNUNCof 1869. 

98. Institutionen des deutschen Privatrechts (1885/86). 

99. Mirror of Saxon Law (Sachsenspiegel), treatise on the law of Lower 
Saxony, by Eike von Repgow, written between 121 5 and 1235. Cf. infra, sec. 
1V.-3. Glosses have been added since the early fourteenth century. The extensive 
literature on the Sachsenspiegel is listed in Planitz 181. 

100. Quiritarian law (ius qittritium^), the law of the quirites, i.e., those who 
were members of the sihs (g««teO o£ which the Roman community seems to have 
been composed in its oldest period; in later times the term ius quiritmm is fre- 
quently used as a synonym of ms civile as contrasted to ius honorarium and iws 
gentium, 

101. On the following see Weber's Agrargeschichte and his article on 
Agrargeschichte, Altertum, in 1 Handworterbuch der Staatswissenschaften 
(3rd ed. 1909) 52; also Rostovtzev. 

102. Fidejussor — surety; hypotheca — mortgage. On the fraes see literature 
* stated by Jobs and Kunkel 213, n. 4. 

103. On the relationship between patron and client, see Bucxland, 89 et 
seq., 375. 

104. Action against the shipowner upon obligations contracted by the master. 

105. Receptum nautarum, cauponum et stahulariorum — bailment by water 
carriers, innkeepers, and stable owners. 

106. On fides see Kunkel, Fides als schopferisches Element im romischen 
Schuldrecht (1939) 2. Festschrift fuh Kqschaker i. 

107. Loss of certain civil rights, including the right to make a will. 

108. Roughly corresponding to the trust .without, however, implying a right 
on the beneficiary's part to pursue the res into the hands of third purchasers. 

109. A future interest created by imposing upon a testamentary devisee or 
legatee a personal obligation upon a certain term or condition to transfer the res 
to a third beneficiary. 

1 1 o. These were primarily those unmarried and childless persons whom Au- 
gustus, for reasons of population policy, had declared to be either totally or par- 
tially incapable of receiving property by will. — Lex lulia de maritandis ordinibus, 
of 18 b.c., and Lex Papia Poppaea of a.d. 9. 
' in. Mommsen 15. 

112. On the following, see Gierke, Genossenschaftsrecht, the classical 
work on the history of associations and juristic personality. The most significant 
English contribution is Maitland's Introduction to his translation of portions of 
Gierke's work, published as the Political Theory of the Middle Ages 
(1900) and his essays in 3 Papers 210 et seq. (repr, s.t. Selected Essays, 
1936). The leading discussion of the development of juristic persons in Rome is 
Mitteis, I, 339. The most recent comprehensive presentations •are given in 

SCHNORK V. CarOLSFHLD, GeSCHICHTE DER ^IRISTISCHEN PERSON (1933) arid 

H. J. Wolf, Organschaft und JujusnscHB Person (1933/34). For Rome, 
see Duff, Personality in Roman Law (as to which, see Daube, 1943, 33 
Journal of Roman Studies 86, and vol. 34, p. 125); for further literature on 



746 ECONOMY AND LAW (SOCIOLOGY OF LAW) [Ch. Vlll 

Roman law, see Jors and Kunkel 73 et sea., 400/401; and on medieval law, 
Planitz 151. As to Gierke's theories see also Lewis, The Genossenschapt- 
Thbory op Otto von Gibrke (1935); °n "theories" of juristic personality see 
F. Hallis, Corporate Personality (1930). For a survey, see C. S. Lobingier, 
The Natural History of the Private Artificial Person (1939) 13 Tulane L. Rev. 

41- 

11',. On reprisals 'cf. Jessup and De£k, 1 3 Encyc. Soc. Sci. 1 5 and literature 
indicate? inert-. 

1 :<i. Rsus:,EJ=, op. c';t. (1885/86). 

ii-;. On the origim and development of the principle of majority decision, 
see K .'jut ■. A'.zymk \ -, i-j Encyc. Soc. Sci. JJ and die literature indicated there. 

ii-' The endow* 710m 1 (Stifiung) hai been recognized as a special form of 
juristic ;* rson especially in modern German law (cf. Civil Code of 1896, §§ 8c- 
88), v. : ; .-' .:e it his been defined as Follows; "Stiftung is an organization for the 
Pursu.r .»i certain denned purposes, which does not constitute an association of 
WiTson; uc is endowed with justice personality." Cf. Enneocerus 274; see also 
3 Mav". -\r> Pavers 28 a, 356, where he compares "Institution" or "Foundation" 
with ,r Ar stair," saying (p, 357): "I believe that the English term which most 
ciosel;- tAj-fte spends to tht: 'Anstalt' or the 'Stifrung' of German legal literature is 
'a charity.' in fhe sense of 'charitable trust.' " 

: 1 ; . T/his legal concept of "Anstalt" is being used particularly in modern 
Ger-nan 'administrative law. Cf. W. Jellinek, Verwaltungsrecht (1928) 
174. 

118. Cf. Gierke, Privathecht I, 458. 

119. Cf. Hl'ebner 139-146, '150, 235; 3 Maitland, Papers 336, 361, 377. 

120. At the time Weber wrote the general statement of the text, it was doubt 
ful whether a community of heirs had ever existed in Rome. The insufficient evi- 
dence has now been strongly fortified, however, through the discovery, in 1933, 
of a hitherto unknown part of the Institutes of Gaius. See Jors and Kunkel 34, 
240; Schulz, History 105/106. 

iii. As to the sallowing, see Webek's Gbschichte der Hanoelsceseix- 
schaften im Mittelalter (1891); Schmoller, Die geschichtliche Entwickhtng 
der U niernehmung in Schmoller's Jahrbuch, vol. 14 (1890), p. 1035, vo!. 15 
(1891), p- 963, -vol. 16 (1892), p. 731, and vol. 17 (1893), p. 359. Holds- 
worth viii, 192. C. T, Carr, General Principles of the Law of Corpora- 
tions (1905), c. ix, repr, s-t. Early Forms of Corporateness in (1909) 2 Sfi. 
Ess. Anclo-Amer. Legal Hist. 160; W. Mitchell, Essay on the Early 
History of the Law Merchant (1904) c. v, repr. s.t. Early "Forms of Partner 
ship 3 Sel. Ess, 182; S. Williston, History of the Law of Business Corporations 
before i8oo (1888), 2 Harv. L. Rev. 105, J49, repr. 3 Sel, Ess. 195; n.Ko A. 
B. Du Bois, The Enclish Business Company after the Budele Act, 1720- 
1800 (1938); S, LrvERMORE, Early American Land Companies (1939); 
Goldschmidt; P. Rehme, Geschichte des Handelskechts (1914); K. Leh> 
mann, Die geschichtliche Entwicxlung des Aktienrkchts bis zu.v Gij>e 
tjb Commerce (1895). 

122. Societe en norm commandite (French) — that form of business association 
in which one or more partners with unlimited personal liability combine with one 
or more partners of limited liability; as to modem law, see French Commercial 
Code, art. 23-28 (Code de Commerce, 1807); German Commercial Code 
§§ 161-177 (Handelsgesetzbwch') . 

123. "Limited liability company" (Gesellschaft mit beschrankter Hafiung, 
G.mh-H.)— a business corporation which does not appeal for its capital to the 



(1 J _ Forms of Creation of Rights 7 .-; 7 

public and which atx? not have shares sustain tor being bought ami sold a; ths 
stork market. Invented in Germany (Law 01 io March 5898, B.C. Bl. -Sg-3, 
370), the G.m.b H. ha; been adopted in .numinous other countries. Cf. W. Ha" 
stein, Die G-MflLtLrf? rati fcescliriinfcter HiifUtrg in den AuslandsTechten (1939), 
13 Zbitscmbift *. asisl. u. intern. Prxvatkecht 34; on the Gentian G.m.b.H. 
see Manual of Ghrman Law (Great Britain, Foreign Office 1950) 247. 

114. PeculiviK- — a fund legally belonging to the head of a house (jpater- 
famiiias), but ieft by him for separate management to a member of the house- 
hold, such as a son or slave. For debts incurred by the member of the house the 
paterfamilias was liable in the praetorian actio de peculio, but he was allowed to 
limit his liability to an amount corresponding to the value of the feculium (dum- 
taxat de peculio~). See Micoljjbr, PictiLE et capacity Patrimonialb (1931). 

125. Institutes 3.16 pr. and Pacinian in Digest 45.2. 11.1-2. This rule 
,. applied only to the promise of a divisible performance. The obligation of several 

debtors to make an indivisible performance seems in classical law to have been 
one of Joint and several liability even without having been created by one joint 
promise. Our information of details is incomplete, however. See Kerr Wylie, 
Solidarity and Corhbality (1925); Thayer, Correality in Roman Law (1943) 
1 Seminar ii. 

126. Cf. A. Arias Bonet, Soci&tas fuhlwanontm (1949), 19 Anuario de kis- 

, TORJODEL DBRECHOESPANOL 2l8. 

127. Digest 43. 9.1. — injunction issued by the praetor to protect the lessee 
of the public lands and his associates in his possession. 

j 28. The partner in a societe en nom commandite (swpra n. 122), who, in 
contrast to the "personally liable partner or partners" is not liable for the debts 
of the company beyond the amount of his share. 

1 29. This kind of establishment of the state as a juristic person of private law, 
in which the state as use is regarded as separate from the state as sovereign, has 
been worked out particularly in German theory and practice. It stands in contrast 
to the French and the Anglo- American systems in which the state is regarded as 
the sovereign even where it enters upon contractual relationships with private 
persons or is engaged as the owner of property. In consequence or this latter ap- 
proach in the French system, the legal relations of the state as contracting parry 
or as property owner are subject to a body of rules which, at least in theory, are 
different from those of ordinary private law. Also, in both the French and the 
Anglo-American systems, the state cannot he sued in the ordinary courts in the 
same way as a private person. In France actions against the state must be brought 
in the administrative tribunals, which are separate from the ordinary courts, have 
the Council of State (Conseil d'£tat) as their own supreme court, and are not 
subject to control by the Court of Cassation, the supreme court in the adminis- 
tration of civil and criminal justice. Cf. A. Umler, Review of Administrative 
Acts (1942); Goodnow, op. tit.; F. Blachly and M. Oatman, Administra- 
tive Legislation (1934), and Introduction to Comparative Government 
(1938); R. D. Watxins, The State as Party Litigant (1927). 

On the historical deTelopment of the theory and practice of the state as nsc 
. see Otto Mayer, Deutsches Vbrwaltungsrecht (1896), I, 47; Fleiner, 
Verwaltuncsrecht (2nd ed, 1912) 34; Hatschek, Die rechtliche Stel- 
lung des Fiscus im Burgerlichen Gesetzbuche (1899) 24; see also S. 
Bolla, Die Entwicklunc des Fiskus ztim Privatsechtssubjext (1938); G. 
Jellinek 383; Kelsen, Allegemeine Staatslehre (1925) 240. 

The basic investigations into the history of the juristic construction of the 
state in general are the following works of Otto v. Gierke : Political Theories 



7 4 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

of the Middle Ages (Maitland's tr. 1900), esp. c. viii; Natural Law and 
the Theory of Society (Barber's tr. 1934); also The Development of 
Political Theory (Freyd's a-. 1939), passim. (The former two books are parts 
of Gierke's Deutsches Genossenschaftsrecht [1881 et seq.]; the latter is a 
translation of his Johannes Althusius und die Entwicklonc der natur- 
rbchtlichen Staatstheorien [1880].) * 

130. This statement needs qualification. In the first place, there was never a 
time in English medieval law when a writ could He against the king. This fol- 
lowed from the fundamental .theory, fully stated by Bracton, that the king could 
not very well issue a writ against himsrlf or be summoned as defendant in his 
own court. In the second pla^e, however, it came to be recognized in the thir- 
teenth century that the king, being subject to the law as weJl as being the foun- 
tain of justice and equity, should riot (or rather, ought not *to) refuse to redress 
wrongs or satisfy claims againsL ; ini. Such redress or satisfaction was sought 
through petitions addressed to the king or his council; but a petition, if given 

. effect to, was substantially a remedy of grace and not one of right. Nevertheless, 
during the fourteenth century; petit ioi« began to be distinguished between de- 
mands for some bonuses ot sc .-i; new remedy on the one hand, and claims 
embodying a definite legal right, enforceable bv ".lit against anyone but the 
king. When this distinction was drawn, the "petition of right" grew into an 
effective rernedy against the Crown, rhough perhaps not completely so before the 
fifteenth century. In the fourieonth century, the pesition was rather vague: al- 
though the petition of right had as yet not become, at any rate technically, .a 
complete legal remedy, the king seems in practice almost always to have repaid 
his debts in one way or another. Such is the only conclusion that can be drawn 
from an examination of the fourteenth-century cases. See Ehrlich, Proceedings 
against the Crown, Oxford Studies in Social and Legal History VI, 120; Pol- 
lock and MArTLAND 515; Holdswohth IX, 1 1 . As regards foreign merchants, 
their position was in this respect the same as that of the king's subjects. Indeed, 
it may actually have been better because of the close and friendly business rela- 
tionship between the foreign merchants and the king. It is true that later some 
doubts arose whether aliens could, or could not, sue at common law; this, how- 
ever, did not affect their right in the fourteenth century to address themselves to 
the king, to the council, or to the chancery either to recover a debt from the 
Crown or, indeed, for the redress of any other wrong. See Hold:) worth loc.cit., 
94-95; Pollock and Maitland 464-467; Brodhursr, The Merchants of the 
Staple, Select Essays in Anglo-American Legal History 16 et seq. The 
repudiation of the king's debt to the Florentine bankers took place in January 
1345. Edward III owed the leading Florentine houses, the Bardi and the Peruzzi, 
1,500,000 gold florins (£500,000) so that they were now reduced to bankruptcy 
— "a catastrophe which plunged all Florence in distress." See Schanz, Englische 
Handelspolttik (1881) I, 113, and authorities there cited; Ramsay, A His- 
tory of the Revenues of the Kings of England (1925) II, 189. 

131. In this connection it must be kept in mind, however, that the guaranties 
of legal security and redress obtainable against the state in the administrative 
tribunals are in no way less effective than those obtainable against private persons 
in the civil courts. The former are as truly courts as the latter, and the Council of 
State is looking upon its functions as judicial ones no less than the Court of Cassa- 
tion. Cf. Ogg and Ztnk, Modern Foreign Governments (1949) 583. 

132. While no such incident could be verified for the reign of King Frederick 
William I (1713-174©), Margrave Johann is reported to have stated, in a "r$fess" 
concluded with the estates in 1552, that "in contravention to existing usage, some 



U] _ Forms of Creation of Rights 7 4 9 

have been so impudent against our judgments as to appeal to the Imperial Cham- 
ber Court and thus to tie our hands with the result mat quite often one family 
completely squeezes out the other with such chicaneries.' Hence, anyone who 
should henceforth date to make such an appeal should be fined zoo fl. and lose 
his cause- (Stolzel, Brandbkburg-Preussens Rechtsverwaltung (1888) 
I, 214.) On the Imperial Chamber Court, see infra, sec. vi, n. 51. 

1 33. See 2 Mommsbn 461 et sea.; also Wenger 56. 

134. Fiscus Coesaris was, in the Principate, the public treasury in so far as it 
was managed by the emperor; as such it was distinguished from the emperor's 
private assets (res privata) and the special crown domains (.patnmonmm 
Coesaris); cf. 2 Mommsen 998; Mittbis 347, Vassalli, Concetto e natura 
del fisco (1908); Rostovtzev, 55, 172, 179, r86, 3*1, 326, 343, 357. On the 
fisc in the modem German system, see supra n. 1 29. 

135. Seeswpra, n- 102. 

136. Auflage (Germ.) — Institution of German law practically amounting to a 
trust without a beneficiary; it can be used to charge the beneficiary of a testa- 
mentary disposition with a burden to be discharged for a charitable purpose; cf. 
German Civil Code, § 1940. 

1 37. In accordance with the great concern for the care of the soul after death, 
it was a widespread practice to insure by contract the performance of sacrifices 
after death. "If for this purpose [a person] made over part of his alienable estate 
to a priest, the law allowed him to attach to the grant a condition of forfeiture 
valid in perpetuity. Thus as*5oon as the priest or his successor in office ceased to 
offer up the stipulated sacrifices he was to be deprived by the public authorities of 
the property which should then be given to another." To tkis description of the 
Egyptian transaction, E. SeidI (Law, Egyptian, 9 Encyc Soc. Sci. 209, 210) 
addsr "Whether there can be seen in such and similar trusts of property begin- 
nings of the incorporated foundation is, however, still doubtful." . 

138. 2 Gierke, Genossenschaftsrbcht 526, 962. 

139. On the following, see Pollock and Maitland I, 480; R. Sohm, 
Kirchenrbcht (1892) 75; U. Stutz, Die Eicbnkirche (1895); Gbschichte 
dbs ktrchlichen Bbnefizialwesens (1895); art. Eigenkhche in Realenzyx- 
lopadib fur protest. Theolocie, and art. KiTchenrecht in 3 Holtzbndorff- 
Kohler, Enzyxlopadie der Rechtswissenschaft (1914) 301; Wbrminghoff, 
Verfassuncsgbschichte der deutschen Ksrche im Mittbl alter (191 3); 
also Torres, M., El 6rigen del iistema de iglesias propria* (1928), 5 Anuario de 

KTSTORIA DEL DERECHO BSPANOL 83; also L.ESNE, HlSTOIRfi DB LA RROPRIBTE 
ECCLBSIASTiatlB EN FRANCE (1910/2^/36). 

140. Cf.; v. Schwerin, Grundzuce dbr deutschbn Rechtsgeschichtb 
(2nd ed. 1941), §5 30, 54, and literature stated there. 

141. See 2 Gierke, Gbnossbnschaftsrecht 958. 

142. See supra n. 112; also Joks and Kunkel 74 and literature stated there 
and at p. 400. 

143. Mittbis I, 348, n. 2. 

144. According to Mitteis (loc. cit. supra n. 112), juristic personality could 
not be acquired by private organizations in any way other than by grant through 
imperial charter. This notion is generally rejected in the recent literature, where 
it is maintained that it was entirely left to the discretion of the organization itself 
whether or not it wished to have rights and obligations of its own and distinct 
from those of its members. "The notion of an express grant of juristic personality 
was totally alien to Roman law." The term corpus habere is said to mean no more 



j 5 o fx;ong:viv axd l/,w (. sociology or i..v---0 ! Ch\ \/lll 

than "to form a cluSj." Kunkel hi jobs and K(j>xe,_, ,'j ; see ai ;j .> *ow Brr>ssio;t 
ia i Studs Riccodono 317. 

145. Mitteis 347, 11. 2.1. 

146. About the Hellenic 'phra tries'' 3rd similar voliusiaty organizations see 
B. Leist, 103-17;; Bonner and Smith i 18 n. 3; p. 160; anil R. Bonnek, As- 
pects of Athenian Democracy O933) 9', I34 t 157- These last two works 
were not yet accessible to Weber. The extensive literature on totemism and 
totemistic clans is stated in 14 Encyc. Soc. Sci. 660. Weber seems to have relied 
primarily on W. Wundt's Elements der Volxerpsycholocie (1912) tr. by 
Schaub, 1916), c. II. 

147. See Mommsen, Zwr Lehre von den romischen Korforationen (1904), 
25 Sav. Z. Rom. 45; also his Db collbciis et sodalitibus Romanorum 
(1843); Ugo Coll Collegia e Sodalitates (1913); Karlowa II, 59. 

148. See Mitteis 391; Kahlowa II, 62. 

149. For a survey of the numerous kinds of guilds, cult societies, funeral soci- 
eties, social clubs, etc., in Rome, see Kornemann, 4 Pauly-Wissowa 381. See 
also Mitteis I, 390, whose attempted distinction between organizations of public 
and of purely private character is being questioned by Kunkel (Jors and Kunkel 
75, n. 4). 

1 jo. On the collegium, mercatorum (later called mercuriales) see Mitteis 
392. The legendary date of Foundation is 495 B.C. 

151. Cf. Mitteis 393. 

152. Ager compascuus and arbitr'ta — see Weber, Agrahceschichte ;6, 12.0. 
1 S3- Mitteis 393; also E. Szanto, Die griechischen Phyten, (1906) Aus- 

gewahlte Abhandlungen 216. 

154. See j. Hatschek, Enclische Verfassungsgeschichte (1913) 87/8S. 

155. Weber, General Economic History 178. 
1 55a. See swpra, Part Two, cb. Ill, n. 3. 

1 ;6. The different needs as to liability are neatly accommodated by the 
German Law on Co-operatives (Genossenschaftsgesetz) of May 1, 1889 (RGB1, 
55), under which a cooperative may be established either with limited or un- 
limited liability of the members, and in the latter case either with or without a 
direct right of action of the creditors against the individual members. 

157. What is ineant are such state institutions as public insurance funds and, 
quite particularly, the institutions of the German system of social security (public 
funds for sickness, old age, unemployment, and industrial accident insurance). 

158. Maitland, "Introduction" to Gierke, Political Theory of the Mid- 
dle Ages (1900). 

Basic for the history of juristic petsonaliry in England are Maitland's 
Studies, referred to sufra n. 112, and Pollock and Maitland, Bk. II. cb. 2, 
§§ 12, 13; for additional recent literature, see the note on p. 239 of the 1936 ed. 
of Maitland's Selected Essays (ed. by Hazeltine, Lapsley, and Win field). 

iS9- Maitland, loc. cit. supra; also Hatschek, op. cit. (1913); Hatschek 
vol. I. 

160. Gierke, Genosse.nschaftsrecht II, 43-46, SS7- 

161. On the "corporation sole" see 3 Maitland, Papers (191 1) *io- 

162. See Blackstone I, 469; Holdsworth IV, 202 et seq, 

163. Hatschek I, 75. 

164. On "Zweckvermogen" see Maitland, Papers III, 359, repr. in Se- 
lected Essays 179, and German literature cited in die latter at p. 180, n. 2. 

165. For the validity of a testamentary disposition it was essential in Rome 
that the testator should appoint one or more persons as heii (fieres) or heirs, i.e., 



« ] Forms of Creation of Rights 7 5 1 

persons to whom the estate would pass in its entirety and who would become per- 
sonally liable for the debts of the testator. Provided there was a valid appointment 
of an heir or heirs, the testator could also make special provision for legatees. He 
could either provide that a specific asset of the estate should pass direcdy to the 
legatee (legatwrt per vindicationem') or that the legatee should be entitled to 
claim from the heir or heiis the delivery of a specific object or the payment of a 
sum of money or some other act of performance Qegatwnt per damnationem). In 
both cases it was necessary for the testator to comply with certain rigidly fixed 
formalities (presence of five witnesses and a libripem') and the validity of the 
legacy was hedged in by a variety of highly formalistic rules. In the later repuM:- 
can period it thus became usual to request the heir or some other person by 
formless precatory words (yerhis precativis') to make a payment to a third person 
or to give him some specific object. Such a request, which would frequently be 
stated in a formless letter Ccoditillvwi), could only be charged upon the con- 
science (Jidei contmissitm') of the person concerned, but would be unenforceable 
legally. For certain special kinds of fidei commissi! Augustus provided enforce- 
ment, although not in the regular procedure of the praetor but in the administra- 
tive cognitio of the consuls. Under his successors this way of enforcement was 
broadened until finally in the law of Justinian legatunt and fide: commissum were 
fused into one institution of regular law. Cf. Blickland; Soiim, Institutiones 
(ed. 1949) 634. 
* 166. Pollock and Maitland, Bk. II, c. Ill, § 7, cs^: .p. foo. 

167. On the laws of mortmain, see Hazeltine in 1 1 Encyc, Soc. Sci. 40 and 
Rubinstein, Decedents' Estates 399. 

168. On the history of ultra vires, see Holdswokth IX, 59. 

169. Legists— the late medieval scholars of temporal (Roman) law as distin- 
guished from the scholars of the ecclesiastical law, the canonists, 

170. On the development of the corporation m the periods of mercantilism 
and early liberalism, see Lehmann, op. cit. supra n, 121; W. R. Scott, Consti- 
tution and Finance of English, Scottish, and Irish Joint-Stock Com- 
panies to 1720 (1910-1912); }. Cohn, Die Aktiengesellschaft (192.); J. S. 
Davis, Essays rN the Earlier History of American Gjhp oration 5 (1917). 

171. On the juristic person (jper Sonne -morale) in modern French law, see 
M a itl and, 'Papers III, 312, repr. in Sel. Ess. 230, and literature listed there at 
p. 237. ^ 

On juristic persons in present laws generally, see Kunkel, juristiscke Personen 
('933). 4 Rechtsvehgleichendes Handworterbuch 560. 

172. Cf. Blackstone I, 123. "Persons also are divided by the law into either 
' natural persons, or artificial. Natural persons are such as the God of nature 

formed us; artificial are such as created and devised by human laws for the pur- 
poses of society and government, which are called corporations or bocties politic." 
Cf. also Bk. I, c. XVIII, where Blackstone says of corporations, on p. 468: "The 
honour of originally inventing these political constitutions entirely belongs to the 
Romans." 

173. On the history of the Bank of England, see Andre ades, History of 
the Banx of England (tr, by Meredith, 1909). 

174. On modern law of business corporations, see the worldwide critical sur- 
vey by W. Hallstein, Die Aktienrechte der Gegenwart (1931). 

175. The trustees whom a "friendly society" is required to have by the 
Friendly Societies Act, 1896, s. 25 (i), and who are the persons to sue or be 
sued, ibid. s. 94 (1), are, in fact, regular officers of the society. 



7 5 2 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

176. The authorization may be made generally by the rules of the club; cf. 3 
Encyc. Laws of Engl. (3rd edj 221. 

177. In nineteenth-century Germany the division of labor between the his- 
torians of Roman and German law developed into an emotionally affected contro- 
versy of political significance. To the Germanists the Roman law, by which the' 
legal system of Germany had been deeply affected since its reception in the fif- 
teenth century, appeared as the expression of a rigid, cold-hearted, and egoistic 
individualism, while Germanic law, of which English law was regarded as just one 
branch among others, was extolled as .the embodiment of a warm-hearted spirit of 
folk community. Among the principal representatives of this attitude was as great a 
scholar as Gierke, to whom the richness of forms of the German Genossenschaft 
(sodality) appeared as one of the most beautiful expressions of the peculiar spirit 
of Germanic neigh borliness, comradeship, and creativeness. In presenting the total 
body of medieval German private law in his Dbutsches PitrvATRECHT, he hoped 
to help re-Germanize the law of the country at the time when the new German 
Civil Code was just to take effect. The draft of this Code, Gierke had passionately 
attacked because of its alleged Romanism. The alleged contrast between the warm- 
hearted, "social" German and the cold and egoistic Roman law became a stock 
argument of those political. groups which tried to stem the tide of modem capital- 
ism and to preserve other, more patriarchic patterns of social structure, or to 
create a "new," romantically conceived community of socialist or racist pattern or 
of the kind vaguely felt by the enthusiasts of the German Youth movement. The 
National-Socialist party, in which all these streams converged, increased the odi- 
ousness of the Roman law by labeling it as being in some unspecified way a 
product of the Jewish mind. The substitution of a new, truly German law for 
Roman law was thus established as a basic postulate in Article 19 of the Party 
Platform (see Hitler, Mein Kamff, New York: Reynal and Hitchcock, 1940, 
pp. 686, 690), Under the National-Socialist government, the newly established 
Academy of German Law initiated efforts to draft a new German Folk Code 
(Dewtscfees Volksgesetzbuch*). The few parts which could be prepared before 
energies were diverted into other channels by the war indicate that the new law, 
if it could have been completed, might have constituted a well-drafted code likely 
to serve well the needs of modern life. It is difficult to see, however, in what 
respects it could have been of any peculiarly "German" character, 

178. These ideas of Weber's are developed in his General Economic His- 
tory. About the Russian Mb, cf. pp. 17-21; about Oriental laws, cf. p. 57; and 
about Hindu villages, cf. pp. 22-23; literature is stated on pp. 371/372. About 
compulsory organizations of craftsmen, see p. 136 and literature stated on p. 375. 

179. See Gierke, Genossenschaftskecht II, 3ooff, 457ff, 114, 93. 

180. Cf. Amira 27; Planitz 188, with further literature. 

181. See Gierxe, Genossenschaftsrecht II, 456, 

182. Cf. A. Voigt, Whtschaft und Recht, 2 Z. p. Sozialwissbnschaft 
(1911), o-ti. 99-i°8, 177-182, 238-249, 311-322, 387-397, 438-456; the 
same, Die wirtschaftHehen Giiter ah Rechte, 4 Archiv f. Rbchts- u. Wirt- 
schaftsfhilosophie (1913), 304-316. 

183. "Coactus voluit" (it is his wish, although coerced) — Romanist, phrase to 
describe the situation of an individual who has engaged in a legal ■ transaction 
under the influence of coercion, in contrast to the situation in which a person is 
usecT as the mere physical tool of another, for instance, where the latter forcibly 
grabs the former's hand and moves it so as to go through the physical motion of 
writing a signature. Cf. supra, Part Two, ch. I:4=(5). 



Hi] Emergence and Creation of Legal Norms 753 

hi 

Emergence and Creation of Legal Norms 



1 . The Emergence of New Legal Norms — Theories of 
Customary Law Insufficient as Explanations 

How do new legal rules arise? At the present time, they usually arise 
by way or legislation, i.e., conscious human lawmaking in conformity 
with the formal constitutional requirements, be they customary or 
"made," of a given political society. Obviously, this kind of lawmaking 
is not aboriginal; it is not the normal one even in economically or so- 
cially complex and advanced societies. In England, the "common law" 
is regarded as the very opposite of "made" law. In Germany, non-enacted 
law is usually called "customary law." But the concept of "customary 
law" is relatively modem; in Rome it did not emerge before the very 
late period; in Germany it resulted from Civilian docti me. Of such 
academic origin was especially that theory according to w^ich custom, 
in order to be law, must be actually observed, commonly believed to be 
binding, and amenable to rational treatment. 1 All the modern defini- 
tions, too, are but theoretical constructs. For purposes of legal dogmatics, 
the concept of customary law is still indispensable, however, provided it 
is used in such refined ways as those formulated by Zitelrnann or 
Gierke. 1 Otherwise we would have to confine our concept of law to 
statute law on the one side and judge-made law on the other. In my 
judgment, the violent struggle against the concept of customary law 
which the legal sociologists have carried on, especially Lambert and 
Ehrlich, is not only devoid of any foundation but also represents a 
, confusion between the legal and sociological methods of analysis.* 

However, matters are completely different with regard to our problem, 
viz., that of discovering empirical processes in which nonstatutory norms 
arise as valid customary law. On that problem the traditional doctrines 
tell us indeed little if anything. As a matter of fact, they are even in- 
correct where they purport to explain the actual development of law in 
the past, particularly in periods in which there was little or no enacted 
law. It is, of course, true that these doctrines find some support in late 
Roman as well as medieval conceptions, both continental and English, 
about the meaning and the presuppositions of consuetwh as a source of 
law.* There, however, the problem was that of finding an adjustment 



7 5 4 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

between a body of rational law claiming universal validity and a multi- 
tude of actually prevailing systems of laws of locally or personally limited 
application. In the late Roman Empire the conflict was between the im- 
perial law and the laws of the peoples of the provinces;' in England, 
between the law of the land (lex terras), i.e., the Common Law, and the 
local laws;* on the Continent it was between the "received" Roman 
law and the indigenous bodies of law. 7 Only the various particularistic 
bodies of law were classified by the jurists as "customary law," and in 
order to give legal recognition to customary law the jurists devised cer- 
tain tests of validity which customary law had to fulfill. This was a 
necessary step in view of the fact that the universal law claimed an 
exclusive applicability. But it would not have occurred to anyone to 
classify as customary law the English Common Law, which certainly 
was not statute law. Similarly, the definition of the Islamic ijma as 
the tacitus consensus omnium* is completely unconnected with "cus- 
tomary law" precisely because the ijma' purports to be "sacred" law. 



2. The Role of Party Practices in the Emergence and 
Development of Legal Norms 

Theoretically, the origin of legal norms might, as we have already 
seen, be thought of most simply in the following way: The psychological 
"adjustment" arising from habituation to an action causes conduct 
that in the beginning constituted plain habit later to be experienced 
as binding; then, with the awareness of the diffusion of such conduct 
among a plurality of individuals, it comes to be incorporated as "con- 
sensus" into people's semi- or wholly conscious "expectations" as to 
the meaningfully corresponding conduct of others. Finally these "con- 
sensual understandings" acquire the guaranty of coercive enforcement 
by which they are distinguished from mere "conventions." Even on this 
purely hypothetical construction there arises the question of how any- 
thing could ever change in this inert mass of canonized custom which, 
just because it is considered as binding, seems as though it could never 
give birth to anything new. The Historical School of Jurisprudence 
tended to accept the hypothesis that evolutionary impulses of a "folk 
spirit" are produced by a hypostatized supra-individual organic entity.* 
Karl Knies, e.g., inclined toward this view. 10 Scientifically, however, this 
conception leads nowhere. Of course, empirically valid rules of conduct, 
including legal rules, have at all times emerged, and still emerge today, 
unconsciously, i.e., without being regarded by the participants as newly 
created. Such unconscious emergence has occurred primarily in the form 



w ] - Emergence and Creation of Legal Norms 7 5 5 

of unperceived changes in meaning; it takes place through the helief that 
a factually new situation actually presents no new elements of any 
relevance for legal evaluation. Another form of "unconscious" emergence 
is represented by the application of what actually is new law to old or 
somewhat different new situations with the conviction that the law so 
applied has always obtained and has always been applied in that manner. 
Nonetheless, there also exists a large class of cases in which both the 
situation as well as die rule applied are felt to be "new," although in 
different degrees and senses. 

What is the source of such innovation? One may answer that it is 
caused by changes in the external conditions of social life which carry 
in their wake modifications of the empiiically prevailing "consensual 
understandings." But the mere change of external conditions is neither 
sufficient nor necessary to explain the changes in the "consensual under- 
standings." The really decisive element has always been a new line of 
conduct which then results either in a change of the meaning of the 
existing rules of law or in the creation of new rules of law. Several kinds 
of persons participate in these transformations. First we should mention 
those individuals who are interested in some concrete action. Such an 
individual may change his behavior, especially his social actions, either 
to protect his interests under new external conditions or simply to pro- 
mote them more effectively under existing conditions. As a result, there 
arise "new" consensual understandings snd sometimes new forms of 
rational association with substantively new meanings; these, in turn, 
generate the rise of new types of customary behavior. 

It may also be, however, that, without any such reorientation of be- 
havior by individuals, the total structure of social action changes in 
response to changes in external conditions, Of several kinds of action, 
all may have been well suited to existing conditions; but, when the 
conditions change one may him out to be better suited to serve the 
economic or social interests of the parties involved; in the process of 
selection it alone survives and ultimately becomes the one used by all so 
that one cannot well point out any single individual who would have 
"changed" his conduct. In its pure form, such a situation may be a 
theoretical construct, but something of the kind does actually occur in 
the selective process which operates between ethnic or religious groups 
which cling tenaciously to their own respective usages. More frequent, 
however, is the injection of a new content into social actions and rational 
associations as a result of individual invention and its subsequent spread 
through imitation and selection. Not merely in modern times has this 
latter situation been of greatest significance as a source of economic re- 
orientation, hut in all systems in which the mode of life has reached at 



7 5 6 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

least a measure of rationalization. The parties to the new arrangements 
are frequently unconcerned about the fact that their respective positions 
are insecure in the sense of being legally unenforceable. They regard 
legal enforceability by the state as either unnecessary or as self-evident; 
even more frequently do they simply rely upon the self-interest or the 
loyalty of their partners combined with the weight of convention. Prior 
to the existence of any coercive machinery, and prior even to the 
regulated enforcement of norms through the sib members' duty to 
participate in vengeance, the function later fulfilled by the "legal" 
guarantee of a norm was undoubtedly performed by the general con- 
vention that the person who was admittedly "in the right" could find 
others who would help him against an offender; and, where. some spe- 
cial guaranty appeared desirable to the interested parties, magical self- 
malediction, i.e., the oath, largely superseded even at an advanced his- 
torical stage all other forms of guaranty, including an existing guaranty 
of legal coercion. In most periods, the preponderant part of the con- 
sensual order, including that of economic matters, has operated in this 
way and without concern for the availability of the legal coercive power 
of the state or of any coercive enforcement at all. Such an institution, 
however, as the Yugoslav zadruga 11 (household community), which is 
so often cited as evidence of the dispensability of legal coercion, actually 
dispensed only with the coercive legal power of the state, while during 
the period of its universal diffusion it undoubtedly enjoyed effective 
protection through the coercive power of the village authorities. Such 
forms of consensual action, once they have become firmly embedded in , 
usage, may continue to exist for centuries without any recourse to the 
coercive power of the state. Although the zadruga was not recognized 
by, and was even contrary to many of the rules of, official Austrian 
law, it still dominated the life of the peasantry. But such instances 
should not be regarded as normal and should not be used as a basis for 
general conclusions. 

Where several religiously legitimated legal systems coexist side by 
side on a completely equal footing, and with freedom of choice between 
them for the individuals, the fact that one of them is supported not 
only by the religious sanction but also by the coercive power of the 
state may well decide the rivalry between them, even if state and eco- 
nomic life are dominated by traditionalism. Thus, in Islam the same 
status is officially enjoyed by all the four orthodox schools of law. 12 Their 
application to the individuals is determined by the principle of per- 
sonality in much the same way in which the application of the several 
tribal laws was determined in the Frankish empire. 1 * At the University 
of Cairo 1 * all four schools are represented. Nevertheless, the fact that 



«t ] __ Emergence and Creation of Legal Norms 7 57 

the Hanefite system was adopted by the Osmanic sultans and that, in 
consequence, its rules were enjoying the sanction of coercive enforce- 
ment by the secular officialdom and the courts," condemned to a slow 
death the Malekke system, by which that support was once enjoyed in 
the past, as well as the other two law sects; and this development has 
taken its course despite the complete absence or any other negative 
factors. In business affairs proper, that is, in the contracts of the market, 
the interested parties' concern for the availability of the coercive power 
of the state is considerable. In this field, the development of new forms 
of association has taken place, and still does so through exact estimates 
of the probability of enforcement by the courts as organs of the political 
authority. The contracts to be concluded are being adapted to this 
estimate and the invention of new contractual forms proceeds by taking 
these estimates into account. 

While changes in the meaning of the prevailing law are thus ini- 
dated by the parties or their professional counselors, they are consciously 
and rationally adapted to the expected reaction of the judiciary. As a 
matter of fact, this kind of activity, the cavere of the Romans," 1 consti- 
tutes the very oldest type of activity performed by "professional," ra- 
tionally working lawyers. In a developing market economy, the calcula- 
bility of the functioning of the coercive machinery constitutes the 
technical prerequisite as well as one of the incentives for the inventive 
genius of the cautelary jurists (_Katttelarjuristen^, whom we find as an 
autonomous element in legal innovation resulting from private initiative 
everywhere, but most highly developed and most clearly perceptible in 
Roman and English law." 

On the other hand, the spread of consensual and rational agreements 
of a certain type naturally exercises a marked influence upon the proba- 
bility of their coercive enforcement by the law. While under normal 
circumstances only the unique case lacks the guaranty of enforcement, 
established custom and type agreement, once they enjoy universal dif- 
fusion, cannot be persistently ignored except under the compelling 
necessity of certain formal considerations or because of the intervention 
of authoritarian powers, or where the agencies of legal coercion have no 
contact with the life of business as is the case where they are imposed 
by an ethnically or politically alien authority, or where, in consequence 
of extreme vocational specialization, the organs of legal coercion have 
become far removed from private business as occasionally happens under 
conditions of sharp social differentiation. The intended meaning of an 
agreement may be in dispute or its use may be an as yet unstabilized 
innovation. In such situations the judge, as we shall call the agency of 
legal coercion a fotiori, is a second autonomous authority. But even in 



7 5 8 ECONOMY AND LAW (SOCIOLOGY OP LAw) [ Ck. Vlll 

more normal cases the judge is doing more than merely placing his seal 
upon norms which would already have been binding by consensual 
understanding or agreement. His decision of individual cases always 
produces consequences which, acting beyond die scope of the case, in- 
fluence the selection of those rules which are to survive as law. We 
shall see that the sources of "judicial" decision are not at first con- 
stituted by general "norms of decision" that would simply be "applied" 
to concrete cases, except where the decision relates to certain formal 
questions preliminary to the decision of the case itself; The situation is 
die very opposite: in so far as the judge allows the coercive guaranty to 
enter in a particular case for ever so concrete reasons, he creates, at least 
under certain circumstances, the empirical validity of a general norm 
as "law;" simply because his maxim acquires significance beyond the 
particular case. 



3 . From Irrational Adjudication to the Emergence 
of Judge-Made Law 

The phenomenon just described is in no way aboriginal or universal. 
It certainly does not exist at all in a primitive decision arrived at through 
the magical means of legal revelation. Indeed in all other adjudication 
which is not yet formally rationalized in a juristic way, even where it 
has passed beyond the stage of the ordeal, the irrationality of the in- 
dividual case is still significant. No general "legal norm" is applied, nor 
does the maxim of the concrete decision, provided it exists and is per- 
ceived at all, obtain as a norm of decision in future cases- In the "suras" 
of the Koran, Mohammed repeatedly rejects earlier directives of his 
own, irrespective of their divine origin, and even Jehovah "regrets" 
some of his decisions, including some of a legal character. Through an 
oracle, Jehovah ordained the daughters' right of inheritance (Num. 27), 
but upon remonstration by the interested parties, the oracular pro- 
nouncement was corrected (Num. 36). Thus even a Weistum 1 * of a 
general character is unstable, and where the individual case is decided 
by drawing lots (as among the Jews by the Urim and Th-umntim), 
combat, or some other ordeal, or by concrete oracular pronouncement, 
we cannot, of course, find any "rule-orientation", m a decision either in 
the sense of rule application or of rule creation. The decisions of lay 
judges, too, require a long development and much travail to reach the 
idea that they represent "norms" going beyond the individual case; this 
has been shown, for instance, by the investigations of Vladimirski- 
Budanov. 1 * As a matter of fact, die greater the degree to which the 



HI 



j ] Emergence and Creation of Legal Norms 759 



decision is a concern of "laymen," the less it proceeds upon purely ob- 
jective lines and the more it takes into account the persons involved 
and the concrete situation. A certain measure of stabilization and stereo- 
typing in the direction of the formation of norms emerges inevitably, 
however, as soon as the decision becomes the subject matter of discus- 
sion, or whenever rational grounds for the decision are being sought or 
presupposed. In other words, norm-formation occurs wherever there is 
a weakening of the originally purely oracular character of the decision. 
But, within certain limits, it was just the magical character of the primi- 
tive law of evidence which tended to more rational norm-formation, be- 
cause it required that the question to be asked had to be precisely 
formulated. 

There also exists another intrinsic element. Obviously, it is difficult, 
and often impossible, for a judge who wishes to avoid the charge of 
bias to disregard in a later case a norm which he has consciously used 
as his maxim in an earlier similar decision, and to deny his power of 
enforcement when he has once granted it before. The same considerations 
hold true for the judges who succeed him. The more stable the tradi- 
tion, the more the judges will depend on those maxims which guided 
their predecessors, because it is just then that every decision, regardless 
of how it came into existence, appears as being derived from the ex- 
clusively and persistently correct tradition, as part of it or as its mani- 
festation. It thus becomes a pattern which has, or at least lays claim to, 
permanent validity. In that sense, the subjective conviction that one is 
applying only norms already valid is in fact characteristic of every type 
of adjudication which has outgrown the age of prophecy, and it is in no 
way peculiarly modern . 

New legal norms thus have two primary sources, viz., first, the 
standardization of certain consensual understandings, especially pur- 
posive agreements, which are made with increasing deliberateness by 
individuals who, aided by professional "counsel," thereby demarcate their 
respective spheres of interest; and, second, judicial precedent In this 
way, for example, most of English common law developed.* The ex- 
tensive participation in the process of juridically experienced and trained 
experts, who to an ever increasing degree devoted themselves "pro- 
fessionally" to the tasks of "counsel" or judge, has placed the stamp of 
"lawyers' law" upon the type of law thus created. 

There is not excluded, of course, the role played in the development 
of the law by purely "emotional" factors, such as the so-called "sense of 
justice." Experience shows, however, that the "sense of justice" is very 
unstable unless it is firmly guided by the pragma of objective or sub- 
jective interests. It is, as one can still easily see today, capable of sudden 



760 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

fluctuations and it cannot be expressed except in a few very general and 
purely formal maxims. 11 No national legal peculiarities, in particular, can 
be derived from any differences in the operation of the "sense of justice," 
at least not as far as present knowledge goes." Being mainly emotional, 
that "sense" is hardly adequate for the maintenance of a body of stable 
norms; it rather constitutes one of the diverse sources of irrational ad- 
judication. Only upon this basis can one ask to what extent "popular" 
attitudes, i.e., attitudes widely diffused among the legal clientele, can 
prevail against the "lawyers' law" of the professionals (attorneys and 
judges) who are continuously engaged in the invention of new contracts 
and in adjudication. The answer to this question depends, as we shall 
see, upon the type of adjudicative procedure prevailing in a given situa- 
tion. 



4. Development of New Law Through Imposition from 
Above 

But aside from the influence and, mostly, the confluence of these 
factors, innovation in the body of legal rules may also occur through 
their deliberate imposition from above. 23 Of course, this took place at first 
in ways very different from those we know in our present society. 
Originally there was a complete absence of the notion that rules of con- 
duct possessing the character of "law," i.e., rules which are guaranteed 
by "legal coercion," could be intentionally created as "norms." As we 
have seen, legal decisions did not originally have any normative element 
at all. Today, we take it for granted that legal decisions constitute the 
"application" of fixed and stable rules." But where there had emerged 
the conception that norms were "valid" for behavior and binding in the 
resolution of disputes, they were at first not conceived as the products, or 
as even the possible subject matter, of human enactment. Their "legiti- 
macy" rather rested upon the absolute sacredness of certain usages as 
such, deviation from which would produce either evil magical effects, 
the restlessness of the spirits, or the wrath of the gods. As "tradition" 
they were, in theory at least, immutable. They had to be correctly 
known and interpreted in accordance with established usage, but they 
could not be created. Their interpretation was the task of those who 
had known them longest, i.e., the physically oldest persons or the elders 
of the kinship group, quite frequendy the magicians and priests, who, as 
a result .of their specialized knowledge of the magical forces, knew the 
techniques of intercourse with the supernatural powers. 

Nevertheless, new norms have also emerged through explicit imposi- 



in ] _ Emergence and Creation of Legal Norms 761 

tion. But this could happen in one way only, viz., through a new charis- 
matic revelation which could assume two forms. In the older it would 
indicate what was right in an individual case; in the other, the revela- 
tion might also point to a general norm for all future similar cases. Such 
revelation of law constitutes the primeval revolutionary element which 
undermines the stability of tradition and is the parent of all types of 
legal "enactment." The revelation could, and indeed often was, revela- 
tion in the literal sense; the new norms found their source in the 
inspiration or impulses, either actual or apparent, of the charismatically 
qualified person, and without being in any way required by new external 
conditions. But usually revelation was an artificial process. Various 
magical devices were used to obtain new rules when a change in eco- 
nomic or social conditions had created novel and unsolved problems. 
The men who normally used these primitive methods of adapting old 
rules to new situations were the magicians, the prophets, or the priests 
of an oracular deity. Of course, the line where interpretation of old 
tradition slides into the revelation of new norms is unprecise. But the 
transition must take place once the interpretative wisdom of the priests 
or elders proves inadequate. A similar need may also arise for the deter- 
mination of disputed facts. 

What is now of interest are the ways in which these modes of in- 
venting, finding, or creating law affect its formal characteristics. The 
presence of the magic element in the setdement of disputes and in the 
creation of new norms results in the rigorous formalism so peculiar to 
all primitive legal procedure. For, unless the relevant question has been 
stated in the formally correct manner, the magical technique cannot 
provide the right answer. Furthermore, questions of right or wrong can- 
not be settled by any magical method indiscriminately or arbitrarily se- 
lected; each legal problem has its own technique appropriate to it. We 
can now understand the fundamental principle characteristic of all 
primitive procedure once it has become regulated by fixed rules, viz., that 
even the slightest error by one of the parties in his statement of the 
ceremonial formula will result in the loss of the remedy or even the 
entire case, as, for instance, in the Roman procedure by legis actio or 
in early medieval law. 21 The lawsuit, however, was, as we have seen, 
the oldest type of 'legal transaction," because it was based upon a 
contract, i.e., the contract of composition, 18 Accordingly, we find the 
corresponding principle in the solemn private transactions of the early 
Middle Ages as well as in the Roman negotia stricti juris. 27 Even the 
slightest deviation from the magically effective ' formula renders the 
whole transaction void. Above all, however, a formalistic 'Taw of evi- 
dence" constitutes the beginning of legal formalism in the lawsuit; 



762 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

such law was not at all to regulate procedural proof in the modern sense. 
No proof was offered to show the allegation of a particular fact to be 
either "true" or "false." The issue was rather which party should be 
allowed or required to address to the magical powers the question of 
whether he was right and in which of the several ways this might or 
ought to be done. 28 The formal character of procedure thus stands in 
sharp contrast to the thoroughly irrational character of the technique of 
decision. Hence, the 'law" that found expression in these decisions was 
entirely fluid and flexible, unless rigorously traditional norms had come 
to be generally acknowledged. Logical or rational grounds for a concrete 
decision were entirely lacking not only where the decision was given by 
a divine power or found through magical means of proof, but also where 
it consisted in the verdict of a charismatically qualified sage or, later, by 
an elder steeped in tradition, or an elder of the kinship group, or an 
arbitrator selected ad hoc, or a permanently elected expounder of the 
law (lag saga),™ or a judge appointed by a political ruler. The verdict 
had to state that the particular problem had always been dealt with in 
the particular way; or it had to state that a divine power had decreed 
that the problem should be dealt with in that way in the specific case 
in hand or in all future cases, too. Such also was the nature of that 
great innovation of King Henry II, which was to become the origin of 
all civil trial by jury. The asstsa novae dtsseisinae™ which was granted 
to the petitioning party by royal writ, replaced in real actions 31 the older 
magical-irrational modes of proof, i.e., wager of law and combat, by the 
interrogation of twelve neighbors sworn to tell whatever they knew 
about the seisin in question. The "jury" emerged when the parties 
voluntarily or, shordy afterwards, under the pressure of compulsion, 31 
agreed in all types of litigation 33 to accept the verdict of twelve jurors 
rather than to derive the finding of guilt from the extraction of the 
assize and the old irrational modes of trial. 3 * The jury, as it were, thus 
took the place of the oracle, and indeed it resembles it inasmuch as it 
does not indicate rational grounds for its decision. There was to be a 
distribution of functions between presiding "judge" and jury. The pop- 
ular view which assumes that questions of fact are decided by the jury 
and questions of law by the judge is clearly wrong. Lawyers esteem the 
jury system, and particularly the civil jury, precisely because it decides 
certain concrete issues of "law" without creating "precedents" which 
might be binding in the future, in other words, because of die very "irra- 
tionality" in which a jury decides questions of law. 

Indeed, it is this aspect of the civil jury's function which explains 
the very slow development in English law of certain rules of long-time 
practical validity to the status of fully recognized rules of law.Xs the 



in ] __ Emergence and Creation of Legal Norms 763 

verdicts intermingled issues of law with questions of fact, it was only 
to the extent that the judges freed thr p*oper!y l*gal from the factual 
portions of a verdict and articulated the former as legal principles, that 
these verdicts could become part of the growing body of law. It was in 
this manner that a major part of English commercial law was formulated 
by Lord Mansfield in the course of his judicial career. He endowed with 
the dignity "of legal propositions what had hitherto been but the "feeling 
for law and justice" of the juries when they settled legal problems 
without distinguishing between law and fact. 35 Incidentally, the jury 
performed this task quite well, at least when it included experienced 
businessmen. Similarly, in Roman law the creative function of the 
"responding jurists" emerged from their giving advice to civil jurors; but 
in this case the legal problems were analyzed outside the court by an 
independent and legally competent agency. 10 This in due course pro- 
duced a tendency to shift the work of the jurors onto the responding 
jurists and promoted in Rome the extraction of rational propositions of 
law from vaguely felt ethical maxims, just as in England the temptation 
to shift the work from the judge to the jury could, and probably often 
did, produce the opposite effect. Because of the jury, some primitive 
irrationality of the technique of decision and, therefore, of the law 
itself, has thus continued to survive in English procedure even up to 
the present time." 

Again, in so far as settled ways of judging typical fact situations have 
developed from the interaction of private business practices and judicial 
precedents, they do not possess the rational character of "legal proposi- 
tions" as evolved by modern legal science. The legally relevant fact situ- 
ations were distinguished from each other in a thoroughly empirical way 
in accordance with their objective characteristics rather than in ac- 
cordance with their meanings as disclosed by formal legal logic. Certain 
distinctions were made, but only in the context of determining in a 
particular case which question should be addressed to the god or the 
charismatic authority, how this question should he put, and upon whkh 
of the parties it should be incumbent to apply the appropriate means of 
proof. As primitive legal coercion had for this purpose become rigor- 
ously formal and consistent, it always led to the "conditional judg- 
ment." 11 " One of the parties was declared to have the right or the duty 
to furnish proof in a certain way, and success or failure in the case was, 
expliddy or by implication, declared to depend upon the result of his 
proof. Although different in many technical respects, the procedural 
dichotomy of both the praetorian formulary procedure 19 of Rome and 
the English procedure by writ and jury trial were connected with this 
basic phenomenon. 



764 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VUl 

The problem of just what question was to be addressed to the 
magical powers constituted the first stage in the development of 
technical-legal concepts. But there is as yet no distinction between ques- 
tions of fact and questions of law; or between objective norms and 
subjective "claims" of individuals which they guarantee; or between the 
claim for performance of an obligation and the demand for vengeance 
for a wrong — since originally everything which could constitute the 
basis of a suit was a wrong — ; or between public and private rights; or 
between the making and the application of the law. Nor, in spite of what 
we have said earlier [sec. 1:2—33, is a distinction always made between 
"law," in the sense of norms which allot "claims" to the individual inter- 
ested party, and "administration," in the sense of purely technical disposi- 
tions which "by reflection" benefit the individual by giving him access 
to certain opportunities. 

Of course, all these distinctions exist in a latent and primitively 
inarticulate form. For, when seen from our point of view, the different 
kinds of coercion or of coercive authorities to some extent correspond to 
these distinctions. Thus the distinction between the religious lynch 
justice (employed by a community which feels threatened by magical 
dangers because of the conduct of one of its members) and the composi- 
tion proceedings between kinship groups corresponds in a certain sense 
to the present-iday distinction between criminal prosecution ex officio 
and civil proceedings initiated by private parties. Likewise we have 
come to see the original seed bed of "administration" in the arbitration 
of disputes by the master of the household, unbound by formal re- 
straints or principles; and we distinguished this type of "administration" 
from the first steps toward an organized "administration of justice" 
which evolved in disputes between kinship groups by way of the rigor- 
ously formal composition procedure and its strict tendency to apply only 
existing rules. Furthermore, wherever there arose an imperiunt (i.e., an 
authority whose functions are specifically particularized as distinguished 
from the unlimited domestic authority), we find the beginnings of the 
distinction between "legitimate" command and the norms by which it 
is "legitimated." Both sacred tradition and charisma bestowed upon an 
individual command either an impersonal or a personal legitimacy, as 
the case may be, and thus also indicated the limits of their "lawful- 
ness."* But since imperium conferred upon its holder a specific "legal 
quality" rather than impersonal jurisdiction, there was for a long time 
no clear-cut distinction between the legitimate command, the legitimate 
claim, and the norm by which both are legitimated. Again, what 
separated immutable tradition from imperium was also rather vague. 
The reason is that the imperium-holdet made no important decision, 



Hi ] __ Emergence and Creation of Legal Norms 7^5 

however great the power he might claim, without resorting as nearly as 
possible to the method of obtaining a revelation 'of the law. 



5. Approaches to Legislation 

(a) Even within the framework of tradition, the law that is actually 
applied does not remain stable. As long, at least, as the tradition has not 
yet fallen into the domain of a group of specially trained "preservers," 
who are at first usually the magicians and priests developing empirically 
fixed rules of operation, it will be relatively unstable in wide areas of 
social life. Valid "law" is what is "applied" as such. The decisions of the 
African "palavers" have been transmitted over generations and been 
treated as "valid law."" Munzinger reports the same phenomenon as to 
the Northeast African dooms (Jbuthas).** "Case law" is the oldest form 
of changing "customary law," As far as subject matter is concerned, we 
have seen that, at first, this kind of legal development is limited to the 
tested devices of the art of magical inquiry. Only as the importance of 
the magicians declined did tradition acquire that character which it 
possessed, for example, in the Middle Ages and under which the exist- 
ence of a legally valid usage could, just like a fact, become the subject 
matter of proof by the interested party. 

(b) The most direct path of development led from the charismatic 
revelation of new commandments over the imperium to the conscious 
creation of law by compact or imposed enactment. The heads of kinship 
groups or local chieftains are the earliest parties to such compacts. 
Where in addition to villages and kinship groups, territorially more in- 
clusive political or other associations come into existence for some politi- 
cal or economic reason, their affairs were managed through the regular 
or ad hoc meetings of the authorities just referred to. The compacts at 
which they arrived were of a purely technical or economic nature, that 
is, they concerned themselves, according to our notions, with mere "ad- 
ministration" or strictly private setdements. These compacts expanded, 
however, into the most diverse spheres. The assembled authorities 
might, in particular, incline toward imputing to their common declara- 
tions a particularly high authority for the interpretation of the sacred 
tradition. Under certain circumstances they might even dare to interfere, 
through their interpretation, with magically sanctioned norms, for 
instance, those ordering kinship exogamy. A* first diis process would be 
initiated mosdy by the charismatically qualified magician or sage pre- 
senting the assembly with the revelation of the new principle with 
which he had been inspired in a state of ecstasy or in a dream; then the 



766 BCONOMY^AND LAW (SOCIOLOGY OF LAW) [Ch. Vlll 

members, acknowledging the charismatic qualification, would accept 
this revelation and would communicate it to their own groups as a new 
principle to be observed. However, the boundaries between technical 
decree, interpretation of tradition by individual decision, and revelation 
of new rales were vague and the magicians' prestige was unstable. 
Hence, the creation of law could, as for instance in Australia, be in- 
creasingly secularized 4 * and revelation could be either completely ex- 
cluded or applied only as an ex post facto legalization of the compacts. 
As a result, wide areas in which lawmaking was once possible only 
through revelation become subject to regulation by the simple consensus 
of the assembled authorities. This notion of "enactment" of law is thus 
frequendy found to be fully developed even among African tribes, al- 
though the elders and other honoraHores may not always be able to 
impose upon their fellow tribesmen the new laws upon which they 
have agreed. Monrad" has found, for instance, that on the Guinea 
Coast the agreements of the honoraHores are imposed upon the economi- 
cally weak by means of fines, but that the new norms are disregarded by 
the wealthy and the eminent unless they had assented to them — 
an exact analogy to the behavior of the "great of the realm" in the 
Middle Ages. On the other hand, the Ahanta and the Dahomey 
Negroes would, either periodically or incidentally, revise their enacted 
statutes and decide upon new ones.* 8 Such a situation, however, can 
no longer be called primitive. 

(c) As a general rule, enactment of statutes was either entirely non- 
existent, or, where it existed, the absence of any distinction between 
finding and making law usually prevented the emergence of any idea of 
the legislative act as a general rule to be "applied" by the judge. The 
doom simply carried the authority of precedent. This type of intermedi- 
ate stage between the interpretation of an already prevailing law and 
the creation of new law is still to be found in the German "customals" 
(Weist«wer), which are pronouncements regarding either concrete or 
abstract legal problems, issued by an authority legitimated by either 
personal charisma or age, knowledge, honorific family status, or official 
position. It is also exemplified by the pronouncements of the Nordic 
lag saga. These Germanic sources did not distinguish between laws and 
rights," or between statutory enactment and judicial decision, or be- 
tween private and public law, or even between administrative decree 
and normative rule. Depending on the case at hand, they fluctuated 
from one to the other. Even English parliamentary resolutions retained 
such an ambiguous character almost up to the threshold of the present. 
As indicated by the term assisa, not only in the Plantagenet era but, at 
least basically, even well into the seventeenth century, a parliamentary 



Hi ] Emergence and Creation of Legal Norms 767 

resolution had the same character as any other doom.* 7 Even the king 
did not regard himself as unconditionally bound by his own asshae. By 
various means Parliament sought to counteract that tendency. The keep- 
ing of records and "rolls" of various kinds was meant to serve the pur- 
pose of conferring the status of precedent upon those Parliamentary 
resolutions which had met with royal assent. Consequently, the resolu- 
tions of Parliament have always retained, even until today, the charac- 
ter of mere amendments to the existing law, in contrast to the codifying 
character of the modem continental legislative enactment, which, unless 
otherwise indicated, always purports to constitute a complete regulation 
of the subject matter in question. Hence, the principle that old law is 
completely repealed by new law has not yet been fully accepted in 
England even today.* 1 

(d) That concept of statute which in England was favored by the 
rationalism of the Puritans and later of the Whigs derives from Roman 
law, where it had its source in the ins honorarium, i.e., in the originally 
military imperiwn of the magistrate. Lex rogata was that decree of the 
magistrate which had been rendered binding for the citizens by the con- 
sent of the citizens in arms and which was thus binding also for the 
magistrate's successor in office.** The original source of the modern 
concept of statute was, accordingly, Roman military discipline and the 
peculiar nature of the Roman military community. In medieval conti- 
nental Europe, Frederick I of Hohenstaufen was the first to utilize the 
Roman conception of statute, 50 apart from the Carlovingians, to whom 
it had been of a merely incipient significance." But even the early 
medieval, particularly English, conception of the statute as an enacted 
amendment to the law was by no means reached quickly. 

(e) Characteristics of the charismatic epoch of lawmaking and law- 
finding have persisted to a considerable extent in many of the institu- 
tions of the period of rational enactment and application of the law. 
Remnants still survive even at the present day. As late a writer as 
Blackstone called the English judge a sort of living oracle;" 1 and as 
a matter of fact, the role played by decision as the indispensable and 
specific form in which the common law i c embodied corresponds to the 
role of the oracle in ancient law: "What was hitherto uncertain, viz., the 
existence of the particular legal principle, has now, through the decision, 
become a permanent rule. The decision cannot be disregarded with im- 
punity unless it is obviously "absurd" or "contrary to God's will" and 
therefore lacking charismatic quality. The only distinction between the 
genuine oracle and the English precedent is that the oracle does not 
state rational grounds, but it shares this very feature with the verdict 
of the jury. Historically, of course, the jurors are not the successors of 



768 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch, Vlll 

the charismatic legal prophets; quite to the contrary, the jury represents a 
displacement of the irrational means of proof used in adjudication before 
the folk assembly by the testimony of the neighbors, especially in matters 
concerning property. In the King s court it is thus a product of princely 
rationalism. True cases of descent from charismatic declaration of law we 
can see, on the other hand, in the relationship between the Germanic 
aldermen (Schoffeny* and the "judge," and in the institution of the lag 
saga of Nordic law. 



6. The Role of the Law Prophets and of the Folk Justice 
of the Germanic Assembly 

Of striking importance is a fundamental principle which has had 
an extraordinary influence upon the development of corporative Qgenos- 
senschaftltcK) and estate autonomy in the medieval West. 

(a) This principle, which was consistently observed for the politi- 
cal reasons already mentioned, required that the lord of the court or 
his deputy would not participate in the decision of the case but would 
only occupy the chair and keep order in the court; the decision was to 
be arrived at by charismatic "declarers" of the law or, later, by aldermen 
appointed from the community within which the decision was to stand 
as law. In certain respects, this principle partakes of the nature of 
charismatic adjudication. The judge, by whom the court is convoked 
and held in his official capacity, cannot participate in the lawfinding 
simply because in die charismatic view his office as such does not confer 
upon him the charismatic quality of legal wisdom. His task is done 
when he has brought the parties to the point where they choose com- 
position in preference to vengeance and the peace of the court in 
preference to self-help, and where they are ready to perform those 
formalities which both force them to adhere to the trial agreement and, 
at the same time, constitute the correct and effective way of putting the 
question to the deity or to the charismaticaily qualified sages. Originally, 
these legal sages were men of some general magical qualifications who 
were called upon in individual cases because of their very charisma; or 
they were priests, as the Brehons in Ireland" or the Druids among the 
Gauls, 65 or special juridical honoratiores acknowledged as such by elec- 
tion as lag sagas among the Nordic tribes or as rachimhurgi among 
the Franks.*" The charismatic lag saga later became a functionary whose 
position was legitimated as such by periodic election and eventually by 
appointment; the rachimhurgi gave way to the aldermen legitimated as 
juridical honoratiores by royal patent. Yet, the principle still jurvived 



Hi ] Emergence and Creation of Legal Norms 769 

that the Taw could not be disclosed by the lord himself but 'only by 
persons qualified by the possession of charisma. Thanks to his charis- 
matic status, many a Nordic lag saga or German alderman was a 
politically influential spokesman for his district with the sovereign, 
especially in Sweden. 17 Always, these men were descended from emi- 
nent families and quite naturally the office was often hereditary in a 
family regarded to be charismatically qualified. The lag saga, for whom 
we have historical evidence from the tenth century on, never was a 
judge. He had nothing to do with the enforcement of any judgment; 
originally he had no coercive powers at all and only later did he acquire 
a limited coercive power in Norway. Coercive power, to the extent that 
it existed in legal matters at all, lay rather in the hands of political 
officials. From one called upon from case to case to find the law, the lag 
saga developed into a permanent official; and with the growing need for 
a rational calculability and regularity of the law, he became responsible 
for stating annually before the assembled community all those rules in 
accordance with which he would declare or "find" the law from case to 
'Case. The purpose was to make these rules known to the whole com- 
munity but also to keep them alive in the memory of the lag saga him- 
self. In spite of certain differences, the similarity with the annual pub- 
lication of the praetorian edict is considerable. The succeeding lag saga 
was not bound by the saga of his predecessor, since, by virtue of his 
charisma, every lag saga could "create" new law. He could, of .course, 
take into account suggestions and resolutions of the popular assembly, 
but he was not required to do so, and such resolutions were not law 
until they were received into the lag saga. Law could only be revealed; 
this fundamental principle as well as its implications in regard to the 
creation and declaration of law must now have become quite obvious. 
As in the Lex Thuringorum, traces of similar institutions can be found in 
most Germanic legal systems, especially in Frisia (the aseg«). 53 The 
"editors" mentioned in the Preamble to the Lex Salica™ probably were 
such prophets of the law, and we may also reasonably assume that the 
specific origin of the Frankish Captbula legihus addenda* is connected 
with the "nationalization" of such legal prophecy. 

(b) Similar developments, or traces of them, can be found every- 
where. The primitive method of deciding legal disputes by resorting to 
an oracle was frequent in civilizations of otherwise highly rationalized 
political and economic structure as, for instance, Egypt (the oracle of 
Ammon) or Babylonia.* 1 Certainly the practice also contributed to the 
power of the Hellenic oracles. 92 Similar functions were performed by 
the legal oracles of the Israelites." s Indeed, legal prophecy seems to 
have been universal. Everywhere the power of the priests rested largely 



7 7° ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. Vlll 

upon their activities as dispensers of oracles or as the "directors" of the 
procedure in ordeals. Their powers thus increased considerably with the 
growing pacification of society due to the increased replacement of 
vengeance, at first by compulsion and eventually by complaint and 
trial. In Africa, the significance of irrational means of proof has been 
gready reduced by the "chieftain's trial"; nevertheless, the terrifying 
power of the fetish-priest still rests upon the partial survival of the older 
practice of the sacred magical trial and ordeal, which was not only held 
under his supervision but which also allowed him to bring charges of 
sorcery and thus to deprive of life and y property anyone who had in- 
curred his displeasure or that of one who knew how to win him to his 
side. Even purely secular forms of the administration of justice have 
under certain conditions retained important traces of the old charismatic 
methods of adjudication. It is probably correct to regard trie Athenian 
thesmothetai™ as a body of persons who, through a process of formal- 
ization, changed from a group of charismatic legal prophets into an 
elective council of officials. But we cannot say with any certainty to 
what extent the participation of the Roman pontifices in legal matters 
was originally organized in a way similar to that of other forms of legal 
prophecy. The principle of separating the formal direction of the law- 
suit from the finding of law applied in Rome as well, although the tech- 
nical details were different from those of Germanic law. As regards the 
edict of the praetor and the aedilU, their similarity with the lag saga is 
also evident from the fact that its binding effect upon the individual 
official himself was preceded by a stage in which the official enjoyed 
wide discretionary powers. The principle that the praetor should he 
bound byihis own edict did not evolve into a rule of law until the impe- 
rial period; snd we must assume that both the pontifical disclosure of the 
law as resting upon an esoteric body of technical rules and the praetor's 
instruction to the iudex were at first rather irrational. It is customary to 
explain the demand of the plehs for the codification and publication of 
the law as a result of their opposition to/both an esoteric law and the 
power of the magistrate. / 

(c) The separation of lawfinding from law enforcement has often 
been claimed to be a peculiar trait of German law as well as the source 
of the special power of the German sodalities (Genossenschaften). 
Actually, however, it is anything but a German peculiarity. The Ger- 
man board of aldermen simply took the place of the old charismatic 
prophets. The unique feature of German legal development can rather 
be found in the maintenance of that separation, the way in which it 
was technically worked out, and its connection with certain other 
important peculiarities of German law. Of these, one must mention 



iit ] Emergence and Creation of Legal Norms 771 

particularly the continuous importance of the so-called Umstand.** 
This was the participation in the process of adjudication by members of 
the legal community who were not juridical honoratiores, whose con- 
currence by acclamation was indispensable for ratification of the verdict 
as found by the "lawfinders," and every one of whom could, by way 
of Urteilsschelte, challenge the verdicts proposed. 68 The phenomenon 
of participating in adjudication by way of concurring acclamation can 
be found outside the area of Germanic procedure. One is justified in 
assuming, for instance, that elements of this practice are contained in 
Homer's description of a trial as depicted upon the shield of Achilles;"' 
or in the trial of Jeremiah [Jer. 26:7-24], and elsewhere. The right of 
every freeman to challenge the decision of the lawfinders, i.e., the so- 
called Urteilsschelte, is a peculiar feature of German law, however. 
Yet it is by no means necessary to regard it as rooted in immemorial, 
aboriginal Germanic tradition. It seems rather to be a product of special 
developments, largely military in nature. 

CO Among the most important factors which secularized the think- 
ing about what should be valid as a norm and furthered its emancipa- 
tion from magically guaranteed traditions, were war and its uprooting 
effects. Although the conquering warrior chief could not exercise the 
imperium in important cases without the free consent of the army, it 
was inevitably very wide. It was in the very nature of the situation that 
this iinperium was in rhe vast majority of cases oriented towards the 
regulation of conditions which in times of peace could have been 
regulated only by revealed norms, but which in times of war required 
that new norms be created by agreed or imposed enactment. The war 
lord and the army disposed of prisoners, booty, and particularly of con- 
quered land. They ihus created new individual rights and, under cer- 
tain circumstances, new law. On the other hand, the war lord, both 
in the interest of common security and to prevent breaches of discipline 
and the instigation of domestic disorder, had to have more comprehen- 
sive powers than a "judge" possessed in times of peace. These cir- 
cumstances would alone have been sufficient to increase the imperium at 
the expenste of tradition., But war also disrupts the existing economic and 
social order, so that it becomes clear to everyone that the things one has 
Deen accustomed to are not absolutely sacred. It follows that war and 
warlike expansion have at all stages of historical development often 
been connected with a systematic Bxation of the law both old and new. 
Again, the pressing need for security against internal and foreign 
enemies induces a growing rationalization of lawmaking and lawfind- 
ing. Above all, those various social elements by whom legal procedure 
is guided and presided over, enter into new relationships with each 



7 7 2 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

other. If the political association assumes a permanently military charac- 
ter because of war and preparation for war, the military as such in- 
creases its decisive influence over the settlement of disputes between 
its members and, consequently, upon the development of the law. The 
prestige of age and, to a certain extent, the prestige of magic tend to 
decrease. But many different solutions can be found for the problem 
of how to adjust the various claims for a share in* the making of new 
law of the war lord, of the secular and spiritual guardians of sacred 
tradition, and of a military community likely to be comparatively free from 
die restraints of tradition. 

From this point of view, the type of military organization is a highly 
important factor. The Germanic thing of the district and also the gemot 
(Landesgemeinde) of the total political community were assemblies of 
the men who were able to bear arms and, consequently, were owners of 
land. Similarly, the Roman papulus consisted of the property-holders 
assembled in their tactical units. During the great upheavals of the 
migration of the Germanic tribes, the assemblies of the Germanic po- 
litical communities seem to have assumed, as against the war lord, 
the right to participate in the creation of new law. Sohm's contention 
that all enacted law was the King's law is quite improbable. 88 In fact, 
the bearer of the itrtperium does not seem to have played a pre- 
dominant role in this kind of lawmaking. Among more sedentary peo- 
ples, the power of the charismatic legal sage continued unbroken; 
among those who were faced with new situations in the course of their 
warlike wanderings, especially the Franks and the Langobards, the sense 
of power of the warrior class increased. They claimed and exercised 
the right of active and decisive participation in the enactment of laws 
and the formation of judgments. 

In early medieval Europe, on the other hand, the Christian Church, 
by its example of episcopal power, everywhere strongly ercouraged 
the interference of the princes in the administration and enactment of 
the law. Indeed, the church often instigated this intervention for its 
own interests as well as in the interests of the ethics it taught. The 
capitularies of the Frankish kings developed in the same way as the 
semi-theocratic courts of the itinerant justices.* 9 In Russia, very shortly 
after the introduction of Christianity, the. second version of the Rttss- 
kaya Pravda is evidence of the prince's intervention in adjudication and 
enactment which had been lacking in the first version; the result was 
the development of a considerable body of new substantive law having 
its source in the prince. 10 In the Occident, this tendency of the im- 
ferium clashed with the firm structure of charismatic and corporative 
adjudication within the military community. By contrast, the Roman 



Hi ] __ Emergence and Creation of Legal Norms 7 7 3 

fopulus could, in accordance with the development of discipline in the 
hoplite army/ 1 only accept or reject what was proposed by the holder 
of the imperium, i.e., apart from legal enactments, nothing but deci- 
sions in capital cases brought before it by prorocatjo." In the German 
thing a valid judgment necessarily required the acclamation of the 
audience (JJ-mstancE).™ The Roman po-pulus, on the other hand, was 
at first not concerned with any judgment save its power to rescind, by 
way of grace, a death sentence rendered by a magistrate. The right 
of every member of the German thing assembly to challenge the de- 
cision proposed (Urteihschelte) was due to jts lesser degree of military 
discipline. The charismatic quality of adjudication was not the ex- 
clusive possession of a special occupational group, but every member 
of the thing community could at all times express his superior knowl- 
edge and attempt to have it prevail over the judgment proposed. Orig- 
inally, a decision between them could only be arrived at by an ordeal,' 
frequendy with penal sanctions for the one whose "false" judgment 
constituted blasphemy against the divine guardians of the law. In fact, 
of course, the murmur of approval or disapproval by the community, 
whose voice was, in this sense, the "voice of God," would always carry 
considerable weight. The strict discipline of the Romans found expres- 
sion in the magistrate's exclusive right of guiding the course of the 
lawsuit as well as in the exclusive right of initiative (agere^zum populo) 
of the several magistrates who were competing with each other. 

The Germanic dichotomy between lawfinding and law enforcement 
constitutes one type of separation of powers in the administration of 
justice; another is represented by the Roman system of concurrent 
powers of several magistrates entitled to "intercede" against each other 
and of division of functions in a law suit between magistrate and 
index. Separation of powers in the administration of justice was also 
guaranteed by the necessity of collaboration in various forms among 
magistrates, juridical honoratiores, and the military or political assembly 
of the community. It was on this basis that the formalistic character of 
the law and its administration was preserved. 

(2) Wherej* however, "official" authorities, that is, the imferium of 
the prince and his officials or the power of the priests as the official 
guardians of the law, succeeded in eliminating the independent bearers 
of charismatic legal knowledge on the one side, and the participation of 
the popular assembly or its representatives on the other, the develop- 
ment of law acquired quite early that theocratic-patrimonialistic charac- 
ter which, as we shall see, produced peculiar consequences for the 
formal aspects of the law. Although a different course developed where, 
as for instance in the Hellenic democracies, a politically omnipotent 



7 7 4 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

popular assembly completely displaced the old magisterial and charis- 
matic agents of adjudication and set itself up as the sole and supreme 
authority in the creation and the finding of the law, the effects upon 
the formal qualities of the law were similar. We shall speak of "law- 
finding by the folk assembly" (dingfjpnossensckaftliche Rechtsfindung) 
whenever the folk assembly, while it participates in adjudication, does 
not have supreme authority over it but can accept or reject the deci- 
sion recommended by the charismatic or official possessor of legal 
knowledge and can influence the decision in some particular way, for 
instance, through the challenge of the judgment proposed. Illustra- 
tions of this situation are the Germanic military community as well as, ' 
although in a highly rationally modified way, the military community 
of Rome. The type is not characterized, however, by the mere fact 
of the popular assembly participating in adjudication, examples of 
which occur frequendy, e.g., among the Negroes of Togoland' 4 or 
among the Russians of the period of the first pre-Christian version 
of the Russkaya Pravda." In both these situations we can find a small 
body of "judgment finders" — twelve among the Russians — correspond- 
ing to the Germanic council of aldermen. Among the inhabitants of 
Togoland the members of this body are taken from among the elders 
of the kinship or neighborhood groups, and we may assume a similar 
basis more generally for the origin of the council of judgment- finders. 
In the Russkaya Pravda, the prince did at first not participate at all; 
among the Togoland Negroes, however, he presides over the delibera- 
tions, and the judgment is arrived at by the joint and secret consult^ 
tion between him and the elders. In neither case, however, does the 
participation of the people impart any charismatic character to the 
process of decision finding. Cases where popular participation does have 
that character seem to be rare in Africa and elsewhere. 

(3) Where the community participates in the form of the Umstand, 
the formal character of the law and of lawfinding is largely preserved be- 
cause the lawfinding is the product of revelation of the legal sage rather 
than the whimsical or emotional enunciation of those for whom the law is 
effective, i.e., those whom it purports to dominate rather than to serve. 
On the other hand, the sage's charisma, like every other genuine char- 
isma, must "prove" itself by its own persuasive and convincing power. 
Indirecdy, the setise of fairness and the everyday experience of the 
members of the legal community can thus make themselves felt 
strongly. Formally, the law remains here, too, "lawyers' law," for without 
specific expert knowledge and skill it cannot assume the form of a 
rational rule. However, as far as its content is concerned, it is at the 
same time also "popular law." 



Hi ] Emergence and Creation of Legal Norms 775 

It is most probable that the origin of the institution of the 'legal 
proverbs" may be ascribed to the epoch of administration of justice 
by the folk assembly. It should be realized, however, that the folk 
assembly was not a universal phenomenon, if we use the term in the 
precise sense of a peculiar variety of several possible ways of dividing 
power between the authority of legal charisma and ratification by the 
popular and military community. The specific feature of such legal 
proverbs is usually a combination of the formal legal norms with a 
concrete and popular reason, as, for example, in such sayings as these: 
"Where you have left your faith, there you must seek it again," or 
"Hand must warrant hand" [cf. sec. 1:5, n. 26]. They originate, on the 
one hand, in the popular character of the law which arises both from 
the participation of the community and the relatively considerable 
knowledge which it has of the law. On the other hand, legal proverbs 
also originated in certain maxims formulated by individuals, who, either 
as experts or as interested observers, gave thought to the common fea- 
tures of frequendy recurring decisions. It is certain that legal prophets 
must have coined many a maxim in this fashion. In short, legal proverbs 
are fragmentary legal propositions expressed as slogans. 



7. The Role of the Law Specialists 

Yet, formally elaborated law constituting a complex of maxims 
consciously applied in decisions has never come into existence without 
the decisive cooperation of trained specialists. We have already become 
acquainted with their different categories. The stratum of "practitioners 
of the law'^ concerned with adjudication comprises, in addition to the 
official administrators of justice, the legal honoratiores, i.e., the lag 
sagas, rachimburgi, Sckoffen, and, occasionally, priests. As the ad- 
ministration of justice requires more and more experience and, ufti- 
,mately, specialized knowledge, we find as a further category private 
counselors and attorneys, whose influence in the formation of the law 
through "legal invention" has often been considerable. The conditions 
under which this group has developed will be discussed further below 
[in the next section]. The increased need for specialized legal knowl- 
edge created the professional lawyer. This growing demand for ex- 
perience and specialized knowledge and the consequent stimulus for 
increasing rationalization of the law have almost always come from in- 
creasing significance of commerce and those participating in it. For 
the solution of the new problems thus created, specialized, i.e., rational, 
training is an ineluctable requirement. Our interest is centered upon 



77& ECONOMY AND LAW (SOCIOLOGY OF LAW) [Ch. Vlll 

the ways and consequences of the "rationalization" of the law, that is 
the development of those juristic qualities which are characteristic of' 
it today. We shaU see that a body of law can be rationalized in various 
ways and by no means necessarily in the direction of the development 
of its "juristic" qualities. The direction in which these formal qualities 
develop is, however, conditioned direcdy by "intrajurisric" conditions: 
the particular character of the individuals who are in a position to in- 
fluence by virtue of their profession the ways in which the law is 
shaped. Only indirecdy is this development influenced, however, by 
general economic and social conditions. The prevailing type of legal 
education, i.e., the mode of training of the practitioners of the law, 
has been more important than any other factor. 



NOTES 

i. The classical formulation of the German Pandectist doctrine of customary 
law is that by Puchta, Das Gbwohnhbitsrecht, 2 vols. (1828/37); for 3 con- 
cise modem treatment, see 1 Enneccerus, Allcemeiner Teil (1928) 31, 64, 
79; see also Maine (1861), c. i; J. C. Gray, Nature and Sources of Law 
(2nd ed. 1927), c. XII; Vinogradoff, The Problem of Custom, Collected 
Papers, II, 410; furthermore, Allen (5th ed. 195O, cc. i and ii, where the 
rather different tests of the legal validity of customs in the common law are fully 
discussed. 

2. E. Zitelmann, Gewohnheitsrecht und Irrtttm (1883), 66 Arciuv fur 
die civilistische Praxis, 323; O. Gierke, Privatrecht, I, 1J69. 

3. E. Lambert, La fonction du droit civil compare (1903), 172, 216; 
Ehrlich, 436; see also Gray, op. cit. supra n. i, at 297. Both Lambert and Ehr- 
lich argued that the origin <£ custom was not to be found in Volksrecht but 
predominantly in Juristenrbcht. More particularly, their argument (especially 
Lambert's) was that custom becomes only then established when those who use 
the custom have become clearly convinced that the courts will not depart from 
the line of conduct which the judges have laid down and that it is better to adapt 
oneself to these rules in the same way as one has to adapt himself to the rules laid 
down by the legislature. Thfs view of custom was meant to drive another nail into 
the coffin of the Historical School, whose arguments were that custom derived 
first and foremost from the consensus utentmm before receiving judicial and legal 
recognition. Ehrlich was less radical than Lambert, although he too insisted 
strongly on the creative agency of judge-made law. He distinguished between 
Rechtssatze, i.e., rules for decision, and Reehtsverteltnisse, i.e., the legal arrange- 
ments actually existing in society, such as property, family, etc. In dealing with 
Rechtsverkaltnisse the judge's function might be less original and more restricted, 
for the judge must always give due attention to the private arrangements or con- 
ventions existing in society; but according to Ehrlich, the process of judicial law- 
making was still clearly discernible. 

4. On the medieval doctrines about consuetudo as a source of law, see Brie, 
Lehre vom Gbwohnheitsrbcht (1899), §§ 12 et seq.; Engelmann (1938) 
8ij for England, see Pollock and Mattland 183; Allen; Holdsworth, III, 
167-170. 



Hi ] Emergence and Creation of Legal Norms 7 7 7 

5. For a~ discussion of this conflict, see Mitteis, Rbichsrecht (1891); 

JoiXJWICZ, 66-71. 

6. Cf. 1 Pollock and Mattland 107, 184, 186, 220, 222; Holdsworth 
I, 1-20; II, 3—21; 206-207; Allen, 86-88, 

7. Cf. supra n. 4, see also Savicny, Geschichtb des romischbn Rechts 
im Mittelaltbr (2nd ed. 1850) esp. I, 115, 178. 

8. Ijmd' — in Mohammedan law that consent of the scholars which has been 
held necessary to establish law supplementary to the word of the Prophet as ex- 
pressed in the Koran and his other alleged sayings QiaditK). 

9. On the Historical School, see the full treatment by Stone, 421. 

10. K. Knies, Otb POLrrrecHB Oekqnomib vom geschichtxichen Stand- 
punkte (1883). Cf. also Weber's Hoscher ttnd Knies und die logischen Probleme 
der historischen Nationalokonomie, Schmollsrs Jahrbuchbr (1903, rpo;, 
1906), reprinted in GAzW, 1-145. 

n. Zadruga (accent on the first syllable) is the south-Slavic variety of the 
very widely spread phenomenon of the house community (cf. Pbake, Village 
Community, 15 Encyc. Soc. Scr. 253, 256). According to Troyanovttch, 
Manners and Customs in Sbrbia, ed. Stead, London, 1909, c. xii, it was a 
large family or clan, organized on a patrilineal basis, dwelling in one large house 
and holding all its land, livestock, and money in common. These zadrugas con- 
tinued for several generations without division, often including as many as too 
individuals. They were ruled by an elder (stareskina), usually the oldest member 
of the household capable of exerting authority, who apportioned the work among 
the different members. When a zadruga broke up, the stores were divided equally 
among all the members, but the land among the males only. 

The zadruga has been regarded as evidence for the Marxist theory of "aborig- 
inal" communal property or as a model for the communist society or the future 
(S. Marcovic, 10 Ekcyc. Soc. Sci. 144). Quite particularly has the zadru^ been 
used as the prime illustration for the superfluousness or ineffectiveness of state 
law as a means of social regulation. This notion seems to derive from the use 
which Ehrlich made of the investigation of South Slavic law by BogiSic (see 
Demelic, Le droit coutumter des Slaves ittendiottaux d'apr&s les recherches de v, 
Bogihi, 6 Rev. l£cisl. ancienne et moderns (1876) 253). The famous pas- 
sage in Ehrlich (at 371) is as follows : 

"Bogtiic's investigation revealed, that among all the Southern Slavs within the 
territory within which the Austrian Civil Code is in effect the well-known South 
Slavic family community, the Sadruga, is in existence; this is altogether unknown 
to the Civil Code and absolutely irreconcilable with its principles," 

This proposition, which has been taken over by Weber, is not tenable, how- 
ever. 

In the former Austro-Hungarian Monarchy the kingdom of Croatia-SIavonia, 
a semi-autonomous part of Hungary, constituted the area of principal occurrence of 
the zadruga. The Austrian Civil Code of i8rr was introduced there in 1852 
(Law of November 29, 1852, Austrian Reich s-Gbsetz-Blatt 1852, No. 246). 
In the course of the implementation of the Code as the law of Croatia-SIavonia, 
the Decree of the Austrian Minister of Justice of April 18, 1853 (R.G. BI. 1853, 
No. 65) provided for the introduction of the Austrian system of registration of 
land titles. Section 29 of this decree provided expressly that in the case of lands 
owned by a "house communion" the family as such was to be entered as the 
owner rather than any single individual. This decree constituted a clear recog- 
nition of the zadruga by the official law. It continued a tradition which had been 
established by official Austrian legislation from the beginning of the Austrian rule 
over the regions of the so-called M&tar-Grenze ("Military Border Region," i.e.. 



7 7 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

the region adjacent to the Turkish border). The zadruga is expressly mentioned 
in the very statute of 1754 by which the MUitar-Grenze was established (MiUtar- 
Grentz-Recht fur das Carlstadter und Varasdiner Generalat, Part IV, § 37; see also 
Grenz-Grundgesetz of 1807; cf. M. Stopper, Erlauterungbx dBr Grund- 

GESETZE FUR DIE CARLSTADTER I, VaraSDINBR, BanAT, SLAVONISCHB UND 

croatischb Militargrenze [Vienna, 1 830 j; see also Vanicbx, Gbschichtb der 
Militargrenze, 4 vols. [1875]; Hosttnbx, Die K.K. Mh.itArgrbnze, 2 vols. 
[1861J). 

The Basic Law of 1850 (Kaiserl Patent v. 7. Mai, 1850, R.G. Bl 1850, No. 
243) stated expressly that "The patriarchal life of the border population is placed 
under the protection of the law* (§31); in accordance with this maxim an ex- 
tensive set of provisions was established to clarify the internal structure of the 
"family houses and their relation to outsiders (§§ 16, 22, 27, 33-4;). By a later 
Croatian Statute of 1 870, the disciplinary powers of the family head and the vil- 
lage authorities over zadruga members were again expressly recognized and regu- 
lated (cf. Bidermann, Legislation autcnome de la Croatie [1876], 8 Rev. dr. 
intl. et lbgisl. comp. 2 1 5, 266). In Austria proper the zadruga existed only in 
the small district of White Camiola. There, too, judicial practice regarded zadruga 
lands as owned, not by individuals, but by the family. Official Austrian, including 
Croatian-Slavonian, law was thus far from hostile to the zadruga. It would also be 
difficult to see in what respects the zadruga would have been incompatible with 
any of the provisions of the Austrian Civil Code. Like all modem codifications, 
the Austrian code leaves wide room for private parties to regulate their affairs ac- 
cording to their own wishes. The majority of its rules on contracts are stopgap law 
(iws dispositivum') to be applied only in so far as the parties have failed to make 
their own arrangements. Its rules on real property and decedents* estates are so 
formulated that they can easily be adapted to various forms of joint tenancy. It is 
thus difficult to see how the zadruga can be used as an illustration for the inef- 
fectiveness of legal regulation. 

For further information on the zadruga see Maine, Early Law 232-282; 
Weber, History (io5o> 12, 47; Y. Per itch, Opposition between communism 
and hourgeois democracy as typified in the Serbian Zadruga Family (1922) 16 
III. L, Rev. 423; S. H. Cross, Primitive Civilization of the Eastern Slavs (1946X 
5 American Slavic and East-European Rev- 50; P. E. Mosblby, Adaptation 
(or Survival: The Varzic Zadruga C 1942/43) 2 Slavonic and East-European 
Rev, 147-170; for recent developments concerning the zadruga see M. Isic, Les 

PROBLEMSS ACRAIRES fcN YoUGOSLAVIE (1926) 32, 48, 319. 

12. The four orthodox schools of Islamic jurisprudence are the Hanefite, 
Shafiite, Makkite, and Haribalite; see Schacht 8 Encyc. Soc. Sci. 344, and lit- 
erature there cited. 

13. For the system of "personal laws" in the Frankish empire, see Maitland, 
Prologwe to a History of English Law (1907) Selected Essays rw Anclo- 
Ambrican Lecal History 20; see also 1 Brunner, 259; Smith, 115 et seni- 
le. Schroder, Die FrankenhndihrRecht(i 881) 36. 

14. The reference is to the school of El-Azhar, Islam's most celebrated center 
of learning, founded in Cairo in a.d. 988. 

15. Weber's reference is to the old Turkey of the time before the Kemalist 
reforms of the 1920's; cf. Vesby-Fitzcbrald, Muhammedan Law (1931) 36$. 

16. Traditionally one enumerates three main types of lawyers' activity in an- 
cient Rome: respondere, agere and cavere. Respondere was the exposition of a 
point of law, especially in the answer to a question addressed to the jurist (je- 
sponsa prude.ntiwm}\ agere was the activity on behalf of a client in a court of law; 
cavere meant the drafting of contracts, wills, and othei transactions. A distinction 



in j Emergence and Creation of legal Norms 7 7 1- 

was made between the "jurisconsult" and the "advocate" (orator, rhetor). The 
latter would act in those courts, especially criminal, in which oratory would be 
court red or; to be helpful. Legal training was neither necessary nor usual for an 
orntor. Cicero's knowledge of the law, for instance, does not seem to have sur- 
passed that of the well-educated citizen and statesman in general. Cf. Schultz, 
History; see also the popular account of "how the Roman law factory worked" 
.by Wormser, The Law (New York, 1949?, c. ix; for further discussion by 
Weber, sec infra, sec. iv:$. 

17. Kautehrjuristen— those lawyers who, like the English conveyancer or the 
modem American corporation lawyer, are using their skilfm drafting instruments 
and especially in inventing new clauses for the purpose of safeguarding their 
clients' interests and of preventing future litigation. The term has been used with 
special reference to the German seventeenth- and eighteenth-century specialists in 
that art, and also to characterize the early period of Roman legal development 
(cf. infra, ch. XI, n. 5). 

18. Weistttm (pi. Weistumer'), similar to the costumals or customaries of 
England, is a collection of legal customs of a particular locality, especially a manor. 
"As far back as into the Carlovingian period we can trace the practice of an inquisitio 
into existing customs to be made annually by an officer of the manor. The ma- 
terials so collected were recited every year or, later, reduced to writing and an- 
nually read in public. From the manorial communities this custom spread to 
communities of free peasants and to free villages." (von Schwerin, Deutsche 
Rechtsceschichte [md.ed. 1915], with bibliography). 

19. Vladimirski-Eudanov. Mikhail Flegontovich, 1838-1916, Russian legal 
historian; cf. the biographical article on him in 15 Encyc. Soc, Sci. 271; see his 
Russian Lcj^al History (Ob zor istorii russkaco prava, 1907) 59, 88. 

20. For the latest and most comprehensive presentation of the development of 
the principle of stare decisis in English law, see Allen 43, 150ft, 525ft. 

m. For recent discussions of the "sense of justice," see E. N. Cahn, The 
Sense or Injustice (1949); E Riezler, Das Rechtscbfuhl (2nd ed. 1946); 
Hoche, Das Rechtsgefuhl in Justiz und Politik (1932); H. Going, Grund- 
zuce der Rf.chtsihilosophie (1950) 48. 

22. Weber's remark is directed against those scholars of the historical school of 
jurisprudence who regarded all law as the emanation of every nation's peculiar 
"rational spirit" (Vol&sgeist), see especially Savigny, Vom Beruf unsbrhr Zeit 
pint Gesetzcebunc und Rechtswissenscha^t (1814), translated by Hayward 
(On the Vocation of Our Age por Legislation and Jurisprudence, 183 O; 
cf. Stone 421. The theory of the national peculiarity of the sense of justice was 
taken up by the National-Socialists and used by them as one of the foundations of 
their legal theory. 

23. On the slow development of conscious creation of new law by legislation 
in England, see Allen 354, 365 et teq,; S. Thorne, Introduction to a Dis- 
course upon the Exposition and Understanding oe Statutes, with Sir 
Thomas Egerton's Additions (1942). 

24. The view expressed here by Weber is typically that of continental legal 
thinking; for the radically different view of the American realists, see especially 
Jerome Frank, Law and the Modern Mind (1930); for a more realistic de- 
scription of the American approach, see Edward Levi, Introduction to Legal 
Reasoning (i949);cf. also Stone 192; and see infra, sec. viii:2,: 

2;. For the formalisric features of the legis actio, see Jolowicz 87, 181; 
Wenger 123; Engelmann and Millar 269, 281; 2 Jhering, 496-695. As to 
formalism in medieval procedure, see Brunner, Wort und Form im altfranzosi- 
schen' Prozess in Sitzungsber. der Akad. der Wiss. zu Wien, phil-hist. 



780 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

Classb LVH (1867), 655; Engelmann and Millar 174, 386, 649; O. v. 
Zallinger, We sen und Ursprunc dbs Formalism us im altdrutschbn Pri- 
vatrbcht (1898); Schroeder, §§ 13, 25, 37, 63. See also infra, sec. »v:i and 
n. 4 Qautes volent exploits^). 

26. See supra, sec. 1:5. 

27. In classical Roman law a distinction was made between negotia stricti 
iuris and negotia bonae fidei. In the former the debtor has to perform exactly as 
he has promised, no more and no less. The principal example is the formalized 
promise of the solemn stijrulatio. In the latter, which are a product of later devel- 
opment, the debtor has to do whatever is required by good faith and fair dealing, 
especially in view of local or mercantile custom. Cf. Sohm, 367; Jors and Kun- 
kel 165 (with bibliography); see also Schulz, Principles 223 et seq. 

28. Among the historians of the Germanic laws it has become customary to 
speak of the "right" to offer proof and to contrast it with the modern "burden? 
of proof. Cf. 2 Brunner, Rechtsgeschichte §105; Schroeder 84; Amira, 
130, 161; Maurbr, Geschichte des altgermanischen Gerichtsverfahrens 
(1824); see also 1 Pollock and Maitland 39; 2 Holdsworth 107, 112, In 
England the right of the defendant in the more archaic forms of action to prove 
his case by wager of law survived, at least formally, until its official abolition by 
the statute 3 and 4 William 4 c. 42, Sec. 13 (1833). On proof in archaic proce- 
dure in general, see Declareuil, Preuves judiciaires dans le droit franc (1898) 22 

NOUVELLE REVUE HISTORIQUE DB DROIT 220. 

29. "Lag saga" was the recitation of the laws, occasionally in poetic form, at 
the periodically held popular assemblies of Scandinavia and Iceland. The same 
word applies to the person by whom the law is thus-recited. See Bryce, 327; see 
infra n. 57. 

30. For the Assize of Novel Disseisin, established at the Assize of Clarendon 
in 1166, see Pollock and Maitland 145-147; Plucknett 339-342; cf. also 
JoiiON des Longrais, La Saisine (1925), and by the same author, La pon6e 
politique des r&forntes a" Henri II (1936) Revue historique de droit 540. 

31. The "real actions" were those common law actions which were brought 
for the recovery of land. They were cumbersome and subject to numerous delays 
(essoins) and became obsolete in the sixteenth century, when the action of eject- 
ment largely took their place. Cf. Maitland, Forms 7; Plucknett 336-337, 

354- 

32. The form of compulsion referred to is the peine forte et dure. This was 
first imposed by the Statute of Westminster (1275) upon felons who refused to 
submit to trial by jury. In the sixteenth century, the -peine became a form of tor- 
hirer the accused was placed between two boards and weights were piled upon 
him until he accepted trial by jury or finally succumbed. 

.- 33' Compulsion was only used in the case of felonies. Jury trial soon became 
the normal mode of trial in civil cases. See especially Plucknett 125; Brunner, 
Schwurgerickte (1876); Holtzendorff's Rechtslbxicon 559, repr. 1 Ab- 
handlungen zur Rechtsgeschichte (1931) 82. 

34. The classical work on the origins of the jury is Brunner, Entstehung 
der Schwurcerichte CA872); for a comprehensive presentation see 1 Pollock 
and Maitland 138; 1 PRjldsworth 298; Thayer, The Jury and Its Devel- 
opment (1892) 5 Harv. L. Rev. 249; see also Radin, 204. 

35. On Lord Mansfield, see 12 Holdsworth 464—560; alsoC. H. S. Fifoct, 
Lord Mansfield (1936), esp. 82—1 17. 

$6Plnfra sec. iv:$ and n. 39. 

37. Cf. in this respect the opinion of Jerome Frank as expressed in Law and 
the Modern Mind, c. xvi and App. 5; also in Courts on Trial (1949), c. viii. 



Ui ] - Emergence and Creation of Legal Norms 7 8 1 

38. The conditional or proof-judgment of early German procedure (i.e., before 
the reception of Roman law) merely decided which allegations were decisive of 
the cause, which allegations had therefore to be proved, and which of the parties 
was to make the proof. Failing proof, judgment went automatically to the other 
parry. In other words, "the legal consequences of such success or failure in the 
proof needed no express statement: the nature of the proof-judgment was such as 
to leave not the slightest doubt on this score" (Engelmann and Millar 143- 
144). This type of judgment differed from Roman procedure, where the plaintiff 
sought to establish conclusively his claim and thus to secure authority to have his 
claim enforced in case judgment was given in his favor. In the Germanic system, 
the claim and its enforcement were, as it were, left open, and the defendant, in 
case he was unsuccessful as against, the plaintiff's proof, was bound to give satis- 
faction not by virtue of the judgment itself but by virtue of his undertaking to 
accept the results of the proofs which were directed by the court. Engelmann 
and Millar, ibid. 

In his text, Weber continues as follows: "in close correspondence to our pres- 
ent practice in those cases where one party is charged with swearing a decisory 
oath." The reference is to Sections 445—463 of the German Code of Civil Proce- 
dure in its original version of 1877. Under these provisions the party who has 
the burden of proof and would otherwise be unable to prove a material fact within 
the knowledge of the other, could challenge the latter to swear that the former's 
factual allegation is not true. In such cases the court would render a conditional 
final judgment to the effect that decision would go to the party challenged if he 
would swear the oath, but to the challenger if the oath were not sworn. One or 
the other alternative would take effect immediately depending on whether or not 
the oath would be sworn. This kind of procedure was abolished by the Law of 
October 27, 15,33 (R-G Bl. 1933 I 779, 781), 

39. The parallel drawn by Weber is first that between the Roman litis con- 
testativ on the one hand and the Germanic Urteiherfulhtngsgeldbnis on the other. 
The similarity between them is that both constituted, as it were, agreements be- 
tween the parties to submit to the decision that would be rendered. The second 
parallel seems to be that between the Roman litis contestatio and the Germanic 
conditional or proof judgment (see n. 38 swpra), which also existed in England 
until trial by jury replaced the other modes of proof such as the ordeal and trial 
by combat. 

40. Cf. j«fra,ch.IX:i andch.X:3- 

4r. Palaver — "A talk, parley, conference, discussion; chiefly applied to con- 
ferences, with much talk, between African or other uncivilized natives, and 
traders or travellers," 7 Oxford English Dictionary (1933) 390; cf. Lb- 

TOURNEAU, L'EVOLUTION pJRIDIQUB (189O 78, 89, 

42. W. MuNZTNGER, OSTAPRJKANISCHS STUDEN (1864) 478. 

43. See A. Elkin, The Australian Aborigines O938) 28-31, 36-37, 
102; and literature there cited; Spencer, The Arunt a (1927) I, 11-13. 

44. Hans Christian Monrad, Gemalde der K-uste von Guinea und der Ein- 
wohtter derselben. Trans, from the Danish by H. E. Wolf, 1824 (describes a 
journey in 1 805-1 809). (W) 

45. M. J. Hbrsxovits, Dahomey, An Ancient West African Kingdom 
(1938) II, 5-16; R. Rattray, Ashanti Law and Constitution (Oxford, 
1929); D. Westermann, The African To-day and To-morrow (3rd ed. 
1949) 72; E. C. Mhck, Law and Authority in a Nigerian Tribe (1937) 247 

etsea. 

46. In the German language this distinction is obscured by the fact that the 
same word "Recht" means both "law" and "right," 



782 BCONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

47. On the slow development of the English "statute" from a specific royal 
giant or command into an act of legislation in the modern sense, see Allen 357; 
Plucknett, Statutbs and Their Interpretation in the First Half op 
the 14TH Century (1922); Thorne, op. cit. supra i>. 23; Richardson and 
Sayles, The Early Statutes (1934) 50 L.Q. Rev, 201, 540; see also the concise 
survey in Radin 317 et seq. 

48. "Statutes in derogation of the common law are to be interpreted nar- 
rowly!" 

49. The decree of a Roman magistrate was not binding upon his successor; 
the praetor's edict had thus to he repromulgated whenever a new praetor took 
office. The situ; lion was different, however, where the magistrate had asked for 
(rogore) and obtained the assent of the popular assembly (comifia). In that case 
his act was formally elevated to the rank of a lex or, more specifically, a lex ro- 
gata. It was distinguished from the lex thta, which was a decree issued by the 
magistrate alone and without the assent of the popular ossembly. It was used 
mostly for purposes of provincial and local government and of emergency legisla- 
tion. It was characteristic of the Roman legislative process that the popular as- 
semblies could neither initiate legislation nor discuss it. The draft law was placed 
before the assembly by the moving magistrate (jogatio) and the assembly would 
only express its assent (juti Togas') or its refusal. Cf. 3 Mommsen, 310 et <,eq. 

50. Frederick I (Barbarossa), Emperor 1152-1190. Whether it can really be 
said that he was "the first" to utilize the Roman conception of statute is open to 
doubt. The idea that the Gennanic emperors were the successors of the Roman 
csesars can be found ever since the renewal of the Empire by Charlemagne in 
a.». 800; cf. C. Dawson, Thk Making of Europe (1935) 214 et set).: P. 

XtlSCHAKER, ElIROPA UND T>\S ROM1SCHE ReCHT (1947) 6-^4, and the VUSt 

literature cited there. 

Frederick I was particularly outspoken in this idea and in his insistence i:[»m 
Roman law constituting the continuing Saw of the Empire, in which his own 
constitutiones were to occupy the same position as those of his predecessors of An- 
tiquity. Cf. 1 Stobbe 617. 

51. For a concise account of the "written law" in the Prankish Empire •m:- 1 
Smith 124 et seq. 

52. Blacxstone I, 172, 173. 

53. As to the Schoffen see Brunner I, 209; II, 296-303; Engrlmann and 
Millar 98 et seq., 144 et seq.; Smith 135, 247, et seq. 

54. As to the ancient laws of Ireland and the so-called Brehon laws, see 
Maine. Institutions 9, 24, 279 et seq.; J. H. Wigmore, Panorama of the 
Worlo's Legal Systems (1936) 669-713, and literature cited at 730; E. Mac- 
Neili, Imvj — Celtic 9 Encyc. Soc. Sci. 246, 266 (bibliography). 

55. Maine 662-669; Mac Ne ill, loc cit. 

56. Bhcnneh, Rechtsgeschichte I, 204, 209; II, 295-300, 302, 472; 
Smith, 134; see also Haff, Der germanische Rechtsprecher (1948) 66 Sav. Z. 
Germ. 364. 

57. The "law speaker" in Sweden was the lagkntather; see E. Kiinssberg, 
Germanic Law 9 Encyc. Soc. Sci. 237; v. Amira; Nordgermanisches Obli- 
gationenrecht (1882) 5, 15, 20, 143; see also Wigmore, op. cit. supra n. 54, 
at 818; Bhyce 328, 329, 332; Maurer, Vorlesungen user altnohdische 
Rechtsgeschichte (1907/10) IV, 263 et seq., 280; v. Amira, op. cit.; R. 
Schroder, Gesetzspreckeramt und Priestertum bei den Germanen (1883) 4 Sav. 
Z. Germ. 215, and literature there cited; K. Haff, Der germanische Recht- 
sprecker als Trager der Kontinuitat (1948) 66 Sav. Z. Germ. 364. - , 

;8. The elected iudex — dsega— had to find the appropriate law and to submit 



Hi } Emergence and Creation of Legal Norms 7 8 3 

it to the community for approval. Brunner I, 205; Smith 37; see also Schroder 
221. (On the &sega in Frisia and "law speakers" m other German territories of 
the Carolingian period, cf. also P. Heck, Die altfriesische Gerichtsverfassung 
(Weimar ^94); id., "Die friesische Gerichtsverfassung u. die mittelfriesischen 
Richtereide," Mitt. d. Instituts f. osterr. Geschichtsforschung, Suppl. VII 
(1907), 74 iff.; id., bersetzungsprobleme im fruhen Mittelalter (Tubin- 
gen 193 1 ), 36-43 and passim.— [Wi]) 

59. Weber speaks of the Introduction to the "Lex Salica." The older version 
of the Salic Laws, which alone is prefaced by the Introduction mentioned in the 
text, is more correctly referred to as the "Pactus legis Sahcae." Its text is as 
follows: 

"Between the Franks and their great ones it was agreed and resolved that one 
should cut down all causes of quarrels in order to preserve the 2eal for peace 
among them. As they surpass all neighboring tribes by the strength of their arms, 
so they should also surpass them by the authority of their laws. Claims for 
amends should thus be terminated according to the kinds of dispute. Hence there 
were chosen from among several men those called Visogast, Salegast, A togas t, and 
Vidogast, from places on the other side of the Rhine, to wit, Bodoheim, Sale- 
heim, and Vidoheim. Thev assembled at three gemots, carefully discussed all 
causes of disputes, and decreed the decisions for every one of them." (Prologue 
to the "Lex Salica," translated from the Latin text in K. A. Eckhardt, Die 
Gesetze des Merowingerreiches (1935) 481. 

60. Capitula legibus addenda— royal acts (capitida) amending those popular 
laws which had been officially compiled, such as the lex Salica or the lex Ribua- 
ria; cf. Brunner I, 543-550; on the Frarikish capitularies in general, see Pol- 
lock and Maitlano I, 16, 

61. P. Carus, Oracle of Yahveh (1911) 22-2.6, 32; S. A. Strong, On 
Some Oracles to Esarhaddon and Asurbanifal ( r 893). 

62. F. W. H. Myers, Greek Oracles (in E. Arbott, Hellenica, 1880) 425, 
453-465; W. Haxliday, Greek Divination (1913), cc. iv, x; Bouche-Leclero, 

HiSTOIRE DE LA DIVINATION DANS 1,'aNTIQUITE (1879), 4 vols; See esp. Ill, I 47, 

149-152, 156-161. 

63. Sec Carus, op cii. 1-2.1, 33, 35. For a comparison of Israel and Egypt, 
ibid,, pp, 1 1 — 1 2, 

64. The college of t hes mot he tai seems to have been a judicial body in Athens, 
created for the purpose of relieving the executive magistrates {archontes) of sonic 
of the burden of their judicial duties. See I Bonner and Smith, 85. 

65. The Umstand are the members of the popular assembly (fhiwg, gemot) 
who surround the judgment place and give or refuse their assent to the judgment 
proposed. 

66. On Urteihichelte see Brunner II, 471. 

67. This is Homer's famous description in the Iliad C249" 7 -5o8); cf. Maine, 
385, and note "S" (by F. Pollock) at 405-407; and especially, H. J. Wolff, 
The Origin of Judicial Litigation among the Greeks 4 Traditio (1946) 34-49, 
with bibiiographv on p. 82. 

68. Sohm, Fritikisches RecJit uml romisches Ret Jit (1880) 1 Sav. Z. Germ. 
1,9. 

69. Annua! visitation of the diocese by the bishop seems to have been an 
ancient custom in the church In the Frankish empire this custom seems to have 
been neglected during the later Merovingian period. It was revived under the 
Carlovingians in the seventh century, and there «'as separated from the general 
visitation a special institution for the discovery and punishment of ecclesiastic 3 1 
crimes, the so-called itinerant court (SetufgericJit), It was held as an inquest at 



784 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. Vlll 

which in each parish a group of "mature, honest, and truthful men" (iwratores) 
were required under oath to inform the bishop's itinerant judge of all crimes of 
which they had knowledge. Cf. 5 Hinschius, System nss katholischen Kir- 
chenkbchts (1895) 425. On the role of the ecclesiastical Sendgerickt as a model 
for the royal inquest and thus for the development of the jury system, see Brun- 

NBR, SCHWURGERICHTE (1876). 

70. Weber's assumption of the existence of successive versions of the Russ- 
kaya Pravda seems to be based upon the writings of Goetz (Das mssische Recht 
[1910] 24 Z.f. vgl. Rw. 241; [1914] 31 Z.f. vol. Rw. i) and Kohler (Dtc 
Russkaja Pfawda und das altslawische Recht [1916] 33 Z.f. vgl. Rw, 289). 
Upon these studies doubt has been thrown by the latest investigation (Academy 
of the U.S.S.R., Pravda Russkaya 1940, I, 29, 55), where it is pointed out that 
the oldest existing manuscript dates from 1282 and that all earlier dates ascribed 
to later editions have been purely conjectural. Controversy also exists with refer- 
ence to the nature of the Russkaya Pravda. According to Kluchbvsky (His- 
tory of Russia, trans. Hogarth [191 1}, cc. ix and x) the book is neither a 
princely enactment nor a private law book but a collection of secular customs 
which was made by the Church to be applied in its courts when they had to 
exercise general jurisdiction over its nonclerical subjects. For an English trans- 
lation of the Russkaya Pravda see Vernadsky, Medieval Russian Laws 

Os>47)- 

71. Hoph'te army (Greek): an army composed of heavily armed soldiers. The 
term is used by Weber as a term of art. 

72. Rrovocatw — the right of a Roman citizen convicted of a capital crime to 
appeal to the people assembled in the comitia centuriata. See Jolowicz 320 et 
seq. 

73. See Brunnbr I, 204; Smith 38; Engelmann and Millar 96. 

74. Cf. L. Asmis, Die Stammesrechte der Bezirke Misahohe, Anecho und 
Lomehnd (Sckutzgebiet Togo) (191 1) 26 Z.F. vlg. Rw. i. 

75. See supra n. 70; cf. J. Kohler, Die Russkaja Pravda und das altslawiscke 
Recht (1916) 33 Zbitschrift fur offentliches Recht 289; but see infra 
sec. vi:i andn. 8. 



IV 

The Legal Honoratiores and 
the Types of Legal Thought 1 



Fox the development of a professional legal training and, through 
it, of specifically legal modes of thinking two different lines are pos- 
sible. The first consists in the empirical training in the law as a craft; 
the apprentices leam from practitioners more or less in the course of 
actual legal" practice.' Under the second possibility law is taught in 



iv ] ^Bfll Honoratiores and Types of Legal Thought 785 

special schools, where the emphasis is placed on legal theory and 
"science," that is, where legal phenomena are given rational and sys- 
tematic treatment. 



1 . Empirical Legal Training: Law as a "Craft" 

A fairly pure illustration of the first type is represented by the 
guildlike English method of having law taught by the lawyers. During 
the medieval period a sharp distinction was made between advocate 
and attorney. 2 The need for an advocate was due to the peculiarities 
of procedure before the popular assemblies; the attorney emerged when 
procedure began to be rationalized in the royal courts with their jury 
trial and the increasing evidentiary importance of the record. 3 In the 
French procedure, the verbal formalism which grew out of the strict ap- 
plication of the accusatorial principle before the popular assembly, gave 
rise to the need of an avant-rulier (avant-parlier). The legal maxim 
fautes volent exploits* and the formalistic effect of the words spoken 
compelled the layman to seek the assistance of an avant-rulier or pro- 
locutor who, upon the party's request, would be assigned to- him by 
the judge from among the judgment-finders,* and who would publicly 
"speak for," and in the name of, the party the words required for the 
progress of the case. Among other advantages there was thus conferred 
upon the litigant, since the formalistic words had not been pronounced 
by the litigant himself, the advantage that he could "amend" the ver- 
bal mistakes that might have been committed. 8 Originally, the advocate 
stood before the court next to the party litigating. His position was thus 
quite different from that of the attorney {avoui, Anwalt, procurator, 
solicitor), who assumed the technical tasks of preparing the case and 
obtaining the evidence. But the attorney could not assume these func- 
tions until procedure had undergone a considerable degree of rationali- 
zation. Originally an attorney in the modern sense was not possible 
at all. He could not function as the "representative" of the party until 
procedural representation had been made possible, as in England and 
France, by the development of the royal law; as a general rule, an 
attorney's appointment to such a representative function rested upon 
special privilege. 7 The advocate was not prevented by his acting for 
the party from participating in the actual finding of the judgments; 
indeed, he would no: have been able to propose a judgment unless 
he was one of the judgment-finders. The attorney, however, became 
exclusively die representative of the party and nothing else. In the 



786 economy And law (sociology of law) [ Ch. Vlll 

■■■.'■ : ...1 ,. .. ■"-. . y. 
royal courts of England,' attorneys were originally recruited, almost 

without exception, from among those persons who could write, i.e., 
the clergy, for whom this activity constituted a major source of income.* 
But the preoccupations of ecclesiastical service on the one hand, and the 
expansion of legal training among the upper classes on the other, 
resulted not only in the progressive: exclusion of the clergy from the 
legal profession, but also in the organization of the lay lawyers in the 
four Inns of Court, and in the pronounced movement on their part to 
monopolize the judicial positions as well as those other official jobs 
which required legal knowledge; the lawyers indeed succeeded in the 
course of the 15th and 16th centuries. With the coming to the fore of 
rational modes of procedure, the old -prolocutores disappeared. But a 
new aristocracy of legal honorattores came into being, consisting of 
counsels, Serjeants, and barristers, i.e., of those admitted to represent, 
and plead for; 'litigants before the royal courts. 8 Indeed, this. hew type 
of lawyer tookover many of the characteristics of the old "prolocutors." 
He was subject to a strict professional etiquette. He refused to have 
anything to do with the technical services required in the case, and 
ultimately he lost all personal contact with the party whom he would 
not even see face to face. 19 The. handling of the case lay in the., -hands 
of "attorneys" or "solicitors/' a -stratum of business . people, . neither 
organized in guilds nor possessing the legal education provided by the 
guilds; they were the intermediaries between the party and the "barris- 
ter" to prepare the "brief" or status causae so that the barrister could 
present it before the court. The practicing barristers lived together in 
communal fashion in the corporate and closed guildhouses. The judges 
were exclusively chosen from among them and continued to share the 
communal life with them. "Bar" and "bench" were two functions of 
the corporate and later highly exclusive legal profession; in the Middle 
Ages its members came largely from jhe nobility, and admission to the 
■gujjd was regulated with an ever, increasing measure of autonomy. 
There was, a four-year novitiate, connected with instruction at the guild 
school; the call to the bar conferred the right to plead; for the rest, 
training was purely practical. The profession insisted on the main- 
tenance, of the code of etiquette, especially with regard to the observ- 
ance of minimum fees, all fees, however, to be paid voluntarily and 
not to be actionable- The lecture courses in the Inns were only intro- 
duced as the result of the competitive struggle with the universities. 11 
As soon as the monopoly was achieved, the lectures began to decline, 
to he ultimately discontinued altogether. Thereafter, training was purely 
empirical and practical and led, as in the craft guilds, to pronounced 
specialization. 



iv } Legal Honoratiores and Types of Legal Thought 787 

This kind o£ legal training naturally produced a formalistic treat- 
ment of the law, bound by precedent and analogies drawn from prece- 
dent. Not only was systematic and comprehensive treatment of the 
whole body of the law prevented by the craftlike specialization of the 
lawyers, but legal practice did not aim at all at a rational system but 
rather at a practically useful scheme of contracts and actions, oriented 
towards the interests of clients in typically recurrent situations. The 
upshot was the emergence of what had been called in Roman law 
"cautelary jurisprudence," as well as of such practical devices as pro- 
cedural fictions which facilitated the disposition of new situations upon 
the pattern of previous instances." From such practices and attitudes 
no rational system of law- could emerge, nor even a rationalization of 
the law as such, because the concepts thus formed are constructed in 
relation to^concrete events of everyday life, are distinguished from each 
other by external criteria, and extended in their scope, as new needs 
arise, by means of the techniques just mentioned. They are not "gen- 
eral concepts" which would be formed by abstraction from concrete- 
ness or by logical interpretation of meaning or by generalization and 
subsumption; nor were these concepts apt to be used in syllogistically 
applicable norms. In the purely empirical conduct of legal practice and 
legal training one always moves from the particular to the particular 
but never tries to move from the particular to general propositions in 
order to be able subsequently to deduce from them the norms for new 
particular cases. This reasoning is tied to the word, the word which is 
turned around and around, interpreted, and stretched in order to adapt 
it to varying needs, and, to the extent that one has to go beyond, re- 
course is had to "analogies" or technical fictions. 13 

Once the patterns of contracts and actions, required by the practical 
needs of interested parties, had been established with sufficient elastic- 
ity, the official law could preserve a highly archaic character and sur- 
vive the greatest economic transformations without formal change. The 
archaic case analysis of the law of seisin, for example, which originally 
corresponded to the conditions of peasant tenure and manorial lord- 
ship of the Norman period, persisted to the very threshold of the present 
epoch with, what were from a theoretical point of view, often grotesque 
results in the American Middle West." No rational legal training or 
theory can ever arise in such a situation. Wherever legal education has 
been in the hands of practitioners, especially attorneys, who have 
made admission to practice a guild monopoly, an economic factor, 
namely, their pecuniary interest, brings to bear a strong influence upon 
the process not only of stabilizing the official law and of adapting it to 
changing needs in an exclusively empirical way but also of preventing 



788 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

its rationalization through legislation or legal science. The lawyers' 
material interests are threatened by every interference with the tra- 
ditional forms of procedure, and every interference menaces that situa- 
tion in which the adaptation of the scheme of contracts and actions to 
both the formal norms and the needs of the interested parties is left 
exclusively to the legal practitioners. The English lawyers, for example, 
were largely successful in preventing both a systematic and rational 
type of lawmaking and a rational legal education, such as exists in the 
Continental universities;" the relationship between "bar" and "bench" 
is still fundamentally different in the English-speaking countries from 
what it is on the Continent. In particular, the interpretation of newly ' 
made laws lay, and still lies, in the hands of judges who have come 
from the bar. The English legislator must, therefore, take special pains 
with every new act to exclude all sorts of possible "constructions" by 
the lawyers which, as has so frequendy happened, would be direcdy 
contradictory to his intentions. 1 * This tendency, partly immanent, partly 
caused by economic considerations, and partly the result of the tra- 
ditionalism of the legal profession, has had the most far-reaching 
practical consequences. For example, the absence of a system of regis- 
tration of title, and consequendy the absence of a rationally organized 
system of real estate credit, has been largely due to the lawyers' eco- 
nomic interest with regard to the fees for that tide examination which 
must in every transaction be made because of the uncertainty of all 
land tides. It has also had a deep influence upon the distribution of 
land ownership in England and, quite, particularly, upon the peculiar 
form of the land lease as a "joint business." 17 

In Germany this type of legal profession with a clearly defined 
status or guild organization did not exist; for a long time it was not 
even necessary for a litigant to be represented by a lawyer. In France 
the situation was similar. It is true that the formalism of the procedure 
before the popular tribunals had necessitated the use of a frolocutor, 
and the regulation of their duties had become universally necessary; 
the earliest such regulation was promulgated in Bavaria in 1330. But 
the separation of the counsel from the attorney was achieved in Ger- 
many quite early, as the result essentially of the spread of Roman law. 1 * 
The requirement of special legal training established itself relatively 
late and was usually caused by complaints of the Estates at a time 
when the Roman-law oriented university education already determined 
the standard of the upper-class legal practitioners. 19 A powerful guild 
organization was prevented from arising because of the decentraliza- 
tion of the administration of justice. Thus the status of the lawyers 
was determined by governmental regulation rather than by profes- 
sional autonomy.™ 



iv } __ Legal Honoratiores and Types of Legal Thought 7 8 9 

2. Academic Legal Training: Law as a "Science" — Origins 
in Sacred Law 

Modern legal education in the universities represents the purest 
type of the second way of legal training. Where only law-school gradu- 
ates are admitted to legal practice, the universities enjoy a monopoly of 
legal education. 21 At the present time it is supplemented by apprentice- 
ship in legal practice and another examination; it is in this manner 
that legal education is nowadays everywhere combined with empirical 
training. The Hanseatic cities were the only places in Germany where 
the academic degree alone was sufficient for admission to the bar, but 
even there the requirement of apprenticeship has recently been intro- 
duced," 

The legal concepts produced by academic law-teaching bear the 
character of abstract norms, which, at least in principle, are formed and 
distinguished from one another by a rigorously formal and rational 
' logical interpretation of meaning. Their rational, systematic character 
as well as their relatively small degree of concreteness of content easily 
result in a far-reaching emancipation of legal thinking from the every- 
day needs of the public. The force of the purely logical legal doctrines 
let loose, and a legal practice dominated by it, can considerably reduce 
the role played by considerations of practical needs in the formation of 
the law. It took some effort, for instance, to prevent the incorporation 
into the German Civil Code of the principle that a lease is terminated 
by the sale of the land." That principle had originated in the distribu- 
tion of social power in Antiquity, However, the plan of taking it over 
into the new Cede was entirely due to a blind desire for logical 
consistency. 

A peculiar special type of rational, though not juristically formal, 
legal education is presented in its purest form in the legal teaching in 
seminaries for the priesthood or in law schools connected with such 
seminaries. Some of its peculiarities are due to the fact that the priestly 
approach to the law aims at a material, rather than formal, rationaliza- 
tion of the law. This point will be discussed at a later stage [see sec- 
tion v]; at this place we shall only deal with those results which are 
produced by certain general characteristics of this type of legal educa- 
tion. The legal teaching in such schools, which generally rests on either 
a sacred book or a sacred law fixed by a stable oral or literary tradition, 
possesses a rational character in a very special sense. Its rational char- 
acter consists in its predilection for die construction of a purely theo- 
retical casuistry oriented less to the practical needs of the groups con- 
cerned than to the needs of the uninhibited intellectualism of scholars 



7 9© ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

Where the "dialectical" method is applied it may also create abstract 
concepts and thus approximate rational, systematic legal doctrine. But 
like all priesdy wisdom, this type of legal education is hound by tradi- 
tion. Its casuistry, inasmuch as it serves at all practical rather than 
intellectual needs, is formalistic in the special sense that it must main- 
tain, through re-interpretation, the practical applicability of the tradi- 
tional, unchangeable norms to changing needs. But it is not formalistic 
in the sense that it would create a rational system of law. As a rule 
it also carries with it elements which represent only idealistic religious 
or ethical demands on human beings or on the legal order, but which 
involve no logical systematization of an actually obtaining legal order. 

The situation is similar in the case of law schools which, while not, 
or not entirely, under immediate priestly control, are yet bound to a 
sacred law. 

In their purely external form, all "sacred" laws tend to approximate 
a type which is shown most purely in Hindu law." Insofar as com- 
mandments are not fixed, as in scriptural religion, by revelation in 
writing or by an inspired recording of revelations, sacred law must be 
transmitted "authentically," i.e., by a closed chain of witnesses. But in 
the scriptural religion, the authentic interpretation of the sacred norm, 
as well as its supplementation by other traditions, must also be guar- 
anteed in written form. This is one of the most important reasons 
why Hindu law, in common with Islamic law, 2 * has rejected the purely 
scriptural tradition. The tradition must have passed by word of mouth 
directly from one reliable holy man to the next. Reliance on the written 
word would mean that one believed more strongly in parchment and 
ink than in the prophets and the teacher, i.e., those persons who are 
charismatically qualified. The fact that the Koran itself was a written 
work, whose chapters (suras) were believed to be promulgated by 
Mohammed, after consultation with Allah, in carefully written form, 
was explained in Islamic teaching by the dogma of the physical crea- 
tion by Allah himself of the individual copies of the Koran. For the 
hadhhs™ orality was a condition of validity. It normally is only at a late 
stage that a scriptural text will come to be preferred, viz., when the 
unity of traditional interpretation is endangered by purely oral trans- 
mission. At this stage new revelations are then rejected, typically with 
the argument that the charismatic age has long since come to an end. 
In such situations great emphasis is laid upon the proposition which is 
basic to the "institutional" character of a religious community and which 
has well been formulated recently by Freiherr von Herding," namely, 
that it is not the holy writ which guarantees the truth of the tradition 
and of ecclesiastical doctrine but rather the holiness of the church and 
its tradition, to which God has given the truth in trust and-which thus 



iv ] __ Legal Honoratiores and Types of Legal Thought 791 

guarantees the genuineness of the holy writ. This position is consistent 
» and practical: the opposite principle, as it was held by the early Protes- 
tants, exposes the sacred writ to philological and historical criticism. 

The Vedas are the sacred books of Hinduism. They contain little 
"law," even less than the Koran or the Torah. The Vedas were consid- 
ered as shruH ("revelations"), while all derived sacred sources were 
viewed as smriti ("recollection" or tradition). The most important 
categories of secondary literature, the prose Dharma-Sutras and the 
versified Dharma-Shastras" (the last ranking entirely as smriti, while 
the former occupy a middle position), are, on the contrary, compendia 
of dogmatics, ethics, and legal teaching standing alongside the tradi- 
tion of the exemplary lives and teachings of holy men. The Islamic 
haditks correspond exacdy to this latter source; they are traditions con- 
cerning the exemplary deeds of the prophet and his companions, and 
those sayings of the former which have not been incorporated into 
the Koran. The difference is that in Islam the prophetic age is regarded 
as having ended with the prophet. 

For the Hindu Dharma books one can find a counterpart neither 
in Islam or Christianity, which are book religions with only one holy 
writ. The Dharma books, and especially one of the latest, viz, that of 
' Manu, were important for a long time in the courts as "books of au- 
; thority," i.e., private works of legal scholars, until they were displaced 
in legal practice by the systematic compilations and commentaries of 
the schools. This displacement was so complete that by the time of the 
British conquest legal practice was dominated by one such tertiary 
- source, the Mitakshara, dating from the eleventh century. A similar 
fate befell the Islamic Sunna through those systematic compendia 
and commentaries which achieved canonical status. The same is also 
true, though to a somewhat lesser extent, of the Torah in relationship 
to the rabbinical works of Antiquity (the Talmud) and the Middle Ages. 
, Rabbinical lawmaking 1 in Antiquity, and, to a certain extent, even up 
to the present, and Islamic lawmaking in a great measure even today, 
have rested in the hands of the theologian jurists responding to con- 
crete questions. This feature was unknown both to Hinduism and to 
the Christian church, at least after the extinction of charismatic 
prophecy and the Didaskalia, which were, however, of an ethical rather 
than a legal character.** 

The reasons why Christianity and Hinduism did not have this type 
of lawmaking were quite different. In Hindu law, the house priest of 
the king is 3 member of his law court, and he atones for wrong judg- 
ments by fasting. All important cases have to come before the king's 
court. The unity of the secular and the religious administration of 
justice is thus guaranteed, and there is, therefore, no place for any 



7 9 ^ ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

licensed class of responding legal honoratiores. The Occidental Chris- 
tian church, on the other hand, had created for itself organs of ra- 
tional lawmaking in the Councils, the bureaucracies of the dioceses, and 
the Curia, and, quite particularly, in the papal powers of jurisdiction 
and infallible exposition of doctrine. No other of the great religions 
has ever possessed such institutions. Thus in Occidental Christianity, 
the legal opinions and decrees of the ecclesiastical authorities, together 
with the Conciliar Canons and the papal decretals, have played the 
role which is played in Islam by the fetwa of the mufti, and in Juda- 
ism by the opinions of the rabbis. 30 Hindu legal erudition was to a 
great extent purely scholastic, theoretical, and systematizing; it was the 
work of philosophers and theorists and strikingly possessed those features 
of a sacrally bound, theoretical, and systematizing legal thinking which 
has little contact with legal practice. In all these respects it differs from 
Canon law. All typically "holy" laws, and thus quite particularly that 
of India, are products of the schools. The treatises always present an 
abundance of casuistry about completely obsolete institutions. F :amples 
are provided by Manus treatment of the four castes, or the presentation 
of all the obsolete parts of the shart'ak u in the works of the Islamic 
schools. 32 But because of an overriding dogmatic objective and the 
rational nature of priestly thinking, the systematic structure of such law 
books frequently tends to be more rational than that of similar crea- 
tions unconnected with priesthood. The Hindu law books, fpr example, 
are more systematic than the Mirror of Saxon Law. But the systematiza- 
tion is not a legal one but one concerned with the position of status 
groups and the practical problems of life. Since the law is to serve holy 
ends, these law books are therefore compendia not of law alone but 
also of ritual, ethics, and, occasionally, of social convention and etiquette. 
The consequence is a casuistic treatment of the legal data that lacks 
definiteness and concreteness, thus remaining juridically informal and 
but moderately rational in its systematization. For in all these cases, 
the driving force is neither the practicing lawyer's businesslike concern 
with concrete data and needs, nor the logical ambitions of the juris- 
prudential doctrinaire only interested in the demands of dogmatic logic, 
but is rather a set of those substantive ends and aims which are foreign 
to the law as such. 



3. Legal Honoratiores and the Influence of Roman Law 

The effects of legal training are bound to be different again where 
it is in the hands of konoratiores whose relations with legal prac- 
tice are professional but not, like those of English lawyers, specifically 



iv } Legal Honoratiores and Types of Legal Thought 7 9 3 

guild-like or~income-oriented. The existence of such a special class of 
honoratiores is, generally speaking, possible only where legal practice 
is not sacredly dominated and legal practice has not yet become too 
involved with the needs of urban commerce. The medieval empirical 
jurists of the Northern European continent fall into this class. It is, of 
course, true that where commercial activity is intense the function of 
the iegal honoratiores is merely shifted from the consultants to the 
cautelary jurists; and even this shift occurs under special conditions 
only. After the decline of the Roman Empire, the notaries were the only 
remaining group in Italy by whom the traditions of a developed com- 
mercial law could be perpetuated and transformed. 58 They were, for a 
long time, the specific and dominant class of legal honoratiores, In the 
rapidly growing cities they formed themselves into guilds and con- 
stituted an important segment of the -pcrpolo grasso, that is, they were 
also a politically important class of honoratiores. Indeed, mercantile rela- 
tions operated here from the very beginning through notarial docu- 
ments. The procedural codes of the cities, such as Venice, preferred the 
rationality of documentary evidence to the irrational means of evidence 
of the ancient procedure of the popular courts. We have already spoken 
of the notaries' influence upon the development of commercial paper 
[see. « : 3 J, but the notaries were one of the most decisive strata in 
the development of the law in general, and until the emergence of the 
class of legally trained judges in Italy they were probably the most 
decisive stratum. Like their forerunners in the ancient Hellenistic East, 
they took a decisive part in the interlocal assimilation of the law and, 
above all, in the reception of Roman law, which, here as there, was 
first brought about in the documentary practice. Their own traditions, 
their long-lasting connection with the imperial courts, the necessity 
of quickly having on hand a rational law to meet the needs of the 
rapidly growing requirements of trade, and the social power of the great 
universities caused the Italian notaries to receive Roman law as the 
very law of commerce, especially since, :;i contrast to England, no cor- 
porate or fee interests were standing in the way. Thus the Italian 
notaries were not only the oldest but also one of the most important of 
the classes of legal honoratiores who were interested and directly par- 
ticipated in the creation of the «s«s modernvs of Roman law. Unlike 
the English lawyers, they did not act as the bearers of a national body 
of law. Again, they could not compete with the universities through 
a guild system of legal education of their own simply because, unlike 
the English lawyers, they did not enjoy that nation-wide organization 
which was made possible in England by the concentration of the admin- 
istration of justice in the rojal courts. But thanks to the universities, 
Roman law in Italy continued as a world force, influencing the formal 



7 9 4 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

structure of law and legal education even after its original political 
sponsor and interested protector, the Emperor, had become politically 
unimportant. The fodesta of the Italian cities were often chosen from 
among the honoratiores who had been trained in the universities; the 
signorie were based completely on political doctrines derived from Roman 
law. 3 * In the cities of the French and Eastern Spanish coasts the 
notaries' position was quite the same. 3a Essentially different, however, 
was the status of the honoratiores in Germany and Northern France. 
They were, at least at first, involved less in urban legal relations than 
as aldermen (Schoffen^) or officials in the legal affairs and the adminis- 
tration of justice of rural manors. 3 * Their most influential types, such as for 
example, Eike von Repgow or Beaumanoir, 3V created a systematization 
of the law which was based on the concrete problems of everyday prac- 
tice and their essentially empirical concepts, slightly refined by abstrac- 
tion. The "law books" which they compiled aimed at the restatement 
of the existing tradition; although they contained some occasional argu- 
mentation, they had little specifically juridical ratio. Indeed, the most 
important of these works, the Mirror of Saxon Law, contained a good 
many constructions of legal institutions which were not parts of the 
existing law at all but rather constituted fanciful attempts, inspired by 
the author's desire for completeness or his predilection for sacred num- 
bers, to fill in gaps or complement other inadequacies. 38 Formally, their 
systematic records were private works just like those of the Hindu, 
Roman, and Islamic jurists. Like these, they have influenced legal 
practice considerably as convenient compendia and some of them even 
came to be recognized by the courts as authoritative source books. Their* 
creators were representatives of a system of administration of justice by 
honoratiores but, unlike the English lawyers and the Italian notaries, 
they did not constitute a strong organized guild which, by corporate 
and economic interests, through a monopoly of the bench and a central 
position at the seat of the central courts, could have given them a 
measure of power which neither King nor Parliament could have easily 
brushed aside. Hence they could not, like the English lawyers, become 
the bearers of a corporate legal education and were thus unable to 
produce a fixed empirical tradition and a legal development that could 
have provided an enduring resistance against the subsequent encroach- 
ment of the jurists trained by rational university education. Formally, 
the law of the empirical law books of the Middle Ages was fairly well 
organized; systematically and casuistically, however, it was less rational, 
and oriented more towards concrete techniques of distinction than 
towards the abstract interpretation of meaning or legal logic. 

The particular influence of the ancient Roman jurists 38 rested on 
the fact that the Roman system of administration of justice by honora- 



iv ] kegil Hor.oratiores and Types cf Legal Thought 7 9 5 

tiores, which eeonc.niized on public officials, accordingly also minimized 
their instructions! role in the concrete conduct of a lawsuit. But this 
specific fact which distinguished Rome from, for instance, the Hellenic 
democracy also excluded the "kadi justice" 1 " as practiced in the Attic 
people's courts- The official presidency over the course of the lawsuit 
was preserved together with the separation of power between the magis- 
trate and the judgment finders. The combination of these factors created 
the specifically Roman practice of trial instruction (Prozessinstrvktion) 
through a strictly formal order of the magistrate to the citizen judge (the 
index), giving him directions with regard to those issues of law and fact 
according to which he should grant or deny the plaintiff's claim. 41 

The magistrate, especially the aedilis and praetor, eventually re- 
corded the schemata of these trial instructions in his "edict" 4 - at the 
beginning of his year of office. It was, however, only relatively late that, 
in contrast with the Nordic lag saga he was regarded as being bound 
by the content of these "edicts." Naturally, in composing his edict the 
magistrate was advised by legal practitioners, and the edicts were thus 
continuously adapted to newly emerging needs. In the main, however, 
each magistrate simply took over the edict of his- predecessor in office. 
Hence, the great majority of die recognized causes of action had nat- 
urally to be defined not in terms of concrete facts, but by the legal con- 
cepts of everyday language. The use of a juridically inappropriate for- 
mula by the party having to choose the appropriate action thus resulted 
in the loss of the case. This contrasts with our principle of fact plead- 
ing, under which a presentation of facts will support an action if the 
facts justify the claim from some legal point of view. Obviously under 
the "principle" of "fact pleading" no such sharp legal definition of 
concepts is required as was the case under Roman law where the prac- 
titioner was forced to define the legal terms of common usage with 
juristic rigor and to elaborate sharp distinctions between them. 43 Even 
where the instructing magistrate confined his trial instruction to purely 
. factual matters, as he did in the actiones in factum conceptae,* 4 the 
interpretation assumed a strictly formal character, as a result of the 
then accepted methods of legal thinking. In this state of affairs, the 
practical development of legal technique was at first largely left to 
"cautelary jurisprudence," i.e., to the activities of legal counselors who 
not only drafted the form of contracts for the parties but were also 
expert advisors to the magistrate in his consilium, a consultation that 
was typical for all Roman officials in the preparation of their edicts 
and formulae. Finally, they were legal advisers of the citizen judge 
when he had to decide the questions put to him by the magistrate and 
to interpret his trial instructions. 

According to historical tradition, the consultative activities of the 



7 9 6 ECONOMY AND LAW "(SOCIOLOGY OF LAW) [ Ch. Vlll 

jurisconsults seem first to have been carried out by the pontifices, of 
whom one was chosen annually for this purpose. Under this priestly 
influence the administration of justice, in spite of the codification of 
the Twelve Tables, might easily have assumed i sacrally bound and 
irrational character, similar to that produced in Mohammedan law by 
the consultative activity of the mufti. It is true that religious influences 
seem to have played only a secondary role in the substantive content 
of early Romr.n 'aw, but in its purely formal aspects, which are also 
its most important aspects from a general historical point of view, the 
influence of sacred law wa r - bvioudy considerable, as Demelius has 
made plausible for at least certain important instances. * B For example, 
such important legal techniques as procedural fictions seem to have 
arisen under the influence of the principle of sacred law that simulate 
pro veris accipiuntur .** We may recall the ro!e played in the cult of 
the dead of many peoples by the simuL^;! transaction and also the 
role which ,the simulated transaction had to play in situations in which 
certain ritual obligations were formally fixed in an absolute fashion. 
It was the repugnance to an essentially bourgeois society of such obli- 
gations, which were also economically highly burdensome, which led 
to their replacement by a mere pro forma performance. The substantive 
secularization of Roman life, combined with the political impotence 
of the priesthood, turned the latter into an instrument for the purely 
formalistic and legalistic treatment of religious matters. Furthermore, 
the early development of the technique of cautekry jurisprudence in 
temporal matters resulted in an obvious furtherance of the use of this 
technique in the sphere of the cult. But we may assume with con- 
fidence that the earliest techniques of cautelary jurisprudence were 
at first largely concerned with sacred law. 

Ohe of the most important characteristics of early Roman law was 
its highly analytical nature; this at least is still valid among von Jhering's 
views, of which so many have become obsolete. A lawsuit would be re- 
duced to the basic issues involved and legal transactions were cut down 
to the most elementary logical constituents: one lawsuit for just one 
issue; one legal transaction for just one object; one promise for just one 
performance. 47 The breaking up of the complex situations of life into 
specifically determined elements has been the main achievement of 
the early ius civile, the methodological effects of which have also been 
the most far-reaching. On the other hand, there has resulted from it a 
certain neglect of the constructive synthetic capacity in the. perception 
of concrete legal institutions, as it arises in the case of a legal imagina- 
tion unconfined by logical analysis. This analytical tendency, howeptr, 
corresponds closely to the treatment of ritual obligations in_the Roman 



iv ] _ Legal Honoratiores and Types of Legal Thought 7 97 

national religion. We may recall that the peculiarity of the genuine 
Roman religio, namely, the conceptual, abstract, and thoroughly ana- 
lytical distinction of the jurisdictions of the sacred nutnina [deities], 
resulted in a large measure in a rational juridical treatment of religious 
problems. According to tradition, already the pontifices had invented 
fixed schemata of admissible actions. This pontifical legal technique 
seems to have remained a professionally monopolized secret knowledge. 
The emancipation from sacral lawfinding came only in the third century. 
When trie censor Appius Claudius was trying to establish hi±nsel£ as a 
tyrant, one of his freedmen is said to have published the pontifical 
formulary of actions.** The first plebeian Ponttfex maximus, Tiberius 
Coruncanius, is reported to have been the first to render responses in 
public. 4 * It was only from that stage that the edicts of the officials could 
develop to their later significance and that lay honoratiores came to fill 
the gap as legal .consultants and attorneys. The opinion of counsel was 
communicated orally to private parties and in writing to the official who 
Jiad requested it. Until the period of the Empire the opinion did not 
include any statement of^reasons, resembling in this respect the oracle 
of the charismatic lag saga or the fetwa of the mufti. The expansion of 
professional juristic activity in step with increasing demand brought 
about a formal legal education as early as during the Republic, when 
students (ottdifores) were admitted to the consultations of the legal prac- 
titioners. 

Another cause of the assumption by early Roman law of a highly 
formal and rational character, both regarding the substantive rules and 
their procedural treatment, was the growing involvement of the law in 
ttrhan business activities as carried on through contracts. In this re- 
spect, medieval German law presents a rather different picture, for its 
main concern related to rural matters such as social rank, property in land, 
or family law and inheritance. 

But in spite of its formalism, Roman legal life, until well into the 
time of the Caesars, lacked not only a synthetic-constructive but also a 
rational-systematic character, and it did so much more than has at times 
been assumed. It was the Byzantine bureaucracy which finally systema- 
tized the existing law; but as far as the formal rigor of juridical thought 
was concerned, it stood far behind the achievements of the jurisconsults 
of the Republic and the Principate. It is striking that the systematically 
most useful among all the literary products of the jurisconsults, namely 
the Institutes of Gaius, which was an introductory compendium to the 
study of law, was the work of an unknown person who was certainly 
not an authority in his own lifetime and who stood outside the circle - 
of the legal honoratiores; one may say that Gaius' relation to them was 



7 9 8 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. VIII 

analogous to the relation of the modern cram book to the learned 
treatises of the scholars. But the difference was that the literary products 
of the practicing Roman jurists of that time, to whose circle Gams did 
not belong, did not possess the quality of a rational system, such as 
university teaching tends to produce; they were mainly moderately 
rationally organized collections of individual opinions. 50 

The jurisconsults remained a very specific class of honoratiores. To 
the property-owning strata of Rome they were the universal "fathers 
confessor"" in all economic matters. It is uncertain whether a forma] 
license to render responsa was necessary in earlier times, as a passage in 
Cicero might lead us to suppose." Certainly, it was required at a later 
date. The respowsa-rendering jurists emancipated themselves from the 
methods of the older cautelary jurisprudence, as well as the actual prac- 
tice of draftsmanship, as their legal refinement increased. By the end of 
the Republic they formed themselves into schools. It is true that during 
the Republic „the orators, such as Cicero, showed the tendency, familiar 
from Athens, to argue emotionally and "ad hominem" rather than 
rationally, insofar as the specifically political assize courts (quaestio refe- 
tundarum) came close to assuming the character of popular justice. In this 
way, the orators contributed to the weakening of precise legal con- 
ceptualization; but in Rome this happened almost exclusively in political 
cases. Under the Empire, the administration of justice became entirely a 
specialized professional matter. A part of the jurisconsults were placed 
in an official status vis-a-vis the administration of justice by Augustus' 
grant of the privilege making their resfonsa binding on the judges." 
The jurisconsults ceased to be attorneys (_cdusidic%y, even less could they 
form a lawyers' guild whose interests and intellectual training would 
have been directed to daily practice and the needs of clients. The juris- 
consults had nothing to do with the technical or business aspects of 
attorneyship but were concerned exclusively with the rendering of legal 
opinions about statements of fact which had been prepared by an at- 
torney or a judge. M They were thus in the best possible position to 
elaborate a rigorously abstract scheme of juristic concepts. In this way 
the responding jurisconsults were sufficiently remote from the actual 
contact of legal business to allow them to reduce individual details to 
general principles by employing scientific techniques. This remoteness 
was greater in Rome than it was in England, where the lawyer was 
always the representative of a client. It was, however, the controversies 
between the schools which forced these principles into even greater ab- 
straction." Because of the binding character of their opinions, juriscon- 
sults dominated the administration of justice; however, the responsa 
continued, at least for a time, to be rendered without a statement of 



tv ] Legal Honoratiores and Types of Legal Thought y^y 

reasons, like the sages oracle or the mufti's fetwa. But they began to 
be collected by the jurists and then to be published with comments 
indicating the legal reasons." School discussions and disputations about 
legal cases among and with the auditores grew out of the Iatters' presence 
in the exercise of the consultative practice, but only by the end of the 
Republic did there develop a fixed course of training." Jtrst. as the 
steadily increasing formal study of Hellenic philosophy took on a certain 
significance for juristic thought, so the Hellenic philosophical schools 
served, in many respects, as models for the external organization of the 
schools for lawyers. It was from this pedagogical and .publishing activity 
of the law schools that the technique of Roman law developed from a 
stage when it was strongly empirical, despite the precision of its concepts, 
to increasing rationality of operation and scientific sublimation. But 
theoretical legal training remained secondary to legal practice and this 
fact explains how a slight degree of development of abstract legal con- 
cepts could go hand in hand with a high degree of abstraction in legal 
thinking, wherever the abstract legal concepts would have served essen- 
tially theoretical interests rather than practical requirements- The treat- 
ment of numerous, and apparently heterogeneous, fact situations under 
the one category of locatio, for instance, had important practical con- 
sequences.™ But no direct practical . consequences can arise from the 
elaboration of the concept of "legal transaction," which is intended to 
serve a mere desire for intellectual' organization. Thus neither this con- 
cept nor similai ones, like "claim" or "disposition," existed in Roman law 
of Antiquity, and even in the time of Justinian its general systematiza- 
tion was not rationalized beyond a relatively modest degree. The sub- 
limation of concepts took place almost exclusively in connection with 
some concrete type of contract or form of action. s * 

Two reasons are responsible for the fact that this sublimation never- 
theless led to those results which we have before us now. Decisive was, 
first, the complete secularization of the administration of justice, in- 
cluding the office of jurisconsult. The binding responsum of the Roman 
jurist clearly has a parallel in the fetwa of the Islamic mufti. He too 
is an officially licensed legal consultant. But he receives his training in 
an Islamic school. These schools, to be sure, developed upon the pattern 
of the officially recognized law schools of the late Roman empire. Under 
the influence of the formal training through ancient philosophy, they 
also developed, for certain times at least, methods similar to those of- 
Antiquity. But their instruction remained predominantly theological, and 
the trends just mentioned were thwarted by religious ties and traditional 
observance, by the vagueness and precariousness of sacred law, which 
can neither be eliminated nor be enforced, and by those other features 



800 economy and law (sociology of law) [ Ck. VIII 

which are characteristic of all theocratic justice bound to a sacred writ. 
Legal education thus remained limited there to empirical and mechani- 
cal memorization and theoretical casuistry without contact with life. 

The second reason for the difference between Roman and Islamic 
law lies in the kind of judicial organization and in the politically condi- 
tioned limits which were set to rationalization in the economic field. The 
theological element was completely absent from Roman legal develop- 
ment. The purely secular and increasingly bureaucratic late Roman state 
culled that unique collection of the Pandects from the products of the 
responding jurisconsults and their disciples, whose legal thinking was of 
the utmost precision, however imperfect their "system" may have been. 
Supplemented by autonomous Byzantine ideas, the Roman materials 
thus collected in the Pandects provided the stuff for the legal 
thought of the medieval universities for centuries to come. As early as 
during the imperial period, an increasingly abstract character trait had 
been added as a new element to the age-old indigenous analytical quality 
of the Roman legal concepts. To some extent this abstract character had 
been anticipated by the nature of the Roman forms of action. In every 
one of them the state of the operative facts was expressed in the form 
of a legal concept. Some of these concepts were so formulated, however, 
that they afforded the practitioners, be they cautelary jurists, attorneys, 
or jurisconsults, the opportunity to subsume an extraordinarily diverse 
range of economic situations under one single concept. The adaptation 
to new economic needs thus took place in large measure through the 
rational interpretation and extension of old concepts. It was in this way 
that legal-logical and constructive thinking was raised to the highest 
level to which it can be raised within the range of the purely analytical 
method. Goldschmidt* has properly pointed out the extraordinary elas- 
ticity of such legal concepts as locatw-condactio, emptio^venditio, man- 
datum (and especially actio qttod iussu), depositum, and above all, the 
unlimited capacity of stipufotio as the one constitutum for most of those 
obligations to pay a sum certain for which we have today the bill of 
exchange and other formal contracts. 61 

The specific character of Roman legal logic, as it developed from the 
given conditions, becomes especially clear when one compares it with 
the modes of operation of English cautelary jurisprudence. It, too, 
utilized and manipulated numerous individual concepts with the greatest 
boldness in order to achieve actionability in the most diverse situations. 
But we can easily see the difference between the way in which, on the 
one hand, the Roman jurists used the concept of iussum to achieve both 
the drawee's authority to pay for the drawer and the latter's warranty" 1 
and, on the other hand, the ways in which the English lawyers derived 



iv ] Legal Honoratiores and Types of Legal Thought 8 o i 

the actionability of numerous heterogeneous contracts from the tort con- 
cept of "trespass."" In the latter case, legally heterogeneous phenomena 
are thrown together in order to obtain actionability by indirection. In the 
Roman instance, by contrast, situations which are new and diverse eco- 
nomically, i.e., externally, are subsumed under a single and appropriate 
legal concept. 

One must note, however, that the abstract character of many legal 
concepts which today are regarded as being particularly "Roman" in 
their origin, is not to be found originally, and in some cases did 
not even originate, in Antiquity. The much discussed Roman concept 
of dominium, for example, is a product of the denationalization of 
Roman law and its transformation into world law. Property, in national 
Roman law, was by no means a particularly abstractly ordered institu- 
tion, and it was not even a unitary one in general. * It was Justinian 
who first abolished the fundamental differences and reduced them to 
the few forms which were observable in land law; and it was only after 
the ,old procedural and social conditions of the praetorian interdicts had 
died out that medieval analysis could concern itself with the conceptual 
content of the two Pandectian institutions of dominium and possessio as 
wholly abstract concepts. Nor was the position essentially different with 
many other institutions. In their earlier form, in particular, most of the 
genuine Roman legal institutions were not essentially more abstract than 
those of German law. The peculiar form of the Pandects arose out of the 
peculiar transformations of the Roman state. The sublimation of juristic 
thinking was in itself, as far as its direction was concerned, influenced 
by political conditions which operated in different ways in the Re- 
publican and the late Imperial period. The important technical traits of 
the earlier administration of justice and the jurisconsults were, as we 
have seen, essentially the products of rule by the Republican hon- 
oratiores. But this very rule was not entirely favorable to a professional 
juristic training of the political upper-class magistrates with their short 
terms of office. While the Twelve Tables had always been taught in 
the schools, knowledge of the leges, however, was acquired by the 
Roman republican magistrate mosdy by practical experience. His juris; 
consults looked after the rest for him. -In contrast, the necessity of 
systematic juristic studies was greatly increased by the imperial system 
of legal administration through appointed officials and its rationalization 
and bureaucratization, especially in the provincial service. The general 
effect of all bureaucratization of authority will be seen later in a wider 
context. The systematic rationalization of the law in England, for exam- 
ple, was retarded because no bureaucratization occurred there. As long 
as the jurisconsults dominated the Roman legal administration of justice 



8 O 2 , ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

as the legal honoratiores, the striving for systematization was feeble, and 
no codifying and systematizing intervention by the political authority 
occurred. The downfall of the Roman aristocracy under the Seven was 
correlated with the decline of the role of the responding jurisconsults and 
parallels a rapidly increasing significance of the imperial rescripts in 
the practice of the courts. Legal education, carried on in the later 
period in state-approved schools, assumed the form of textbook instruc- 
tion from the works of the jurists. The courts, too, used them as 
authoritative sources and, in case of dissent among these books, the 
Emperors, by the so-called "Law cf Citations," established both a certain 
order of priority among them and the principle rbat the majority of the" 
approved authors should prevail." The collections of response*, thus 
came to occupy the position held in the Common Law by the collection 
of precedents. This situation conditioned the peculiar form of the 
Pandects and the conservation of that part of classical juristic literature 
which had been incorporated in th'-.in. 



NOTES 

i. On "legal konoratioTes" — see supra, sec. «, n. 18. In effect the present 
section is concerned with the legal profession, its various types, and their influence 
on the formal characteristics of the law. 

A concise survey of the history of the legal profession Jn ancient and modem 
Western civilization will be found, with bibliography, in the article by Hazelrine, 
Radin, and Berle in 9 Encyc. Soc. Sci. 324. To the bibliography should now s be 
added F. Schulz, History, and R. Pound, The Lawyer fbom Antiquity to 
Modern Times (1953). 

%. The most authoritative expositions on the development of the legal pro- 
fession in the Middle Ages are those by H. Brunner: (1) Die Zulassigkeit der 
Anwaltschaft im franzosische n, normtmnischen tmd englischen Rechte des Mittel- 
alters (1878) 1 Z.f. vcl. R. 321 et seq., and the partial translation of it in j 
III. L. Rev. 257; (i) Wort uni Vortn im altfranzosische-n Process in 57 Sitz- 
ungsberichte der Philos.-Hist. Classe der Kaiser lichen Akademee der 
Wissensch. zu Wibn (1868) 655; see also Weber, General Economic His- 
tory 340; Enoelmann and Millar, op. cit. 

3. On the development of jury trial in general see literature cited supra sec. 
Hi, nn. 33,. 34. For the connection between attornatio and the "records" in the 
royal courts, see Brunner, Die Zwiass. der Anwlt., foe. tit. 362: both the attorna- 
tio and the records were allowed only in the curia regis, and their relationship is 
clearly shown in earlier English sources — ibid. 373; Glanville, VIII, 8, § 7; 
Brunner, op. cit. 197. 

4. Fawtes volertt exploits means "errois destroy the acts" Cone mistake nulli- 
fies the whole procedure); concerning this maxim and the old French procedure 
in general, see Brunner, Wort v,nd form im altfranzosischen Process, foe. cit., esp. 
at p. 670. 

5. Cf. supra, sec. «i:6:c. 



iv ] Legal Honorariores and Types cf Legal Thought 803 

6. See P or. lock and Maitland I, 21?.: "A ircan is allowed to put forward 
soms one else to specie for him, not in order ths: he may be bound by that other 
pei'son's words, but in order that he may have h. chance of correcting formal blun- 
ders and supplying omissions" (Leg- Henr. 46, § 3). This was the so-called 
"droit d' amend ernent" explained by Brunner, loc. cit. 754-780, and also in his 
Zuldss. der Anw. 322. 

7. The appointment of an attorney rested at first upon special privilege, but 
this was no longer so in the time of Glanville, Zul. d. Anwl., Joe. cit. 363; 
Hqldsworth II, 3*-;, 316. 

8. By the Lateran Council, 121;, the clergy were, however, prohibited from 
acting as attorneys in secular courts, except in causes concerning themselves of 
concerning poor persons. 

9. The earliest time for which it is certain that in the royal courts of Eng- 
land litigants could appear by representation, is that of Henry II. Professional 
legal representation seems to begin with the thirteenth rather than with the 
twelfth century. For Brae ton tells much about the "attorney" who can fully act 
for and indeed also folly commit his client. The attorney's job was, however, 
mainly procedural; and as the legal system became more and more complex, liti- 
gants required not only to be represented procedurally but also felt the need for 
lawyers who would narrate as well as argue their case in court. The lawyers were 
the narrators (and were later called the Serjeants^} but there is still too little known 
about their early history. As Plucknett has remarked, "In the present state of our 
knowledge it therefore seems safe to say that there certainly were professional 
■narrator; and attorneys during the reign of Edward I, and that possibly these pro- 
fessions already existed under Henry III" (204, 206). 

In the following account of the methods of the Common Law as well as in 
his genets! ideas about it, Weber relied to an apparently large extent upon the 
writings of J. Hatschek, especially the third chapter of his Enclisches Staats- 
recht I, 95 et seq. Wehers general ideas of legal thought as expressed through- 
out this work seem to have been influenced strongly by Hatschelc, especially his 
article entitled Konventiottalregeln, oder iiber die Grenzcn der naturunssenschaft- 
lichen Begriffsbildung im Sffenilichen Recht (1909), 3 Jahrbuoh des 6ffent- 
lichen Rechts 1-67. 

10. For a short account of the course of this complicated development, cov- 
ering several centuries, see Plucknett 212—21 5, and literature there cited. The 
standard work is Herman Cohen, History of the English Bar (1929). 

: 1. The two universities, Oxford and Cambridge, taught only civil and canon 
law whereas the Inns of Court concentrated on "English" law as developed in 
the royal courts. Cf. Plucknett 208-209, 

■ 12. On the fictions which were used by the several courts of the king to ex- 
tend their jurisdiction, see Plucknett 152-155; Holdsworth I, 235. More 
generally, see Morris S. Cohen, Fictions, 6 Encyc. Soc. Sci, 225; Fuller, Legal 
Fictions (1930-31}, 2 5 III. L. Rev. 363, 513, 877; Maine, c. II. 

13. Cf. the recent analysis of the methods of Common Law reasoning by 
Edward H- Levi, Introduction to Legal Reasoning; see also Llewbllyn, 
PraJudizienrecht und Rbchtsprbchung in Ambrixa C*933)- 

14. Weber is obviously thinking of the continuance in modem American real 
property law of such concepts as tenure, estate, and fee, and of such relics as the 
doctrine of destructibtlity of contingent remainders, the doctrine of worthier title, 
or the Rule in Shelley's Case. The concept of tenure has practically disappeared, 
the meaning and functions of the others have been radically transformed; cf R. 
R. Powell, Law ov Real Property (1950) I, c. iv. On seisin, see Maitland, 



8 O 4 ECONOMY AND LAW (SOCIOLOGY op LA w) [ CJj, VIII 

The Mystery of Seisin 0886}, z L.Q. Rev. 481; Bordwell, Seisin and Disseisin 
(1920/21), 34 Harv, L. Rev. 592; Sweet, Seisin (1896), 12 L.Q. Rev. 239. 

An Illinois case on seisin reviving most of the old features of the English law 
is Fort Dearborn v. Kline (1885), 115 111. 177, 3 N.E. 272. 

R. Powell, op. cit. 236, n. 70, characterizes Illinois decisions as "anachro- 
nistic," "re-incamating" old English law (with the help of A. Kales's great 
knowledge). Powell continues (p. 137): "In general, it can be said that English 
law [concerning real property] is a more constandy significant factor in the think- 
ing of the. Illinois judiciary than in most of our other states. The ghosts of the 
past have freer exit from their closets, without much scrutiny to determine their 
real utility as a part of a modem scheme of life." 

15- For evidence of efforts by the English bar to prevent codification and law 
reform, see, among others, the biography of Lord Birkenhead in Dictionary of 
National Biography (1922— 1930) 782. For Bentham's despair at the hostility ' 
shown toward law reform and codification by the English bar, see J. Dillon, 
Laws and Jurisprudence of England and America (1894) 271, 316-347, 
180 et seq. See also Sunderland, The English Struggle for Procedural Reform 
(1926), 39 Harv. L. Rev. 725. The American lawyers' aversion against codifi- 
cation and law reform found dramatic expression in the fight of the New York 
bar led by J. C Carter, against David Dudley Field's efforts to codify the law. 
Cf. Dillon, of. cit. 225; see also Reports op American Bar Association 
(1890) 217 for Carter, and 1885, 3886 for D. D. Field; on D. D. Field, cf. 
Centenary Essays of the New York University School of Law, ed. by A. Reppy 
(1949), Llewellyn, 3 Encyc. Soc. Sci. 243, also Clark, Code Pleading (2nd 
ed. 1947) 17-21. 

16. For illustrations of, and literature on, "the deep rooted common law tradi- 
tion of judicial hostility to legislation" see J. Stone, 198. ' 

17. The source of this statement could not be located. The English term 
"joint business" is used in the German text. 

18. Cf . Brunner, Die Ztdassigkett der Anwaltschaft 324. 

19. Concerning Roman-law oriented legal education, see P. Koschaxer, Eu- 
ropa ukd das romische Recht (.1947) 45 et. seq., 55-99, and literature there 
cited. 

20. See Koschaker, loc. cit. 94 et seq. and literature there cited; for the 
social position of lawyers in Rome, France, England, Germany, and the difference 
between them, see pp. 164-180, 227-234. There never was a lawyers' guild 
organization in Germany, ibid. pp. 230, 247. 

21. Night schools or other law schools outside of universities and of the 
atmosphere of the universitas literamm are unknown in continental Europe and 
are thus not considered by Weber. 

22. Legal education, as it has become established in the nineteenth century 
in Germany and Austria (-Hungary) and as it still exists there, consists of two 
parts, viz., theoretical study of three to four years at a university, and a practical 
in-service training of usually another three years in various courts and administra- 
tive agencies, the office of the public prosecutor and an attorney's office. Cf. 
Rheinstein, Law Faculties and Law Schools, [1938] Wis. L. Rhv. 5; cf. also E. 
Schwbinburc, Law Training in Continental Europe (1945) 32, 80. 

23. See now Sees. 571,^81, 2 of the Civil Code; as to the rule of Roman 
law, under which a lease is a purely personal contract between lessor and lessee 
and where, consequently, the lessee has no right to remain on the land as against 
the purchaser from the lessor, see Sohm, Instttutionbn 434; but see also Buck- 
land 499, 



iv ] Legal Honoratiores and Types of Legal Thought 805 

24. On Hindu law see S. Vesey Fitzgerald, Hindu Law, 9 Encyc. Soc. Sci. 
261, and literature stated there: see furthermore infra, sec. v, n. 19, For an ac- 
count of early "legal" education in India, see Mains, Early Law 13. 

25. In his Essays on Sociology of Religion Weber has not included one 
on Islam; he has considered it, however, in his chapter on Sociology of Religion. 
As the principal sources on Isla'mic law he seems to have used Goldziher's Vor- 
lesungen uber den Islam (1910, 2nd ed. 1925), the pertinent chapter in 
Kohler and Wencer, 82 et sec}., and the further literature listed there on p, 
1 52, especially the several articles of Josef Kohler's in his Zeitsckrift fur Vbr- 
gleichende Rechtswissenschaft. For additional literature on Islamic law see 
the following works by J. Schacht: his articles in the Encyclopaedia of Islam 
(1927); his edition of G. Bergstraesser's Grundzugb deb Islamischbk 
Rechts (1935); Islamic Law, 8 Encyc. Soc. Sci. 344, with bibliography at p. 
349; and Origin of Mohammeban Law O951). Books and articles on Moham- 
medan law in the English language are listed in Stem's bibliography (1950) 43 
Law Library J. 16; cf. also G. v. Grunebaum, Medieval Islam (.1946). 

26. Hadxths — traditions concerning the exemplary deeds of the Prophet and 
his companions, and those sayings of the former which have not been incorpo- 
rated in the Koran. They make up the sunna, which is regarded as authoritative 
by the Sunnite branch of Mohammedanism, but rejected by the Shiites. When 
the haditks were assembled in collections, only those were accepted as authorita- 
tive which could be traced through the "golden chain" of men regarded as com- 
pletely reliable. On the role played in the formation and development of Islamic 
law by the "invention" of appropriate "traditions," see J. Schacht, Origins of 
Mohammedan Law (195O. 

27. Georg Freiherr v. Hertling, 1843-1919, Catholic philosopher and Ger- 
man statesman. See his Recht, Stoat und GeseUschaft, 1907. 

28. Dharma-Sutras "are the oldest manifestation of definite schools of law, 
or rather they embody (in the form of mnemonic aphorisms) the law teaching 
given in particular Vedic schools. With one exception, which professes to emanate 
from a god, each of them bears the name of some great sage of the [Vedic] 
period." — Vesey-Fitzcerald, op. tit. n. 24. They probably date from the period 
between 600 and 300 B.C. 

The statement that according to prevailing Hindu theory all law is contained 
in the DhannfrSutrat it tenable only when the term is used in so broad a sense 
as to include die artfcawrtms and those hm books of the institute-type which are 
known oArbr mt nw of Mtm* and YajmamaJkya. The latter occupy a prominent 
position m tftt wotis of those later commentators which have become important 
For the dwefaw aent of modem Hindu law. 

29. Didaskalia (Greek: Teaching, Doctrine) — the unfolding of the teaching 
of Jesus in the pneumatic-charismatic maaner of the earliest Christian communi- 
ties, i.e., before its fixation in authoritative "writings, such as the Didache of the 
Apostles and the channelization of Christian life in organized congregations. Cf. 
Sohm, Ktrchenrrcht 38, 41. 

30. Fetwa — opinion of the theologian-legal scholar, the mufti. 

3 1 . Short ah — the totality of Allah's rules for the conduct of man. 

32. On the Islamic schools, see swpra, sec. ii:$ and sec. tit, n. 12. 

33. In contrast to the wotory ptthlic of the American type, whose primary 
function is that of authenticating signatures and thus creating official evidence of 
genuineness, the continental notary is also a specialist in legal drafting, especially 
of real estate conveyances, but also of important commercial documents. He is 
thus not only a lawyer but a lawyer of special training and competence. See 



S<-6 ECONOMY AND LAW (SOCIOLOGY OF LAW) [Ch. VIII 

Meak, Notaries Public, 1 i Encyc. Soc, Sci. 59$, and literature cited there; also 

CaLASSO, StORIA B SISTKMA ESELLE FONTI DEL DIflJTTO COMUNB O938) I, 2 12, 

and (1934) * !1 Archivio churicico 64. Savigny ha,; fixed the collegium of the 
KCrtarics in Bologna 1 the roii'dle of the thirteenth century; cf. Geschichte des 
romiscksn FlEc:rrs im Mittelaltek 540; see also Goldschmidt 151-153. 

34. On the podesta, Italian city magistrates brought in from other towns to 
allay intramural strife, see infra, ch. XV£:iii:3; cf. also Engelmann 59; Calissb, 
op. tit. 143, 169, 180. On the signoria, the iate medieval Italian city tyranny 
and monarchy, see infra, ch. XVI : tv; 8—9. 

35- Cf. StOufT (1887) II NOUVELLE REVUE HISTORIQUB 269; GoLD- 

schmidt, 200 and literature there cited; also p. 230 (n. 159); p. 153 (n. 32). 
On the notaries in France compare the dissertation of A. Cqppin, Les qrigines 
ru notariat francais (1884, Academic dc Douai). 

36. See: for France, Koschaker, Eurcpa li, das rom. Recht 221 and litera- 
ture there cited; for Germany, Brunner I, log, II. 296 et scq ; see also the re- 
cent article of G. Schubart-Kikentscher, Hdmisches Recht im brunner Schotfen- 
buch ((947), 65 Sav. Z. Germ. 86; see in genera! Engelmann and Millar 98 
et seq., ti4etseq., 114 c* seq., 199, 519- 

37. Eike von Refgow (c. 1180—C. 1250) is the author of Sachsenspiecel 
(Mirror of Saxon Law, 1224-1230); cf. v. Kiinssberg, 13 Encyc, Soc. Sci. 
308; E. Wolf, Grosse Rechtsdenxer (1939) 1; Philippe de Beaumanoir 
(c. 1246— 1296) is the author of Coutumes de Beauvoisis (1183). the most 
influential of the medieval law treatises of France; cf. Meynial, 2 Encyc. Soc. 
Sci. 486. 

38. See the introduction to the Sachsenspiegel by Homeyer in his 3rd ed. 
(1861) 20, 105; E. Molitor, Der Gedankengang des Sachsenspiegeh (1947), 65 
Sav. Z. Germ, i 5, and the most recent literature there citud. 

39. On the Roman jurists see Jolowicz, 88, ;3o; H. J. Wolff, Roman 
Iaw (1951) 91; and particularly, F. Schulz, History, and W. KtfNitEL, Her- 
kunft und soziale Stellunc der romischen Juristen (1952). 

40. Kadi — judge of the Mohammedan shari'ah court (see supra, n. 31), kadi 
justice (Kadijmtiz) — used by Weber as a term of art to describe the administra- 
tion of justice which is oriented not at fixed rules of a formally rational law but 
at the ethical, religious, political, or otherwise expediential postulates of a sub- 
stantively rational law. 

41. See Millar, Procedure, Legal, 12 Encyc. Soc, Sci. 439, 440. 

42. On the edict, see Jolowicz 95, 362; H. J. Wolff, op. cit. 8 1 . 

43. The contrast corresponds to that between Common Law pleading and 
Code pleading, as it is known in American-'law. Cf. Clark, of. cit. 5; Millar, 
Procedure, Legal, 12 Encyc. Soc. Sci. 439, 446/447, 

44. The formula used is one in factum conceyta, when there is no reference 
to a civil law concept but the judge is simply told to condemn, if he finds certain 
facts described in the intentio to be true or, if not true, to absolve. Cf Jolowicz 
212—213; Wencer 162, 164. 

45. Gustav Demelius, Professor in Bonn. (Schiedseid und Beweiseiu im 
romischen Civilprozess [1887]); see review in 8 Sav. Z. Rom. 269, by O. 
Gradenwitz. On the problem of the extent to which sacred law was of influence 
in the development of (secular) Roman law, see iwfra, sec. v: 1-2. 

46. Simulata fro veris accipiuntur ("the simulated transaction is regarded as 
the real [true] one"; Servius at> Abneam II, 116). This meant that instead of 
animals only their forms, modeled in bread or wax, had to be sacrificed. For other 
examples see Jhertnc I, 326. 



iv ] Legal Honoratioies and Types of Legal Thought 807 

47. Jhbrtnc III, 27E. 

48. C. 300 a.c. cf. F. Schulz, History 9. 

49. Ti. Coruncanius was consul in 280 B.C. and is reported to have been the 
first to render responsa in public by Pomponius, in D. 1, 2, 2, 35 : Primus publics, 
proftteri coepit; cf. Schulz 10. 

50. See Buckland 22. On Gaius ibid. 29 and Schulz, History 159; Jors 
and Kunxel 33; De Zulueta, Reflexions on Gaius [1947], Tulank L. Rsv. 173. 

51. JfHEKiNC II, 440. 

52. Cicero, In Verrem 4.9.20. 

53. "No juristic text suggests that Augustus made responsa binding. It is 
clear that a change in the position of the jurists did occur under Hadrian." Buck- 
land, Textbook 23. For recent literature on this famous controversy concerning 
the nature and origin of the ius respondendi see Koschaker, Europa v. das 
ROM. Recht 962; Siber, Der Ausgangspunkt des ius respondendi (1941), 61 
Sav. Z. Rom. 397; Kunkel, Das Wesen des ius respondendi (1948), 66 Sav. Z. 
Rom. 423. 

54. On the distinction between the jurisconsults and the attorney, see Jkering 
II, 436; Buckland 22. 

55. On the two "schools" of Proculians and Sabinians, their significance, and 
alleged controversies, see Buckland 27; Schulz, History 119; Jors and 
Kunkel 32, 394. 

56. On this literature, see now esp. Schulz, History 91, 173, 223, 

57. See Kohler and Wencer 172; Jolowicz 469; Schulz, History 119. 

58. The one concept of locatio-conductio ("lease"), as derived from the 
actiones hcati and conducti, covered (i) the hcatio-conductio ret, i.e., the lease 
of 3 piece of land or a chattel; (2) the hcatio-conductio operarunt, i.e., the con- 
tract for services, in which the worker was said to let his working power ; and 
(3) the hcatio-condvctio operis, in which the opportunity to construct a building 
or to complete some other work, e.g., to make a suit of cloth, is let to an inde- 
pendent contractor, 

59. Weber here follows Jhering II. See also now Schulz, Principles 43; 
Wieacker, Vom romischen Recht 7; Ehrltch 195, 312. 

60. UNrvERSALGESCHiCHTE 78, 93; in general, 71-89, 331. 

61. Locatio-conductio — lease; see supta n. 58; em[p]tio-venditio — sale; man- 
datum— mandate, i.e., contract for unpaid services; if the services are to be paid 
for, the contract is one of locatio-conductio operarum. 

Actio quod iussu [depositum] — originally, action against one who has given to 
his son or slave authority to make a contract with another; stipuhtw — promise 
asked for and given in certain formalized words. 

Constitutum — the term is used here in an untechnical sense apparently mean- 
ing the legal basis (cawsa) of an actionable promise; technically constitututn dehiti 
means the formless promise to pay an already existing debt of the promisor or a 
third parry; it became actionable in praetorian law by the actio de pecunia con- 
stitute, an actio in factum. See Jors and Kunkel 189. 

62. Cf. Goldschmidt 78, 93. It must be remembered, however, that the 
actio quod iussu was not generally available, but only where the person by whom 
the contract had been made was a filius familias, a slave, or otherwise a dependent 
of the defendant. Cf. Buckland 531, according to whom the actio quod iussu 
was only of small importance. Weber's statement is based upon Goldschmidt 
78, n. 93, who speaks of the "astonishingly broad category of the mandatum or 
wsstts" (as exemplified by D. 17. 1.2), of which he says that it sufficed for those 
modem transactions of which Weber speaks in the text. For the present state of 



8 O 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cfl. Vlll 

learning concerning mandatum and iwsstts, see Jobs and Kunkel 213, 267, 41 1, 
415. 

63. Cf. Plucknett do 1, and the literature there cited. 

64. The comprehensive Roman concept of ownership, dominium, stands in 
contrast with the Germanic laws, in which there has been lacking not only a com- 
mon legal term covering full ownership in both land and chattels, but also a term 
indicating the fullness of rights to possession, utilization, and disposition of land. 
The various ways in which a person may derive benefits from land have been 
traditionally expressed in the complex set of tenures, estates, and future interests 
which has been characteristic of the Common Law. Only in recent times have the 
terms "fee" and, more recently, "title" assumed a meaning which comes near to 
that of the Roman dominium, which indicates the sum total of all rights and 
benefits which may be derived from a piece of land (as well as from a chattel). 
All rights of an objectively or temporally limited character are either, as the lease, ' 
regarded as mere personal claims against the owner or as rights in the thine of 
another (Jure in re alie.no), i.e., encumbrances, such as an estate for life (usufruc- 
fws), a right of way or other easement (servifrws), or a mortgage (hypotheca). As 
long as a particular thing is encumbered with such a right of another, the owner's 
dominium is accordingly limited, immediately to expand, however, to its fullness 
of unlimited freedom ofpossession, enjoyment, use, and disposal, as soon as the 
encumbrance is lifted. This concept of dominium must not be understood, how- 
ever, in the sense that a Roman property owner would have been completely un- 
limited in his freedom to use or abuse his thing. At all rimes was he limited, espe- 
cially as landowner, by police power regulations established in the public interest. 
The concept of dominium is only a mental tool to facilitate mental operations 
concerning property rights. Indirectly, it also tends, of course, to facilitate land 
transactions and thus to increase the security of land titles. 

As Weber observes, the highly abstract concept of dominium has been the 
product of a long process of juridical elaboration. Similar to the Germanic and 
other laws, older Roman law, too, operated with a variety of concepts indicating 
the various kinds of a person's legally recognized relationship to a thing, especially 
a piece of land. In the iws civile, res mancijii (citizen's land in the proper sense, 
slaves, catde, and certain agricultural implements) were treated differently from 
the res nee ■mancipi. Ownership ex iure Quiritium was not the same as the in 
bonis habere of the praetorian law or the various tenures in the administratively 
managed public lands (see sec. t»:;).The elaboration of the comprehensive 
concept of dominium was the work of the jurists. According to the presently pre- 
vailing opinion, this mental process was essentially completed by the classical 
jurists. On the development see Jons and Kunkei, 120, and the extensive litera- 
ture stated there arid at p. 405; also Buck land 188, and Nomas 131. 

65. Law of Citations — There were several; the earliest was issued by Con- 
itanrine in aj>. 321; the best known is that of 426, issued by Valentinian III and 
Theodoshis II (Codex Theodosiakos 1.4.3.). The courts were ordered to con- 
sider the works of a certain number of jurists; where the jurists differed, the 
judge was to follow the opinion of the majority or, in the case of a tie, that of 
Papintan. 



v ] Formal and Substantive Rationalization of Law 809 

V 

Formal and Substantive Rationalization 

— Theocratic and Secular Law 

1 . The General Conditions of Legal Formalism 

The considerations of the last section raise the important problem, 
already touched upon in various places, of the influence of the form 
of political authority on the formal aspects of the law. A definitive anal- 
ysis of this problem requires an analysis of the various types of authority 
which we shall not undertake until later. However, a few general re- 
marks may be made at this point. The older forms of popular justice 
had originated in conciliatory proceedings between kinship-groups. The 
primitive formalistic irrationality of these older forms of justice was 
everywhere cast off under the impact of the authority of princes or 
magistrates (imferium, ban) or, in certain situations, of an organi2ed 
priesthood. With this impact, the substance of the law, too, was lastingly 
influenced, although the character of this influence varied with the 
various types of authority. The more rational the administrative ms- 
chinerv of die princes or hier-irchs became, that is, the greater the extent 
to which administrative "officials" were used in the exercise of the 
power, the greater was the likelihood that the legal procedure would 
also become "rational" both in form and substance. To the extent to 
which the rationality of the organization of authority increased, irra- 
tional forms of procedure were eliminated and the substantive law was 
systematized, i.e., the law as a whole was rationalized. This process 
■occurred, for instance, in Antiquity in the ius honorarium and the prae- 
torian remedies, 1 in the capitularies of the Frankish Kings, in the pro- 
cedural innovations of the English Kings and Lords Chancellc , 2 or in 
the inquisitorial procedure of the Catholic Church.* However, these 
rationalizing tendencies were not part of an articulate and unambiguous 
policy on the part of the wielders of power, they were rather c riven in 
this direction by the needs of their own rational administration, as, for 
instance, in the case of the administrative machinery of the p .pacy, or 
by powerful interest-groups with whom they were allied and .o whom 
rationality in substantive law and procedure constituted an aivantage, 
as, for instance, to the bourgeois classes of Rome, of the late Middle 
Ages, or of modem times. Where these interests were absent the secu- 



8 I O ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. Vlll 

larization of the law and the growth of a strictly formal mode of juridical 
thought either remained in an incipient stage or was even positively 
counteracted. In general terms, this may he attributed to the fact that 
the rationality of ecclesiastical hierarchies as well as of patrimonial sov- 
ereigns is substantive in character, so that their aim is not that of 
achieving that highest degree of formal juridical precision which would 
maximize the chances for the correct prediction of legal consequences 
and for the rational systematization of law and procedure. The aim is 
rather to find a type of law which is most appropriate to the expediential 
and ethical goals of the authorities in question. To these carriers of legal 
development the self-contained and specialized "juridical" treatment of, 
legal questions is an alien idea, and they are not at all interested in any 
separation of law from ethics. This is particularly true, generally speak- 
ing, of theocratically influenced legal systems, which are characterized 
by a combination of legal rules and ethical demands. Yet in the course 
of this kind of rationalization of legal thinking on the one hand and 
of the forms of social relationships on the other, the most diverse con- 
sequences could emerge from the non juridical components of a legal doc- 
trine of priestly make. One of these possible consequences was the 
separation of fas, the religious command, from ins, the established law 
for the setdement of such human conflicts which had no religious rel- 
evance. 1 In this situation, it was possible for i«s to pass through an inde- 
pendent course of development into a rational and formal legal system, 
in which emphasis might be either upon logical or upon empirical ele- 
ments. This actually happened both in Rome and in the Middle Ages. 
We shall discuss later [v.z, v:8] the ways in which the relationship 
between the religiously fixed and the freely established components of 
the law were determined in these cases. As we shall see hereafter, [sec. 
vii] it was quite possible, as thinking became increasing secular, for 
the sacred law to encounter as a rival, or to be replaced by, a "natural 
law" which would operate beside the positive law partly as an ideal 
postulate and partly as a doctrine with varying actual influence upon 
legislation or legal practice. It was also possible, however, that the reli- 
gious prescriptions were never differentiated from secular rules and that 
the characteristically theocratic combination of religious and ritualistic 
prescriptions with legal rules remained unchanged. In this case, there 
arose a featureless conglomeration of ethical and legal duties, moral 
exhortations and legal commandments without formalized explicitness, 
and the result was a specifically non-formd type of law. Just which of 
these two possibilities actually occurred depended upon the already men- 
tioned characteristics of the religion in question and the principles that 
governed its relation to die legal system and the state; in part it de- 



v ] Formal and Substantive Rationalization of Law 8 i i 

pended upon the power position of the priesthood vis-a-vis the state; and 

finally, upon the structure of the state. It was because of their special 

structure of authority that in almost all the Asiatic civilizations the last 

' mentioned of these courses of development came to emerge and persist. 

But although certain features in the logical structure of different 
legal systems may be similar, they may nevertheless be the result of 
diverse types of domination. Authoritarian powers resting on personal 
loyalty, such as theocracy and patrimonial monarchy, have usually 
created a nonformal type of law. But a nonformal type of law may also 
be produced by certain types of democracy. The explanation lies in the 
fact that not only such power-wielders as hierarchs and despots, and 
particularly enlightened despots, but also democratic demagogues may re- 
fuse to be bound by formal rules, even by those they have made them- 
selves, excepting, however, those norms which they regard as religiously 
sacred and hence as absolutely binding. They all are confronted by the 
inevitable conflict between an abstract formalism of legal certainty and 
their desire to realize substantive goals. Juridical formalism enables the 
legal system to operate like a technically rational machine. Thus it 
guarantees to individuals and groups within the system a relative maxi- 
mum of freedom, and greatly increases for them the possibility of pre- 
dicting the legal consequences of their actions. Procedure becomes a 
specific type of pacified contest, bound to fixed and inviolable "rules of 
the game." 

Primitive procedures for adjusting conflicts of interest between kin- 
ship groups are characterized by rigorously formalistic rules of evidence. 
The same is true of judicial procedure in Dinggenossenschaften. As we 
have seen, these rules were at first influenced by magical beliefs which 
required that the questions of evidence should be asked in the proper 
way and by the proper party. Even afterwards it took a long time for 
the law to develop the idea that a fact, as understood today, could be 
"established" by a rational procedure, particularly by the examination of 
witnesses, which is the most important method now, not to Speak at all- 
of circumstantial evidence. The compurgators of earlier epochs did not 
swear that a statement of fact was true but confirmed the Tightness of 
their side by exposing themselves to the divine wrath. We may observe 
that this practice was not much less realistic than that of our days when 
a great many people, perhaps a majority, believe their party task as . 
witnesses to be simply that of "swearing" as to which party is "in the 
right." In ancient law, proof was therefore not regarded as a "burden" 
but at least in large part as a "right" of the party to which it was 
attributed. The judge, however, was strictly bound by these rules and 
the traditional methods of proof. The modern theory of as late a period 



8 I 2 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIU 

as that of "common law" procedure* is different from ancient procedure 
only in that it would treat proof as burden. It, too, binds the judge to 
the morions of, and the evidence offered by, the parties and, indeed, the 
same principle applies to the entire conduct of the suit: in accordance 
with the principle of adversary procedure the judge has to wait for the 
motions of the parties. Whatever is not introduced or put into a motion 
does not exist as far as the judge is concerned; the same is true o£ facts 
which remain undisclosed by the recognized methods of proof, be they 
rational or irrational. Thus, the judge aims at establishing only that 
relative truth which is attainable within the limits set by the procedural 
acts of the parties. 

This exactly was the character of adjudication in its oldest known, 
most clear-cut form: arbitration and composition between contending 
kinship groups, with oracle or ordeal constituting the trial procedure. 
This ancient legal procedure was rigorously formal like all activities 
oriented towards the invocation of magical or divine powers; but, by 
means of the irrational supernatural character of the decisive acts of 
procedure,, it tried to obtain the substantively "right" decision. When, 
however, the authority of, and the belief in, these irrational powers 
came to be lost and when they were replaced by rational proof and the 
logical derivation of decisions, the formalistic adjudication had to become 
a mere contest between litigants, regulated so as to aim at the relatively 
optimal chance of finding the truth. The promotion of the progress of 
the suit is the concern of the parties rather than that of the state. They 
are not compelled by the judge to do anything they do not wish to do at 
their own initiative. It is for this very reason that the. judge cannot 
comply with the quest for the optimal realization of substantive demands 
of a political, ethical or affective character by means of an adjudication 
which could give effect to considerations of concrete expediency or 
equity in individual cases. Formal justice guarantees the maximum 
freedom for the interested parties to represent their formal legal interests. 
But hecause or the unequal distribution of economic power, which the 
system of formal justice legalizes, this very freedom must time and again 
produce consequences which are contrary to the substantive postulates of 
religious ethics or of political expediency. Formal justice is thus repug- 
nant to all authoritarian powers, theocratic as well as patriarchic, because 
it diminishes the dependency of the individual upon the grace and 
power of the authorities. 8 To democracy, however, it has been repugnant 
because it decreases the dependency of the legal practice and therewith 
of the individuals upon the decisions of their fellow citizens. 7 Further- 
more, the development of the trial into a peaceful contest of conflicting 
interests can contribute to the further concentration of economic and 



v ] Formal and Substantive Rationalization of Law 8 i 3 

social power. In all these cases formal justice, due to its necessarily 
abstract character, infringes upon the ideals of substantive justice. It is 
precisely this abstract character which constitutes the decisive merit of 
formal justice to those who wield the economic power at any given time 
and who are therefore interested in its unhampered operation, but 
also to those who on ideological grounds attempt to break down au- 
thoritarian control or to restrain irrational mass emotions for the purpose 
of opening up individual opportunities and liberating capacities. To all 
these group nonformal justice simply represents the likelihood of ab- 
solute arbitrariness and subjectivistic instability. Among those groups 
who favor formal justice we must include all those political and eco- 
nomic interest groups to whom the stability and predictability of legal 
procedure are of very great importance, i.e., particularly rational, eco- 
nomic, and political organizations intended'to have a permanent charac- 
ter. Above all, those in possession of economic power look upon a formal 
rational administration of justice as a guarantee of "freedom," a value 
which is repudiated not only by theocratic or patriarchal-authoritarian 
groups but, under certain conditions, also by democratic groups. Formal 
justice and the "freedom" which it guarantees are indeed rejected by all 
groups ideologically interested in substantive justice. Such groups are 
better served by khadi-justice than by the formal type. The popular 
justice of the direct Attic democracy, for example, was decidedly a 
form of khadi-justice. Modern trial by jury, too, is frequently khadi- 
justice in actual practice although not according to formal law; even 
in this highly formalized type of a limited popular adjudication one 
can observe a tendency to be bound by formal legal rules only to the 
extent directly required by procedural technique. Quite generally, in 
all forms of popular justice decisions are reached on the basis of con- 
crete, ethical, or political considerations or of feelings oriented toward 
social justice. Political justice prevailed particularly in Athens, but it 
can be found even today. In this respect, there are similar tendencies 
displayed by popular democracy on the one hand and the authoritarian 
power of theocracy or of patriarchal monarchs on the other. When, for 
example, French jurors, contrary to formal law, regularly acquit a 
husband 'who has killed his wife's paramour caught in the act, they 
are doing exacdy what Frederick the Great did when he dispensed 
"royal justice" for the benefit of Arnold, the miller. 8 Even more so does 
the distinctive characteristic of a theocratic administration of justice 
consist entirely in the primacy of concrete ethical considerations; its 
indifference or aversion to formalism is limited only in so far as the 
rules of the sacred law are explicidy formulated. But in so far as norms 
of the latter 3pply, the theocratic type of law results in the exact 



8 I 4 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

Opposite, viz., a law which, in order to he adaptable to changing circum- 
stances, develops an extremely formalistic casuistry. Secular, patrimonial- 
authoritarian administration of justice is much freer than theocratic 
justice, even where it has to conform with tradition, which usually 
allows quite a degree of flexibility. 

Finally, the administration of justice by honoratiores presents two 
aspects depending on what legal interests there are involved, those of 
the honoratiores' own class or those of the class dominated by them. 
In England, for instance, all cases coming before the central courts were 
adjudicated in a strictly formalistic way. But the courts of justices of 
the peace, which dealt with the daily troubles and misdemeanors of the 
masses, were informal and representative of khadi-justice to an extent 
completely unknown on the Continent. Furthermore, the high cost of 
litigation and legal services amounted for those who could not afford 
to purchase them to a denial of justice, which was rather similar to that 
which existed, for other reasons, in the judicial system of the Roman 
republic. 9 This denial of justice was in close conformity with the in- 
terests of the propertied, especially the capitalistic, classes. But such a 
dual judicial policy of formal adjudication of disputes within the upper 
class, combined with arbitrariness or de facto denegation of justice for 
the economically weak, is not always possible. If it cannot be had, capi- 
talistic interests will fare best under a rigorously formal system of ad- 
judication, which applies in all cases and operates under the adversary 
system of procedure. In any case adjudication by honoratiores inclines 
to be essentially empirical, and its procedure is complicated and expen- 
sive. It may thus well stand in the way of the interests of the bourgeois > 
classes and it may indeed be said that England achieved capitalistic 
supremacy among the nations not because but rather in spite of its 
judicial system. For these very reasons the bourgeois strata have gen- 
erally tended to be intensely interested in a rational procedural system 
and therefore in a systematized, unambiguous, and specialized formal 
law which eliminates both obsolete traditions and arbitrariness and in 
which rights can have their source exclusively in general objective 
norms. Such a systematically codified law was thus demanded by the 
English Puritans, 10 the Roman Plebeians, 11 and the German bourgeoisie 
of the nineteenth century. But in all these cases such a system was still a 
long way off. 

In the administration of justice of theocratic type, in adjudication 
by secular honoratiores (as judges or private or officially patented juris- 
consults), as well as in that development of law and procedure which is 
based upon the imperium and the contempt powers of magistrates, 
princes, or officials holding in their hands the direction of the lawsuit, 12 



v ) Formal and Substantive Rationalization of Law 8 i 5 

the view is at first strictly adhered to that fundamentally the law has 
always been what it is and that no more is needed than an interpretation 
of its ambiguities and its application to particular cases. Nonetheless, as 
we have seen [in sec. Hi], the emergence of rationally compacted norms 
is in itself possible even under rather primitive economic conditions, 
once the hold of magical stereotypization has been broken. The exist- 
ence of irrational techniques of revelation as the sole means of in- 
novation has often implied a high degree of flexibility in the norms; 
their absence, on the other hand, has resulted in a higher degree of 
stereotypization, because in that event the sacred tradition as such 
remained the sole holy element and would thus be sublimated by the 
priests into a system of sacred law. 



2. The Substantive Rationalization of Sacred Law 

Sacred law and sacred lawmaking have emerged in rather different 
ways in different geographical areas and in different branches of the 
law; their persistence has likewise varied. We shall completely disre- 
gard at this point of our analysis the special attention which sacred law 
pays to all problems of punishment and atonement, a concern orig- 
inally caused by purely magical norms; nor shall we here consider its 
interest in political law, or the originally magicaliv conditioned norms 
which regulated the times and places at which trials were allowed to 
take place, or the modes of proof. In the main, we shall deal only with 
"private law" as commonly understood. In this branch of law, the 
fundamental principles regarding the permissibility and the incidents of 
marriage, the law of the family, and, closely related to it, that of in- 
heritance, have constituted a major branch of sacred law in China and 
India as well as in the Roman fas, the Islamic shariah, and the medieval 
canon law. The ancient magical prohibitions of incest were early forms 
of religious regulation of marriage. 13 In addition there was the impor- 
tance of appropriate sacrifices to the ancestors and other familial sacra, 
which caused the intrusion of sacred law into the law of the family and 
inheritance. In the areas of Christianity, wh^re the latter interests lost 
part of their significance, the fiscal interests of the Church in the validity 
of wills operated to maintain its control in the field of the law of inher- 
itance. 1 * 

Secular trade law was liable to come into conflict with the re- 
ligious norms relating to objects and places dedicated to religious pur- 
poses or consecrated for other rea ^ns or magically tabooed. In the 
spheie of contract, sacred law intervened on purely formal grounds 



8 I 6 ECONOMIC AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

whenever a religious form of promise, especially an oath, had been 
used, a situation which occurred frequently and in the beginning, we 
may surmise, regularly. 15 On substantive grounds, sacred law became 
involved whenever important norms of a religious-ethical character, for 
instance, the prohibition of usury, entered the picture. 

The relations between temporal and sacred law in general can vary 
considerably, depending upon the particular principles underlying the 
religious ethics in question. As long as religious ethics remains at the 
stage of magical or ritualistic formalism, it can, under certain circum- 
stances, become paralyzed and completely ineffective through its own 
inherent means of refined rationalization of magical casuistry. In the 
course of the history of the Roman republic the fas met with just this 
fate. There was scarcely a single sacred norm for the circumvention of 
which one could not have invented some appropriate sacred device or 
form of evasion. 16 The College of Augurs' power of intervention in cases 
of defective religious form and evil omtna, which meant, practically 
speaking, a power to rescind die resolutions of the popular assemblies, 
was never formally abolished in Rome as it had been by Pericles and 
Ephialtes in the case of the equally sacredly conditioned power of the 
Athenian Areiopagus. 17 But under the absolute domination of the priest- 
hood by the secular magisterial nobility, this power served political 
purposes exclusively, and its application, like that of the substantive 
fas, was rendered practically innocuous by peculiar sacred techniques. 
Thus, like the Hellenic law of the late period, the thoroughly secular- 
ized ius was guaranteed against intrusions from this direction, despite 
the extraordinarily large role played in Roman life by considerations of 
ritual obligation. The subordination of the priesthood to the profane 
power in the ancient polis and certain peculiar characteristics of the 
Roman Olympus and of its treatment of which we have spoken, were the 
factors by which this line of development was determined in Rome. 18 



3. Indian Law 

The situation was the reverse where a dominant priesthood was able 
to regulate the whole range of life ritualistically and thus to a con- 
siderable extent to control the entire legal system, as was the case in 
India. 19 According to prevailing Hindu theory, all law is contained in 
the Dharma-Sutras. Th^ purely secular development of law was con- 
fined to the establishment of particular systems of law for the various 
vocational groups of the me*chsnts, artisans, and so forth. No one 
doubted the right of the vocational groups and castes to establish their 



v ] Formal and Substantive Rationalization of Law 8 i 7 

own laws, so that the prevailing state of affairs could be summarized in 
the maxim: "Special law prevails over general law." 20 Almost all of 
the actually obtaining secular law came from these sources. This type 
of law, which covered almost the entire field of matters of daily life, 
was, however, disregarded in priesdy doctrine and in the philosophical 
schools. Since no one thus specialized in its study and administration, 
it escaped not only all rationalization, but also lacked a reliable guar- 
anty of validity in cases of divergence from the sacred law, which latter 
was in theory absolutely binding, even though it was widely disre- 
garded in practice. 

Lawfinding in India represented that same characteristic inter- 
mixture of magical and rational elements which corresponds to both 
the peculiar kind of the religion and the theocratic-patriarchal regula- 
tion of life. The formalism of procedure was on the whole rather slight. 
The courts were not of the type of popular justice. The rules that the 
king is bound by the decision of the chief justice and that lay members 
(viz., merchants and scribes in the older sources and guild masters and 
1 scribes in the later ones) must be among the members of the court are 
both expressive of rational tendencies. The great significance of private 
arbitration corresponded to the autonomous law creation by the consoci- 
ations. However, appeals from the organized tribunals of the consocia- 
tions to the public courts were permitted as a general rule. The law of 
evidence is today primarily rational in character; resort is primarily 
had to instruments in writing and to the testimony of witnesses. Ordeals 
were reserved for cases in which the results of the rational means of 
evidence were not sumciendy clear. In those situations, however, they 
preserved their unbroken magical significance. This was especially true 
of the oath, which was to be followed by a period of waiting to deter- 
mine the consequences of the self<urse. Similarly the magical means of 
execution, especially the creditor's starving himself to death before the 
door of the debtor, 21 existed along with the official enforcement of judg- 
ments and legalized self-help. A practically complete parallelism of 
sacred and secular law existed in criminal procedure. But there was 
also a tendency towards the fusion of both these types of law, and on 
the whole sacred and secular law constituted an undifferentiated body, 
which obscured the remnants of the ancient Aryan law. This body of 
law was, in turn, largely superseded by the autonomous administration 
of justice of the consociations, especially the castes, which possessed the 
most effective of all means of compulsion, viz., expulsion. 

Within the territory where Buddhism prevailed as the religion of the 
state, i.e., in Ceylon, Siam, Malaya, Indo-China, and especially Cam- 
bodia and Burma, the legislative influence of the JJuddhist ethics was 



8 I 8 ECONOMY AND LAW (SOCIOLOGY OP LAW) [ Ch. V1I1 

far from slight. 23 The Buddhist ethics was responsible for the equal 
status of husband and wife as expressed, for instance, in the rule of 
cognatic inheritance or the system of community property, or in the 
duty of filial piety, established in the interest of the parents' fate in the 
beyond, and requiring, among other things, the heir's liability for the 
debts of the deceased. The whole law came to be permeated with ethical 
elements which found expression in the protection of slaves, the leniency 
of the penal law (except the often extremely cruel punishment for po- 
litical crimes), and in the admissibility of giving bond for keeping the 
peace. Yet even the relatively worldly ethics of Buddhism was so pre- 
occupied with conscience on the one hand and ritual formalism on the 
other that a system of sacred 'law" could scarcely develop as the sub- 
ject matter of a specialized learning. Nonetheless, a legal literature, 
Hindu in tone, did develop and made possible the proclamation in 
Burma in 1875 of the "Buddhist law" as the official law, meaning by 
Buddhist law a law of Hindu origin, modified in the direction of Bud- 
dhism. 



4. Chinese Law 

In China™ on the other hand, the magical and animistic duties were 
restricted by the power-monopoly of the bureaucracy to the purely 
ritual sphere. Thus, as we have seen and shall see further, it exercised 
profound influences on economic activity. The irrationalities of Chinese 
administration of justice were caused by patrimonial rather than theo- 
cratic factors. Legal prophecy, like prophecy in general, has been un- 
known in China, at least in historical times; there also was no stratum 
of responding jurisconsults and no specialized legal^ training. All this 
corresponded to the patriarchal character of the political association, 
which was opposed to any development of formal law. The "Wu" and 
the "Wei" (Taoist magicians) were the counselors in matters of magical 
ritual. Those of their members who had passed the examinations and 
had, accordingly, a literary education, were advisors to families, kinship 
groups, and villages in ceremonial and legal matters. 



5. Islamic Law 

In Islam there was, at least in theory, not a single sphere of life 
in which secular law could have developed independently of the claims 
of sacred norms. In fact, there occurred a rather far-reaching reception 



v j i/tJ/f.-H.i and Substantive haCm^iizaUor. of Law 8 1 9 

of Hellenic and Roman law/ 1 Officially, however, the entire corpus of 
private law W"js claimed to be ai- i:ut' re rotation of the Koran, or its 
ekboiaiion through customary law. Thu; took place when, after the 
vail of the Onutyyud Caliphate and tbt c:>::;hlisnnseiit of rrj's of the 
Abbassids, the caessro- papist principles of thu Zoroustrian Sssssnids 
were transplanted into Islam in the name of a return to the sacred tradi- 
tion. * s The status of sacred law in Islam is an ideal example of the 
way in which sacred law operates in a genuinely prophetically created 
scriptural religion. The Koran itself contains quite a few rules of posi- 
tive law (such as, for instance, the abolition of the prohibition of mar- 
riage between a man and his adoptive daughter-in-law, the very liberty 
of which Mohammed availed himself). But the bulk of the legal pres- 
criptions are of a different origin. Formally, they usually appear as 
hadith, i.e., exemplary deeds and sayings of the prophet, the authenticity 
of which was attested to by a successive line of recognized transmitters 
extending back by oral transmission to the contemporaries of the 
prophet, which originally meant back to the specially qualified com- 
panions of Mohammed. Due to this unbroken chain of personal trans- 
mitters the prescriptions are, or are said to be. exclusively orally 
transmitted, and constitute the Burma, which is not an interpretation 
of the Koran itself, but a tradition alongside the Koran. Its oldest com- 
ponent parts derive mainly from the pre-Islamic period, particularly 
from the customary law of Medina, the compilation and editing of 
which as Sunna has been attributed to Malik-ibn-Anas. But neither the 
Koran nor the Sunna were by themselves the sources of the law used 
by the judges. These sources were rather the fikh, i.e., the product of 
the speculative labors of the law schools, which are collections of kadiths 
arranged either according to authors (tkhsjkkO or to subject matter 
(mwsaKWaf, of which six constitute the traditional canon). The fkk 
comprises ethical as well as legal commands and has contained, ever 
since the law became crystallized, an increasingly large section of a 
. completely obsolete character. The crystallization was officially achieved 
through the belief that the charismatic, juridical-prophetic power of 
legal interpretation (ijtihad') had been extinguished since the seventh 
or eighth century, that is, the thirteenth or fourteenth century of the 
■Christian era, a belief similar to that of the Christian Church and to 
that of Judaism regarding their assumption that the prophetic age had 
come to an end. The prophets of the law, the mujtahidun of the charis- 
matic epoch, were still thought of as the agents of juridical revelation, 
although only the founders of the four law schools (madhab^), acknowl- 
edged as orthodox, were given complete recognition. After the extinction 
of the ijihad only commentators (muqallidin} remained and the law 



8 2 O ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cfc. VIII 

became absolutely fixed. The struggle among the four orthodox law 
schools was primarily a conflict about the components of the orthodox 
Sunna, but it was also a conflict over methods of interpretation, and 
even these differences were increasingly stereotyped once the law was 
fixed. Only the small Hanbalite School rejects all hicia, i.e., all new law, 
all new; hadith, and all rational schemes of interpretation. Thus, as well 
as because of its postulate of cage intrare,™ it has cut itself off from the 
other schqpls which, in principle, are tolerant of each other. The schools 
differ by the different roles ascribed to legal science in the creation of 
new law. The Malekite Schor I ^ ?* dominant for a long time in Africa 
and Arabia. Since it originated in the oldest political center of Islam, 
Medina, it was especially uninhibited, perhaps as might have been ex- 
pected, in incorporating pre-Is3amic law. But it was bound to a greater 
extent by tradition than the Hanefite School, which emerged from Iraq 
and was, accordingly, deeply affected by iiyzantine influences. :7 Its 
role was particularly important in the Court of the Caliph; and it is 
still the official school in Turkey" and the dominant one in Egypt. 
The main contribution of thr; Hanefite jurisprudence, which was in 
close contact with the ideas of the palace, seems to have been the 
development of the empirical techniques of Islamic jurists, i.e., the use 
of analogy (qiyai). It also proclaimed the ray, i.e., the idea that learned 
doctrine was an independent source of law, together with the received 
interpretation of the Koran. The Shafiite school, which originated in 
Baghdad and spread into Southern Arabia, Egypt, and Indonesia, is 
regarded as opposed not only to both these Hanefite characteristics, 
that is, the role ascribed to learned opinion and borrowings from foreign 

law, but also to the Malekites' elastic attitude toward tradition. It is thus 
regarded as more traditionalistic, although it has nevertheless achieved 
similar results through its large-scale reception of hadiths of question- 

" able genuineness. The conflict between the Ashab-al-hadith i.e., the 
conservative traditionalists, and the Ashah-al-fkh, i.e., the rationalistic 
jurists, has persisted through the entire history of Islamic law. 

The sacred. law of Islam is throughout specifically a "jurists' law." 
Its validity rests on idshmd (tdshmd-al-ammah — tacitus consensus 
omnium^) which is defined in practice as the agreement of the prophets 
of the law, i.e., the great jurists (fuqahet). Besides the infallible prophet, 
only the tdshma are officially infallible. Koran and Sunna are merely 
the historical sources of the idshmd. The judges do not consult the 
Koran or the Sunna, but the compilations of the idshmd, and they are 
not allowed independently to interpret the sacred writings or traditions. 
The Islamic jurists were in a position similar to that^ of the Roman 

, jurists, and especially the organization of their schools is reminiscent 
of that in Rome. The jurist's activities involved both legal consultation 



v ] Formal and Substantive Rationalization of Law , 821 

and the teaching of students. He was therefore in contact with the prac- 
tical requirements of his clients as well as the practical pedagogical 
demands, which necessitated systematic classification. But the subordi- 
nation both to the fixed interpretative methods laid down by the heads 
of the schools and to the authoritative commentaries excluded, ever 
since the close of the ijtikad period, all freedom of interpretation. In 
the official universities, like Al-Azkar of Cairo, which includes among 
its faculty representatives of all four orthodox schools, teaching became 
the routinized recitation of fixed sentiments. 2 * Certain essential charac- 
teristics of Islamic organization, viz., the absence of [Church] Councils 
as well as of doctrinal infallibility [like that ascribed to the papal 
office], influenced the development of the sacred law in the direction 
of a stereotyped "jurists' law." Actually, however, the direct applicability 
of sacred law was limited to certain fundamental institutions within a 
range of substantive legal domain only slightly more inclusive than that of 
medieval canon law. However, the universalism which was claimed by 
the sacred tradition resulted in the fact that inevitable innovations had to 
be supported either by a fetwa, 3 " which could almost always be obtained 
in a particular case, sometimes in good faith and sometimes through 
trickery, or by the disputations casuistry of the several competing ortho- 
dox schools. As a consequence of these factors, together with the already 
mentioned inadequacy of the formal rationality of jmidical thought, 
systematic lawmaking, aiming at legal uniformity or consistency, was 
impossible. The sacred law could not be disregarded; nor could it, 
despite many adaptations, be really carried out in practice. As in the 
Roman system, officially licensed jurists (muftis, with the Sheikh-vH- 
Islam at their head) can be called on for opinions by the khadis or 
the parties as the occasion arises. Their opinions are authoritative, but 
they also vary from person to person; like the opinions of oracles, they 
are given without any statement of rational reasons. Thus they actually 
increase the irrationality of the sacred law rather than contribute, how- 
ever slightly, to its rationalization. 

As a status group law, the sacred law applies only to the Muslim but 
not to the subject population of unbelievers. As a consequence, legal 
particularism continued to exist not only for the several tolerated de- 
nominations, which were privileged . partly positively and partly nega- 
tively, but also as local or vocational custom. The scope of the maxim 
that "special law prevails over the general law of the land," although 
it claimed an absolute validity, was of doubtful application whenever 
particular laws happened to conflict with sacred norms, which, them- 
selves, were subject to thoroughly unstable interpretations. The com- 
mercial law of Islam developed from the legal techniques of late Antiq- 
uity a variety of norms, quite a few of which were directly taken over 



8 2 2 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VHl 

by the West. 111 In Islam itself, however, the validity of these commercial 
norms did not derive from enactment or from stable principles of a 
rational legal system. Their guaranty consisted in nothing but the mer- 
chants' sense of honesty and economic influence. The sacred traditions 
rather threatened than promoted most of these particularistic institu- 
tions. They existed -praeter legem. 

This impediment to legal unification and consistency always existed 
as a natural consequence wherever the validity of sacred law or im- 
mutable tradition has been taken seriously, in China and India just as 
in the territories of Islam. Even in Islam the system of personal laws 
applied to the purely orthodox schools, in the same way in which it 
once applied as part of the folk laws in the empire of the Carlovin- 
gians. 3 ' It would have been quite impossible to create a lex terrae such 
as the Common Law had become since the Norman Conquest and, 
officially, since Henry II. We actually find in all the great Islamic 
empires of the present time a dualism of religious and secular adminis- 
tration of justice: the temporal official stands beside the khadi, and the 
secular law beside the shari'ah. Similarly to the capitularies of the 
Carlovingians, this .-ecular law (qdyriin) began to expand from the very 
beginning, i.e, since the times of the Omayyad Khalifs, and to assume 
increasing importance in relation to the sacred law, the more the latter 
became stereotyped, it became binding for the secular courts whose' 
jurisdiction came to prevail in all matters except those concerning 
tutelage, marriage, inheritance, divorce, and, to some extent, setded 
lands and certain other aspects of land law. These courts are not con- 
cerned at all with the prohibitions of the sacred law but decide accord- 
ing to local custom, since every systematization of even the secular law 
was prevented by the continuous intervention of spiritual norms. Thus 
die Turkish Codex, which began to be promulgated in 1869, is not a 
Code in the true sense, but simply a compilation of Hanefite norms. 33 
We shall see that this state of affairs has had important consequences as 
regards economic organization. 



6. Persian Law 

In, Persia, where the Shiite form of Islam is the established religion, 
the irrationality of the sacred law is even greater, since there it does 
not even possess the relatively firm bases given by the Sunna. The 
belief in the invisible teacher (Imam) who, at any rate in official theory, 
is regarded as infallible, is only a poor substitute. 34 The members of the 
judiciary are "admitted" by the Shah, who, as a religiously illegitimate 



v ] Formal and Substantive Rationalization of Law 823 

ruler, is compelled to pay the greatest regard to the wishes of the local 
konoratiores. This "admission" is no "appointment," but rather the 
agTegation of candidates graduated from the theological schools. There 
are judicial districts, but the jurisdictions of the individual judges do 
not seem to be clearly fixed, as the parties may choose from among a 
number of competing judges. The charismatic character of these jurid- 
ical prophets is thus clearly indicated. The rigorous sectarianism of the 
Shtah, which is accentuated by Zoroastrian influences, would have 
prevented as unclean all economic intercourse with unbelievers if not 
through many "fictions" this seclusionism demanded by sacred law had 
ultimately been almost completely renunciated. There was thus brought 
about an extensive withdrawal of sacred legal influences from al- 
most all spheres of activity that are of any economic and political 
consequence. The same retreat of sacred law took .place in the po- 
litical sphere when constitutionalism was justified, through fetwas, 
by quotations from the Koran, Nevertheless, the theocracy is even 
( today far from being a negligible factor in economic life. Despite the in- 
creasing shrinkage of its range of influence, the tbeocratojc element in 
adjudication was and still is — together with the peculiar features of 
Oriental patrimonialism which will be treated later — of great significance 
for economic activity. Here, as elsewhere, this fact is due less to the 
positive content of the norms of the sacred law than to the attitudes 
prevailing in judicial administration, 'which is aiming at "material" 
justice rather than at a formal regulation of conflicting interests. It 
arrives at decisions in accord with considerations of equity even in 
those cases concerning real property which belong to its jurisdiction. 
Such considerations are all the more likely where the law is uncodified. 
Predictability of decisions of kadi justice is thus at a minimum. As 
long as religious Courts had jurisdiction over land cases, capitalistic 
exploitation of the land was thus impossible, as, for instance, in Tu- 
nisia." However, capitalist interests succeeded in eliminating this juris- 
diction. The whole situation is typical of the way in which theocratic 
judicial administration has interfered and must necessarily interfere 
witi* the operation of a rational economic system.- It is only the precise 
extent of this interference which varies from place to place. 



7. Jewish Law 

Jewish sacred law has certain formal similarities with Islamic sacred 
law, although its context was quite the reverse of that in which Islamic 
sacred law existed. 18 Among the Jews, too, the Torah and the interpre- 



824 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

tative and supplementary sacred tradition purported to obtain as a 
norm of universal validity in all areas of life; similarly, the sacred law 
obtained only for the coreligionists- But unlike Islam, the bearers of 
this legal system were not a ruling stratum but rather a pariah people. 
Hence commerce with outsiders was juridically foreign commerce, and 
it was to be governed in part by different ethical norms. To the legal 
norms obtaining in their environment the Jews tried to adapt them- 
selves to the extent permitted by that environment and to the extent 
that it did not run counter to their own ritualistic scruples. As early 
as in the period of the kings, the old local oracle, the Urim and 
Tkummim," had already been supplanted, by juridical prophets, who 
contested the king s competence to issue legal orders with much greater 
effectiveness than their counterparts in Germanic law. 

In the post-Exilic age the Nebiim, i.e., the soothsayers and quite 
probably law prophets of the period of the kings,'* were replaced, as we 
have seen, by the Pharisees who were originally a stratum of intellectuals 
of upper-class origin with marked Hellenistic traits; later they also in- 
cluded small middle-class people who engaged in scriptural interpreta- 
tion as a pastime. 3 " Thus there developed, at the latest in the last pre- 
Christian century, the scholastic treatment of ritual and legal questions 
and thereby the legal technique of the expositors of the Torah and the 
consulting jurists of the two Eastern centers of Judaism: Jerusalem and 
Babylon.* Like the Islamic and Hindu lawyers, they were the bearers 
of a tradition which in part rested on the interpretation of the Torah 
but was also in part independent of it. God had given that tradition to 
Moses during their forty-day encounter on Sinai. By means of this tradi- 
tion the official institutions, for instance, Icvirate marriage," were as 
markedly transformed as was the case in Islam or in India. Furthermore, 
like that of Islam and India, it was at first a stricdy oral tradition. Its 
written fixation by the Tannaim" began with the increasing fragmenta- 
tion of the diaspora and the development of a scholastic treatment in 
the schools of Hillel [ca. 30 b.c. — a.d. 10] and Shammai after the begin- 
ning of the Christian era. This -was undoubtedly done to guarantee 
unity and consistency once the judge had become bound to the re- 
sponses of the consulting legal scholars and therefore to precedents. As 
in Rome and England, the authorities for the particular legal sayings 
were cited, and vocational training, examinations, and licensing finally 
replaced the formerly free legal prophecy. The Mishnah" is still the 
product of the activities of the respondents themselves, collected by 
Rabbi Judah the Patriarch [ca. 135-220]. The Gemara, its official com- 
mentary, is, on the other hand, the product of the activities of the teach- 
ing lawyers, the Amoraim, who had succeeded the first interpreters and 



v ] -Formal and Substantive Rationalization of Law 825 

who translated into Aramaic and interpreted for the audience the 
Hebraic passages recited by the reader. In Palestine they bore the tide 
rabbi and a corresponding one in Babylon (mar). A "dialectical" 
treatment along the lines of occidental theology could be found in the 
Pumbeditha "academy" of Babylon. But this method became funda- 
mentally suspect during the later period of orthodoxy and it is con- 
demned today. Since then a speculative theological treatment of the 
Torah has been impossible. More explicidy than in India and in Islam 
the dogmatic-edifying and the legal elements in the tradition, the 
haggaJak and the halakkah, were separated from one another both in 
literature and in division of labor. In its external aspects the center of 
learned activity and organization shifted increasingly toward Babylon, 
The Exilarch (ftesk galutha) lived in Babylon from the time of Hadrian 
on and into the eleventh century. His office, which was hereditarily 
transmitted in the Davidic family, was officially recognized by the 
Parthian and Persian, and later by the Islamic, rulers; he was provided 
with a pontifical retinue, his jurisdiction was acknowledged for a long 
time, even in criminal matters, and under the Arabs he had the power 
of excommunication. The bearers of the legal development were the 
two competing academies at Sura and Pumbeditha, of which the former 
was the more distinguished. Their presidents, the Geonim, combined 
judicial activity as members of the Sanhedrin with consultative practice 
for the entire Diaspora and with academic teaching of law. The Geonim 
were partly elected by the recognized teachers and partly designated 
by the Exilarch. The external academic organization resembled that of 
the medieval and oriental schools. The regular students resided at the 
school; in the month of the Kalla" they were joined from abroad by 
large numbers of more mature candidates for rabbinical -office, who came 
to participate in the academic discussions of the Talmud. The Gaon 
issued his responses either spontaneously or after discussion during 
Kalla or with the students. 

The literary works of the Geonim, which began roughly with the 
sixth century, were, in form, no more than commentaries. Theirs was 
thus a more modest task than that of their predecessors, the Amoraim, 
who creatively expounded the Mishnah, or that of the successors of 
the latter, the Saboraim, who commented on it in a relatively free 
manner, not to speak at all of the Tannaim. But, in practice, and as a 
result of their elaborate and strong organization, they succeeded in 
having the authority of the Babylonian Talmud triumph over that of 
the Palestinian. It is true that this supremacy applied mainly to the 
Islamic countries, but up until the tenth century it was accepted also 
by the Jews of the Occident. It was only after that and following 



826 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

the extinction of the office of the Exilarch" that the West freed itself 
from the Eastern influence. The Frankish rabbis of the Carlovingian 
epoch, for instance, brought about the transition to monogamy. After 
the learned treatises of Maimonides** and Asher,* T although they were 
rejected by the Orthodox as rationalistic, it was ultimately possible for 
the Spanish Jew Joseph Karo, in his Shulchan Aruch," to create a 
compendium which, as compared with the Islamic canonic treatises, was 
very manageable and brief. In practice this work then replaced the 
authority of the Talmudic responses, and in Algiers, for example, as 
well as in Continental Europe, it came in many instances to guide prac- 
tice like a veritable code. 

Talmudic jurisprudence originated in a highly scholastic atmosphere 
and, during the very period of the emergence of the commentary on the 
Mishnah, it had much looser relations with legal practice than in both 
earlier and later periods. In consequence of these two factors, its formal 
appearance demonstrated with great clarity the typical characteristics 
of sacred law, i.e., its marked predominance of purely theoretically 
constructed, but lifeless, casuistry, which within the narrow limits of a 
purely rationalistic interpretation could not he elaborated into a genu- 
ine system. The casuistic sublimation of law was by no means slight. 
However, living and dead law were thoroughly intermixed, and no 
distinction was made between legal and ethical norms. 

In matters of substance innumerable receptions had occurred already 
in Talmudic times, from Near Eastern, especially the Babylonian, and 
later from the Hellenistic and Byzantine, environments. But not every- 
thing in Jewish law which corresponds to the common Near Eastern law, 
is borrowed. On the other hand, it is intrinsically improbable that, 
as a modern theory holds, some of the most important legal institu- 
tions of capitalistic commerce, for instance, the instrument payable to 
bearer, were invented by the Jews in their own law and then imported 
by them into the Occident.** Instruments containing a bearer clause 
had been known already in Babylonian law of the age of Hammurabi, 
and the only question is whether they were instruments simply allow- 
ing the debtor to discharge his debt by making payment to the holder or 
whether they were genuine negotiable instruments payable to bearer.* 
The former type ;of instrument can also be found in Hellenistic law.* 1 
But the legal construction ii different from what it is in the occidental 
negotiable instrument payable to bearer Quhaberurkunden), which was 
influenced by the Germanic conception of the paper as the "embodi- 
ment" of rights and was therefore much more effective for purposes of 
commercialization.** The Jewish origin of the modern types of securities 
is rendered improbable by an additional fact, viz., the fact that the 



v ] Format and Substantive Rationalization of Law 827 

Occidental precursors of these securities originated in the peculiar needs 
of the various forms of early medieval ywcedure which were clearly 
rational. Indeed the clauses which prepared the way for negotiability 
originally did not serve commercial ends at all but rather those of 
. procedure, above all that of providing a means for substituting a rep- 
resentative for the true party in interest." So far not a single importa- 
tion of a legal institution has been clearly demonstrated as attributable 
to the Jews."* 

It was not in the Occident but rather in the Orient that Jewish 
law played a real role as an influence in the legal systems of other 
peoples. Important elements of the Mosaic law were incorporated with 
Christianization into Armenian law as one of the components of its 
further development. 5 '' In the kingdom of the Khazars, Judaism was the 
official religion and thus Jewish law applied there even formally. 58 
Finally, the legal history of the Russians makes it seem probable that 
through the Khazars certain elements of the most ancient Russian law 
developed under the influence of Jewish-Talmudic law. 5 ' Thcie was 
nothing similar in the Occident. Although it is not impossible that 
through the mediation of the Jews certain forms of business enterprise 
may have been imported into the Occident, it is improbable that these 
forms would have been of national Jewish origin. They are much more 
likely to have been Syrian-Byzantine institutions or, through these, 
Hellenistic, or ultimately perhaps, institutions of common Oriental law 
deriving from Babylon. We must remember that in the importation of 
Eastern 'commercial techniques into the West the Jews were in competi- 
tion with the Syrians, at least in late Antiquity." 8 As far as its formal 
character is concerned, genuine Jewish law as such and, particularly, 
the Jewish law of obligations, were no appropriate context at all for 
the development of such institutions as are required by modem capital- 
ism. Its relatively unhampered development of the contractual type of 
transaction in no way changes this situation. 

- Naturally the influence of Jewish sacred law was all the more 
powerful in the internal life of the family and the synagogue. It was 
especially significant there in so far as it was ritual. The strictly eco- 
nomic norms were either, like the sabbatical year, 5 * confined to the^ 
Holy Land — even there it has, through rabbinical dispensation, now 
been abolished — or rendered obsolete by changes in the economic 
system, or, like everywhere else, were made innocuous by formalistic 
practices of circumvention. Even before the emancipation of the Jews 
the extent to, and sense in, which the sacred law was still valid varied 
greatly from place to place. Formally, Jewish sacred law manifested no 
peculiar characteristics. As a special body of law and as one which was 



I 



8 i 8 economy and law (sociology of law) [ Ch. VIII 

only imperfectly systematized and rationalized and which, while elabo- 
rated casuisticaily, was still not logically consistent, Jewish sacred law 
possessed the general features of a product which had developed under 
the control of sacred norms and their elaboration by priests and theo- 
logical lawyers. However interesting the theme may be in itself, we 
have in this place no reason to give it special attention. 



8. Canon Law 

The Canon Law of Christendom occupies a relatively special posi- 
tion with reference to all other systems of sacred law. 80 In many of its- 
parts it was much more rational and more highly developed on the 
formal side than the other cases of sacred law. Furthermore, from the 
very beginning its relation to the secular law was one of a relatively 
clear dualism, with the respective jurisdictions fairly definitely marked 
in a manner not to be found elsewhere. This situation was, first of all, 
due to the fact that the early church had refused for centuries to 
have anything whatsoever to do with .state and law. Its relatively 
rational character, however, was the product of several causes. When the 
Church saw itself compelled to seek relations with the secular author- 
ities, it arranged them, as we saw (ch. VI;?cv), with the aid of the Stoic 
conception of "natural law," that is, a rational body of ideas. More- 
over, the rational traditions of the Roman law lived on in its own ad- 
ministration. At the beginning of the Middle Ages the Western 
church took for its model the most formal components of Germanic 
law in its attempt to create its first systematic body of law, the -peni- 
tentiaU." Furthermore, the structure of the occidental medieval uni- 
versity separated the teaching of both theology and secular law from 
that of canon law and thus presented the growth of such theocratic 
hybrid structures as developed elsewhere. The rigorously logical and 
professional legal technique which was developed through both ancient 
philosophy and jurisprudence was also bound to Influence the treat- 
ment of Canon law. The collecting activity of the jurists of the church 
had to concern itself not, as almost everywhere else, with res-ponsa and 
precedents but with conciliar resolutions, official rescripts and decretals, 
and ultimately it even began to "create" such sources by deliberate 
forgery — a phenomenon 1 that did not occur in any other church,* 1 
Finally, and above all, after the end of the charismatic epoch of the 
early church, the character of ecclesiastical lawmaking was influenced 
by the fact that the church's functionaries were holders of rationally 
defined bureaucratic offices. This conception, which was peculiarly 
characteristic of the church's organization and which, too, was a conse- 



v ] Formal and Substantive Rationalization of Law 829 

quence of" the connection with classical Antiquity, was temporarily 
interrupted by the feudal interlude of the early Middle Ages but re- 
vived and became all-powerful with the Gregorian period [i.e., the late 
nth cent.]. Thus the occidental church traveled the pith of legisla- 
tion by rational enactment much more pronouncedly than any other 
religious community. The rigorously rational hierarchical organization 
of the church also made it possible that it could issue general decrees 
by which economically burdensome and hence impractical prescriptions, 
for instance, the prohibition of usury, could be treated as permanendy 
or temporarily obsolete (as we saw in ch. Vl.xii*). In numerous re- 
spects, it is true, Canon law can hardly conceal the general pattern so 
characteristic of all theocratic law, viz., the mixture of substantive legis- 
lative and moral ends with the formally relevant elements of norma- 
tion and the consequent loss of precision. But it has nonetheless been 
more strongly oriented towards a strictly formal legal technique than 
any other body of sacred law. Unlike the Islamic and Jewish legal 
systems, it did not grow through the activities of responding jurists. 
Eurthermore, in consequence of the New Testament's eschatological 
withdrawal from the world, the basic writ of Christianity contains only 
such a minimum of formally binding norms of a ritual or legal charac- 
ter that the way was left entirely free for purely rational enactment. 
The muftis, rabbis and geonim found parallels only in the fathers- 
confessor and directeurs de I'dme* 3 of the Counter-Reformation, and in 
certain divines of the old Protestant churches. Such casuistic ministry 
was then promptly productive of certain remote similarities to the Tal- 
mudic products, especially within the Catholic realm, 8 * But everything 
was under the supervision of the central offices of the Holy See, and 
binding norms of social ethics were currently elaborated exclusively 
through their highly elastic decrees. In this way, there arose that unique 
relationship between sacred and secular law in which Canon law be- 
came indeed one of the guides for secular law on the road to rationality. 
The relatively decisive factor was the unique organization of the Catho- 
lic Church as a rational institution (Anstalt). As to the content of 
the law, apart from such details as the actio spalU™ and the possessorium 
summariissimum** the most significant contributions of Canon law were 
the recognition of informal contracts, 87 the promotion in the interest 
of pious endowments of freedom of testation, 08 and the canonist con- 
ception of the corporation. The churches were, indeed, the first "insti- 
tutions" in the legal sense, and it was here that the legal construction 
of public organizations as corporations had its point of departure, as 
we have seen [sec. it: 6]. The direct practical significance of Canon 
law for secular law, as far as substantive private, and especially cem- 
merdal, law was concerned, varied a great deal in the course of time; 



830 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Cfe. VIII 

"in the main, however, it was -relatively slight even in the Middle Ages. 
In Antiquity Canon law had not been able to bring about the legal 
abolition of free divorce even as late as Justinian/* and the submission 
of any cases to the spiritual courts had remained entirely a matter of 
discretion; The theoretical claim to an all-embracing substantive regula- 
tion of the entire conduct of life, which Canon law shared with all 
other systems of theocratic law, had in the Occident relatively harm- 
less effects upon legal technique. The reason was that Canon law had 
found in the Roman law a secular competitor which had achieved an 
extraordinary formal perfection and which, in the course of history, had 
become, the universal law of the world. The early Church had re- 
garded the Roman Empire and its laws as definitive and eternal. And 
where the Canon law tried to extend its dominion it met with the 
vigorous and successful opposition of the economic interests of the 
bourgeoisie, including that of the Italian cities, with which the Papacy 
had. to ally" itself. In the municipal statutes of both Germany and 
Italy, and in Italian guild statutes, we find severe penalties for citizens 
bringing suit in an ecclesiastical court, and we can also find regulations 
that allow with an almost astonishing cynicism the discharge of spiritual 
penalties that might be incurred for "usury" hy lump sum payments 
by the guilds. 70 Furthermore, in the rationally organized guilds of the 
lawyers as well as in the assemblies of the Estates the same material 
and ideal class interests, especially of the lawyers, turned against ec- 
clesiastical law just as they did (in part) against Roman law. Apart from 
a few institutions, the main influence or" the Canon law lay in the 
field of procedure. In contrast with the formalistic proof of a secular 
procedure based upon the adversary principle, the striving of all theo- 
cratic justice for substantive rather than merely formal truth produced 
quite early a rational but specifically substantive technique of inquisi- 
torial procedure." A theocratic administration of justice can no more 
leave the discovery of the truth to the arbitrary discretion of the litigants 
than the expiation of a wrong. It has to operate ex officio and to create 
a system of evidence which appears to offer the optimal possibilities 
of establishing the true facts. Canon law thus developed in the Western 
world the procedure by inquisition, which was suhsequendy taken 
over by secular criminal justice. 72 The conflicts about substantive Canon 
law became later an essentially political matter. Its still existing claims 
no longer lie in fields which are of practical economic relevance. 

After the end of the early Byzantine period, the situation of the 
Eastern churches began to resemble that of Islam as a result of the 
absence of both an infallible agency for the exposition of doctrine and 
of conciliar legislation. The difference lay only in essentially stronger 



v ] Formal and Substantive Rationalization of Law 8 3 1 

caesaio-papistic claims of the Byzantine monarchs, as compared with 
those which could be voiced by the Sultans of the East after the separa- 
tion of the Sultanate from the Abbassid Caliphate, ™ or even as com- 
pared with those which the Turkish Sultans could make effective after 
the transfer of the Caliphate from Mutawakkil to Sultan Selim,™ to 
say nothing of the precarious legitimacy of the Persian Shahs vis-a-vis 
their Shiitic subjects.™ Still, neither the late Byzantine nor the Russian 
and other caesaro-papistic rulers have ever claimed to be able to create 
new sacred law. There were, therefore, no organs at all for this purpose, 
not even law schools of the Islamic sort. As a result, therefore, Eastern 
Canon law, thus confined to its original sphere, remained entirely stable 
but also without any influence on economic life. 



NOTES 

1. Ius honorarium — The law created by the praetor in addition to, or in 
modification of, the ius civile as contained in the formal leges or in ancient tra- 
dition. 

2. CF. Plucknbtt, 82 et seq.; 2 Association of American Law Schools, 
Select Essays in Anglo-American Legal History O908) 367. 

3. Legal procedure, civil or criminal, is said to he inquisitorial when the 
ascertainment of the facts is regarded primarily as the task of the judge, while in 
the so-called adversary procedure the true facts are expected to emerge from the 
allegations and proof of the parties without the active cooperation of the judge. A 
shift from the predominantly adversary procedure of the Germanic laws was initi- 
ated in the later fiddle Ages hy the Church, whose model became influential for 
procedural development throughout Western Europe. 

4. On the Roman distinction between hts and fas see Jolowicz, op. at. 96 
et seq.; Mitteis 22—30 and literature there listed. For a baroque use of the terms, 
see BiACXSTONE III, 2. 

5. Namely, of continental Europe, i.e., the procedure which was common on 
the Continent before the reforms introduced by the codification of the nineteenth 
and twentieth centuries. In this and the following sentences Weber speaks also, 
however, of the continental procedure of the present day, which, as will appear, 
is^not basically different from Anglo-American procedure. 

6. Weber has anticipated the procedural reforms of the modem totalitarian 
states which have shown marked tendencies to strengthen the inquisitorial at the 
expense of the adversary principle. Cf, Ploscowe, Purging Italian Criminal Justice 
of Fascism (1945), 45 Col. L. Rev. 240; Berman, Justice in Russia 207, 
Ebbhhard Schmidt, Einfuhrung in die Gsschichtb der dbutschen Straf- 
kbchtspelegb (1947) 406; also Schoenxe, Ztvilprozbssrbcht (6th ed. 1949) 
25; H. Schroeder, Die Herrsehaft &er Parteien i*w Zivilprozess (1943), 16 An- 
NUARIO DI DrRITTO comparato 168. 

7. Apparently, Weber is thinking here of the democracy of the Athenian 
rather than of the modem Western type. 

8. Famous case in which Frederick tried to intervene in a private lawsuit. 

In 1779, upon suit by his landlord, a baron, Arnold, a humble miller, was 
ejected because of nonpayment of rent. Arnold turned to the king who ordered 



832 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cfc. VIII 

the court to vacate its judgment and restore Arnold to the possession of tie mill. 
The judges refused to render a decision "which would be against the law." When 
they continued in their "obstinate" refusal to obey the king's angrily repeated com- 
mand, he ordered the supreme court to sentence them to jail. When the supreme 
court judges declared that the law would not permit such a step, they, together 
with the judges of the lower court, were ordered to be arrested by the king and 
were sentenced by him to one year's imprisonment, loss of office, and payment of 
damages to Arnold. It was one of the first acts of government of Frederick's suc- 
cessor, Frederick William II, to comply with the demand of the public to reha- 
bilitate the judges and to indemnify them out of the public treasury. See W. 
Jellznbk, Verwaltungsrbcht 85 and literature cited there; for an account in 
English, see the translation by I. Husik of R. Stammler, The Theory of 
Justice (1925) 243 et seq. 

9. Cf. A. Msndblssohn-Bartholdy, Impbrium dbs Richters (1908). The 
allusion points to the early period when Rome was dominated by the patricians, 
who entirely dominated the administration of justice, until their power was broken 
in the long struggle of the plebeians. Cf. Momm»sn, History of Rome (Dick- 
son's tr. 1900) 341-369; Jolowicz 7--12. 

10. Cf. I. Sanford, Studies and Illustrations ov the Great Rebellion 
(1858); P. A. Gooch, English Democratic Ideas in the Seventeenth 
Century (mded. 1927) 308; Holdsworth 412. 

1 1 . In their struggle against patrician domination the plebeians achieved one 
of their most important successes when they compelled the patricians to consent 
to- the appointment of a commission to write down the laws and thus to make 
their knowledge generally accessible. TJie product of the commission's work was 
the law of the Twelve Tables, which is reported by Livy (III, 9 et sea.') to have 
been promulgated m 450/449 b.c. and which for centuries was taken as the 
basis of the Roman iws civile. 

12. Prozessmstruktion is a term of art of German theory of procedure. It 
means the role and activity of those persons who keep a lawsuit, civil or criminal, 
going and direct the course which it has to follow. In the type of procedure men- 1 
tioned in the text, the Prozessinstruittion is vested in a public officer or potentate 
who presides over the trial or at least that part of it in which the issues are 
formulated, but does not himself render the final judgment. The principal illustra- 
tion is constituted by the role of the Roman praetor who presided over the pro- 
ceedings in iure, in which there were formulated, with his active participation, 
those issues of law or fact or both which had to be decided, in iudido, by the 
index, whom the praetor would appoint. 

Another variety is represented by popular assemblies, especially of the Ger- 
manic type, which would be presided over by a prince or his representative or by 
some other person of authority, while the decision would be made by all, or some, 
of the members of the assembly (see sec. i«:6). Both the Roman praetor and 
the Germanic prince, etc., had the Banngewalt, i.e., the power to subpoena at- 
tendance upon penalty of outlawry or forfeiture of property, 

13. See Westbrmarck, History op Human Marriage c. XIX; Freud, 
Totem and Taboo (Brill transl. 1927) c. I; Fortune, R., Incest, 7 Enctc. Soc. 
Sci* 62c and further literature cited there. 

14. On the role of the Church in maintaining or reestablishing the principle 
of freedom of testation, see Pollocx and Maitland II, 349; Holdsworth III, 
536, 541 etseq. 

1 5. Here Weber apparently follows Jhbring 263 In contrast Mtttbis 23, n. 
2, points to the "well-known" fact "that in Roman private life the promissory oath 



v ] Formal and Substantive Rationalization of Law 833 

was hardly "used in any situations other than those in which legal coercion was 
lacking." Explicitly referring to Jhering, Mitteis states that "the idea of a religious 
component in the secular law of Rome has at one time been hadly abused" (op. tit. 
24, n. 4). More recently such ideas have been resuscitated, however, even more 
radically by Hagekstrom, Der romische Obligationsbeghiff (1927), and 

DAS MACISTRAT1SCHE lug IM ZuSAMMBNHANG MIT DEM ROM. SaKRALRSCHT 

(1929). 

16. See Jhertng I, et seq. Recent research has thrown doubt on the correct- 
ness of applying the word fas to the sacred law of Rome. Cf. the following state- 
ment in Jors and Kunxbl 19, n. 2: "In modem literature the distinction be- 
tween ius and fas is commonly regarded as equivalent to that between temporal 
and sacred law. Such use of the terms does not, however, correspond to Roman 
usage. At first, fas meant that sphere which was left free by the Gods. It included 
quite particularly those aspects of life for which the temporal law could be 
effective. In an ethically deepened usage, which came to be frequent with the 
Ciceronian period, fas means that which is religiously permitted in contrast to iu$, 
which means that which is commanded. Even in this sense, fas dees riot mean, 
however, a religiously moral order in contrast to ins as a man-made order. Such 
an idea did not arise before Christianity. Even less does fas mean the complex 
of rules concerning religious rites and similar problems. These rules belong to the 
tws, as iws sacrum or ius fontiftcivm. The development of the meaning of fas is 
Jargely paralleled by that of the Greek word 3<r«ov; cf, Wilamowitz, Platon I. 
61; Latte, Heiliges Recht 55 n. 16." Cf. also supra n. 4. 

17. On the College of Augurs and its interventio, see Jhering I, 329 et sea.. 
On the abolition of the Areiopagos, "by a decree which was carried, about b.c. 458 
and by which, as Aristotle says, the Areiopagos was 'mutilated' and many of its 
hereditary rights abolished" (Arist., Pol. ii 9; Cic, De Nat. Dbor. ii 29; Db 
Rep, i 27), see the article in W. Smith, Dictionary of Greek and Roman 
Antiquities (1848) 128. 

18. Weber's treatment of the relations between religion and law corresponds 
to the prevailing opinion, as expressed especially by Mitteis. A much closer rela- 
tionship an<? a niote far-reaching influence of magico-religious ideas upon the 
development of Ronun law has more recently been maintained by Hagerstrom, 
op. cit. supra n. 15; as to further literature on the problem see Jors and Kunxbl 
4. n. 3, 393. 

19. On Hindu law see the article by Vesey-Fitzgerald in 9 Encyc. Soc. Sci. 
257, and literature cited there; Weber seems to have used primarily Jolly's article 
in Buhler's Griindriss der Indoarischen Philologd3 (1886; Engl, transl. by 
Ghosh. Calcutta, 1928) and the Digest ov Hindu Law by West and Buhler 
(Bombay, 1867/69). Cf. the footnote in Weber's Gesammblte Aufsatze zur 
Rbligionssoziologie (2nd ed. 1923), Hinduismus und Buddibsmijs II, 2. He 
also seems to have been acquainted with the pertinent passages in Kohler and 
Wenger 101-130, and with the works of Sir Henry Maine: Ancient Law; 
Villagb Communities; Early History op Institutions; Eahly Law and 
Custom. 

20. Weber uses here the old German ma.rim, "Willkiir bricht Landrecht," 
which, as shown above, sec. U:$, meant that in the later Middle Ages and the 
early centuries of the modern age the customary or specially created law of some 
group prevailed over the general law of the land. The parallel with this German 
state of .affairs is admissible only when one considers that Hindu law could not 
strictly be called the law of any particular territory in the sense of the German 
Landrecht but rather the law of the believers, which was simply regarded as the 



834 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

law as long as it did not have to compete with any other legal system, i.e., in the 
period before the Mohammedan invasion. 
31. Seeswpro,sec.ii:2:(4b). 

22. As to the law in the countries of Buddhist influence, see Vesey-Fitz- 
CBHAiD, foe. cit, in sec. iv, n. 24; also B urge's Commentaries on Colonial and 
Foreign Law (ed. 1908-1914), 6 vols. The following articles in 1 Schlbgbl- 
SERCEr, Rbchtsvergl. Handworterbuch (1929) deal with these countries' 
modem legal systems, in which the Buddhist traditions are still influential, al- 
though in various degrees: W. Trittei Siam 470; H. Mundell, Maloiische Staaten 
417; H. Solus, Die jrambsischen Besitzungen und Kohnien 535, 553 (Cam- 
bodia); F. Grobbs, Britisch IntHen 319-328; 324-325 (Burma). In Ceylon, 
Buddhist law was largely superseded in the eighteenth century by Roman-Dutch 
law. See Leb, Introduction to Roman-Dutch Law (1925); Psrecu, Laws 
of Ceylon (1913); J. Kokleb, Rbchtsvsrgleickbndb Stuoten (1889) 211 
etseq., 251. 

23. The principal literature on China which was used by Weber is fated in 
the introductory note to bis essay on die ethics of Confudaausm and Taoism (1 
Gmammeltb Aufsatzb zur RmjOKWSsaDOLOGiB (3rd ed 1934) 276; tr. by 
H. Gerth, s-t. The Religion or CsnM* [195 i]). Chinese law is -fty**— t by him 
especially on pp. 391 et seq. and 436 seq. of the work just mentioned. Weber 
apparently used the chapter on *>fr«— Law (pp. 138 et saj.) m Kohlss and 
Wencrr and the literature listed there at p. 153. For further orientation on 
Chinese law see Escarra, Chinese. Law, 9 Encyc. Soc. Scr. 249 and literature 
listed there at p. 266; Betz and Lautenschlager, China, in 1 Schlegelberger's 
Rbchtsvergl. Handworterbuch 328, ana literature listed at pp. 389-391; see 
also Busngex, . Qoellen zur RechtsgbschiChtb der Tang Zbtt (1949); 
C. H. Pears, Recent Studies on Chinese Law (1937), Weber's observations 
are limited, of course, to the law of the pre-revolutionaiy China. 

24. The theory of a major reception of Roman or Hellenistic ideas or insti- 
tutions in Islamic law has recently encountered well-stated opposition. See R. 
Vesey-Fitezgerald, Alleged Debt of Islamic to Roman Law (1951 ) in 67 L.Q. Rev. 
81; cf. Schacht, Origins of Islamic Jurisprudence (1951) and Foreign Elements 
m Ancient Islamic Law (1950), 32 Comp. Leg. 9. 

25. Omayyads (66 1-750)-— Arab dynasty following in the caliphate the im- 
mediate associates of Mohammed (abu-Bekr, Omar, Osman, and Alt), leading in 
the Arab-Islamic expansion into Armenia, Iran, Afghanistan, the Indus area, 
North Africa, and Spain; the revolutionary succession of the Abbassids (750-1258) 
residing in Baghdad marks the rise of the Persian element and the amalgamation of 
the Arab conquerors with their Oriental subjects. Cf. H. C. Becker, in 2 Cam- 
bridge Medieval History (1913) 355-364. Sassanids (226-641) — last Persian 
dynasty befote the Arab conquest. 

26. Post fate of coge mtrare — claim of rightful compulsion against heretics, 
especially avmade against the Douatists by Augustine (Epist. 185, ad Bon if actum, 
a.». 417), wno ascribes to the Church the right and duty to compel membership 
and obedience even on the part of the unwilling. As authority he refers to the 

~ parable of the great supper (Luke 14:23), in which the host bids the servant that 

he "compel to enter" (coge intrare) all those whom lie will encounter. — Schaff, 

, Histort of the CHRISTIAN Church (1886) 144, The argument was also used, 

i first it seems, in 1009 by Bruno von Querfurt, in the agitation for the Crusades 

and the compulsory conversion to Christianity of Moslems and other infidels; cf. 

Erdmann, Die Entstshung dbs Kreuzzugsgedankens (1935) 97. 

27. Doubtful; see supra, n. 24. ' 



v ] Formal and Substantive Rationalization of Law 835 

28. Written before the separation of church and state by Kemal AtatQrk; tee 
now the Constitution of April 20, 1924, and the Civil Code of October 4, 1926, 
which is in the main a translation of die Swiss Civil Code of 1907. 

29. This statement of Weber's is no longer correct On recent reforms of Is- 
lamic legal education see A. S6kaly, La T^orgmisation it VUnwemU d'El-Azhar 
O93O, 10 Rsvus bbs Stums Islamiques 1. 

30. Fttwa—a jurist's opinion on a concrete case, similar to the responsa of die 
Roman jurists; cf. ntpra, sec. tv:$. 

31. This statement of Weber's, as also that in his History 258, seems to be 
based upon the works of Josef Kohler, especially Koklbr and Wsnobr 97; Die 
IskmUhre vom Rechtsmwhrmtch 29 Z.f.v.R. 432-444, and Moderns Rschts- 

FBACBN BEI ISLAMTIISCHJW JoBMTBN. Em BeITRAC ZU IHRBR LoSONG (1885). 

But compare die cautious statements by Goldsohmujt 98, 99, 246, 250; and Uf^ 
sprOngt des MaWerrechts, msbesondere sensal (1882), 28 Z-e. osa. Hamsbls- 

SECHTJ 1 5. 

Strictly denying any influence is P. Rehme, Gtschicku des Hmtdehrechts in 
t Ebunurc Hakdsuoi m oesamtbn Handhl«»bciht» (191 3) 95. ("Was 
das Vethilmis des. jsjamtischen Rechtes zu den icmanitchea ankngt, so ist fest- 
zmstBen; bisher iff nocfc for fcemen Punkt dez Nachweia emer Einwirkung jenes 
anf dieses erbracht worden."') See also, pp. 98, 99, 102, 108. In addition to die 
authorities above mentioned, compare also about the contractus mohatro* (Arabic 
khatar), Cohn,' Die Kreditgesch&ftc in 3 Endsmann, Handbuch des dbutsckbx 
Handels-; Sbb- und Wschsblreckts (1885) 846; 2 Winmcheq), Lbbebuoh 
BBS Pandbetenrbchts (1900) 73; about negotiable instruments, cf. Grasbhovb, 
Das Wechsblrecht dsr Arasbr (1899); Rbhmb, he, cit. 95; Kohler, Islam-^ 
rechtm 17 Z.e.v.R. 207. 

32. Seeswpra,$ec.ti:5and»t:2. 

33. Weber's main sources seem to have been Kohler in Kohi.br and Wsn- 
ger 130, and literature cited there at p. 153. On modem Persian law see the 
article by Greenfield in 1 Schlecelberger, op. cit., 427. 

34. The word im&m, which in general simply means teacher, has in the Shiite 
tradition assumed the special meaning of spiritual and temporal head of all Is- 
lam. The first Imam is AH, Mohammed's son-in-law. None but Ali's descendants 
can be his successors. The Omayads, who after Ali's assassination assumed the 
khalifate, are regarded as usurpers by the Shiites, among whom distension also 
broke out, however, as to which of the several lines of Ah's descendants were to 
be regarded as the charismatkally true. All agree that that imam, whom they 
respectively regard as the last legitimate one, transcended from earth, has since 
been living concealed from man as the "invisible imam," and will at the end of 
time reappear as mahdi to save the world from all evil and to establish his king- 
dom of peace and justice. Certain eminent sages are believed to have had personal 
contacts with the invisible imim and to have received revelations from him. Cf. 
Goldzdtbr, op. cit. ii$etseq. 

35. Cf. Solus in 1 ScKLBosiBEXOBR, op. tit. 545. 

36. In his own book on Judaism Weber does not deal with rabbinical law. 
The literature on Jewish law which Weber is likely to have known is listed in 
Kohler and Wbmgbr 151/152; for further information see Gulak, Jewish Law, 
9 Enctc. Soc. Sci. 219, and literature there at p. 164; also D. Daube, Th* Civil 
Law of the Mischnah C 1944), iSTulanb L. Rev. 551. 

37. The Urim and Thummim seem to have been objects attached to the 
breastplates of the High Priest (Exod. 28:30) and used by him to ascertain the 



836 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. Vlll 

wilt of God on questions of national importance (Num. 17:21), They disap- 
peared in the period of the later kings (Ezra 2:63). 

38. On divination and prophecy in Israel, see AJ 112 et seq., 179 et seq., 
281 etseq. 

39. On the sociological place and role of the Pharisees, Weber has expressed 
himself at AJ 401 et seq, 

40. Both the Palestinian and the Babylonian Talmud were concluded in the 
later part of the fifth century b.c. 

41. Deut. 25:5-10: Where a man dies without a male descendant, the widow 
must not marry a stranger, but the surviving brother of the deceased must take 
her to wife, and the first son born of them succeeds to the name and property of 
the deceased, cf. Cohon, Levirate Marriage in Perm's Encyc. of Religion 
Ci945) 44tf and literature stated there. 

42. Tannaim ( Aramaic )-Je wish scholars of the first two centuries a.d. 

43. Older layer of talmudic canon. 

44. Convention of scholars, held twice annually at the Babylonian academies; 
see 2, Levy, Talmud Worterbuch 331. 

45. a.d. 942, after an internal Quarrel between the Exilarch David ben Zak- 
kai and the philosopher Saadia ben Joseph al-Fayyumi, David's two successors 
were assassinated by Moslems. 3 Graetz, History of the Jews (3jrd ed.) aoi. 

46. 1 135(1 139?)-! 204, foremost Jewish Philosopher of the Middle Ages, 
lived in Spain and North Africa; see Guttinann in 10 Encyc. Soc. Sci. 48. Mai- 
monides' treatise on the law, Mischnah tomh or Yad-iuichazahah, was completed 
in 1 180; for an English transi., see Rabetowitz, The Code of Maimonjdbs, 
Book 13, The Book of Civil Laws (1949). 

47. Jacob ben Asher, born in Germany, died in Toledo, Spain; his legal trea- 
tise, Turim, was written between ^327 and 1340. Of. 7 Graetz, Ioc. cit. (3rd 
ed.) 298. 

48. 1488-1575; see Ginzbcrg in 3 Jew, Encyc. 583; also B. Cohen, The 
Shulhan Aruk as Guide for Religious Practice To-day (1941), 

49. The author referred to in the text seems to be Werner Sombart, who, in 
his The Jews and Modern Capitalism ascribes to the Jews a decisive role in 
giving the capitalistic organization its peculiar features, by inventing a good many 
details of the commercial machinery which moves the business life of today, ana 
by cooperatin in the perfecting of others (p. n). However, in his detailed dis- 
cussion of this alleged Jewish achievement, Sombart states expressly that "it would 
be difficult, perhaps impossible, to show what that share was by reference to doc- 
umentary evidence" (p. 63)." Sombart*s extensive hypotheses were readily accepted 
in National-Socialist literature. On the problem of the influence of Jewish law, 
see also Kuntze, Die Lekre von den Inhabbrpapiersn (1857) 48, who dis- 
cusses some institutions of ancient and later Jewish law but leaves it expressly 
open whether or not they had any influence on Western developments. 

50. Cf. Kohler, Preiser, and Ungnad, Hammurabi's Gbsetz I, 117, III, 
237; Schorr, Altbabylonische Rechtsurxunden (1913) 88. 

51. Cf. Frsundt, Wbrtpafihrb im antdien und MrrrELAiTBRLiCHBN 
Recht (19 10) and extensive critical discussion of this book by Joseph Partsch 
(1911) 70 Z.P. Handblsr. 437. 

52. Cf. Bmnner, Carta and Notttia, Ein Beitrag zur Geschichte der germanr 
ischen Urkvnde, in Commsntationes philoi.ocae in honorem Thsodobi 
Mommsbni (1877) 570, repr. 1 Abh. 458. 

53. Weber" here follows Brunner, Bbitrace zur Geschichte und Dog- 
mata der Wbhtpapisxe (1877/78), Z.F. Handel sr. XXII, 87, 518; XXIII, 



v ] Forma? and Substantive Rationalization of Law 837 

225; repr. Jorschungen zur Geschichte des deutschen u. franzosischen 
Rschts (1894); and Das franzosische Inhaberyapier des Mittefalters, in Fest- 
schrift furThol C 1879) 7; repr. r Abh. 487. 

54. Cf. Goldschmidt III. 

55. Cf, Kohler, D«s Recht der Armenia- (1887), 7 Z.F. vgl. Rechtsw. 385, 
396; but without any evidence. 

* 56. The Khazars, one of the peoples of the North-Caucasian steppes, estab- 
lished an empire between the Black Sea and the Caspian. They reached the 
zenith of their power in the eighth and ninth centuries. Refusing to yield to 
pressure from Christian Byzantium and the Mohammedan khalifs, the dynasty, 
about a.d. 740, adopted the religion of the Jews, who had been expelled from 
Byzantium and found refuge with the Khazars. Jewish law did not become, how- 
ever, the general law of the Khazar empire but only of those who professed the 
Jewish faith. With the arrival of the Viking rulers (Varangians) in Kiev in the 
late ninth century, the Khazar empire was steadily reduced in size and finally 
destroyed by Svjatoslav of Kiev (964-972). Kadlec in 4 Cambridge Medieval 
History 187. 

57' Weber's source seems to be S. Eisenstadt, Vier altrussische Rechts- 
detikmater (1911), 26 Z.F. vgl. R. 157, who does not state more, however, than 
a brief conjecture. 

58. On the role of the Syrians in late Antiquity, see Scheffer-Boychors:, Zwr 
Geschichtc der Syrer Km Abendlande, 6 Mttteiliingen fur osterreicbische 
Gesch^chtsforsohung 521: Mommsen, Bomische Geechichye 467. 

■jo. Sabbaticai year: Every seventh year the Bible (Lev. 25:1-25; Deut. 15:2) 
ordained that loans fcx? canceled, serfs be freed, pledged property restored, and land 
left fallow, with all uncultivated growth left to the poor and the stranger. To 
what extent these rules were ever practiced is uncertain. They became definitely 
meaningless with the invention of the Prosbol, which tradition has ascribed to 
Hillel (30 B.C. -a.d. 10). The debtor pretended to enter upon his obligation to- 
ward the court rather than the creditor himself. Upon the basis of spurious bibli- 
cal authority a debt thus created was held not to be affected by the biblical com- 
mand. Cf. Greenstone, tc Jewish Encycl. 219.. 

6c. There is no comprehensive history of the Can'^n Law; for a concise sur- 
vey, see Hazeltine, 3 Encyc. Soc. Sci. 179, with bibliography at 185, 

61. Cf. J. T. McNeill and H. M. Gamer, Medieval Handbooks of Pen- 
ance (1938). 

62. The most famous cases were those of the Donation of Constantine and 
the False (or Pseudo-Isidorean) Decretals. The first-named instrument, which was 
fabricated, probably, in Rome between the middle and the end of the eighth cen- 
tury, purported to be a grant by the Emperor Constantine, in gratitude for his 

'conversion by Pope Silvester, to that pope and his successors forever, of spiritual 
supremacy over all other patriarchs as well as of temporal dominion over Rome, 
Italy, and the entire Western region. This Consti.tu.twfc Constantini, which was 
used by the medieval papacy as one of the bases for its claims of general spiritual 
supremacy and of temporal power of the city of Rome, was included in the ninth 
century in the extensive collection of spurious decretals, which purported to be the 
work of Isidor of Seville, the legendary author of a seventh-century Spanish col- 
lection of decretals. The principal aim of the forger was the strengthening of the 
power of the bishops within the church and as against the state. Both the Dona- 
tion of Constantine and the False Decretals were recognized as forgeries by the 
humanist scholars of the sixteenth century. Cf. 7 Enctc. Brit. 127, 524, with 
extensive bibliographies. 



838 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

63. Spiritual advisers, especially of French royalty and nobility of the seven- 
teenth ana eighteenth centuries. 

64. The allusion is to the casuistic handbooks of confessional practice and 
moral theology of the seventeenth and eighteenth centuries, mostly of Jesuit or 
Redemptorist provenience. The most celebrated is the Homo Apostolicus of St. 
Alfonso dei Liguori, published 1 753/5. 

65. Actio spolii — originally, as stated in the False Decretals (see 'supra n. 
62}, the action by which a bishop ousted from his see can claim restoration 
without having to prove bis right; later, on the basis of a canon of Innocent III, 
of 1215, action aiming at the speedy restoration to possession pertaining to the 
possessor who has been forcibly ejected as well as to any other person whose in- 
terest has been affected by the ejection. Cf. Engelmann and Mil las 581. 

66. Summarussimumi summary proceeding of utmost speed and excluding de- 
fenses not susceptible of immediate proof. The judgment to be rendered in the 
sutnmariissimum is provisional and subject to review in the' summarium or the 
ordinarium; cf. Engelmann and Millar. The summariissimum of canon law 
procedure influenced the development of summary procedure* in the temporal 
courts. 

67. Ames, History of Parol Contracts Prior to Assumpsit (1895) 8 Harv. L. 
Rev. 252; re*r. Ass. of Amei. Lair Schools, Selected Essays on Awcxo- Ameri- 
can Legal Hist. (1909)111, 304; Pollock and Maitland II, 184. 

68. Pollock and Maitland II, 331; Holdsworth IIL 534; R. Caillemer, 
The Executor in England and on the Continent, Ass. of Amer. Law Schools, Se- 
lected Essays on Anglo-American Lecal History III, 746. 

69. a.d, 527-565. In Justinian's Corpus Iuris divorce is treated primarily in Di- 
gest 24.2. 

70. The source of this statement of Weber's could not be located. The only 
references that could be found are to a statute of Brescia of 1252, mentioned in 
Kohler, Das Strafrecht dbr italienischen Statutbn (1897) I, 592 and a 
statute of Trieste, of 1420, mentioned by Del Giudice in 6 Pertilb, Storia del 
diritto italiano (1900) Part I, p. 82, n. 35. The former threatens with punish- 
ment anyone who invokes the ecclesiastical court against the taking of interest as 
declared permissible by the city. The second prohibits a debtor to invoke the eccle- 
siastical court before he has paid the full debt as agreed and, apparently, includ- 
ing interest. Cf, Lastig, Entwicelungswegb uns Quellen dss Handbls- 
rechts (1877) §§ 14-17; 34-37; same, Beitr&ge zur Geschichte ties Handeh- 
rechts (1848) 23 Z.v. Handblsr. 138, 142. 

71. Seeswpra, sec. v:i. 

72. See A. Esmein, History of Continental Criminal Procedure 
(transl. by Simpson, 1913) 78. 

73. In 1258 Musta'sim, the last kaliph of Baghdad, was defeated and deposed 
by Hulagu, the grandson of Jenghiz Khan. 

74. After their defeat by the Mongols, the Abbassids continued a shadow 
sovereignty in Egypt until that country was conquered by the Turkish Sultan 
Selim I m 1517. 

75. Following the fall of the Sassanian dynasty and the Arab conquest in 637, 
Persia was under alien rulers until its reconstitution as a national state under the 
Shiite dynasty of the Safavi in 1405. According to the official doctrine established 
at that time, the Shah is the representative of the "invisible Imdm." 



vi ] Itnperium and the Codifications 839 

vi 

Imperium and Patrimonial Enactment: 

The Codifications 



r. Imperium 

The second authoritarian power which has intervened in the formal- 
ism and irrationalism of the old folk administration of justice is the 
imperium of the princes, mapstrates, and officials. We shall not con- 
sider here that special law wiich a prince may create for his personal 
retinue, £jh own suborifaiMfc: officials — especially his army — and of 
which highly significant sonants still persist today. 1 These legal 
creations have led in the past to wry important structures of special 
law, e.g., the law of patron and client, master and servant, and of lord 
and vassal, which in Antiquity as well as in the Middle Ages escaped 
the control of the general or common law and the jurisdiction of the 
regular courts, and differed from the general law in various complicated 
ways. Although these phenomena are of political importance, they have 
in themselves no formal structure of their own. In accordance with the 
general character of the legal system, these structures of special law 
were governed, as for instance in Antiquity the law of patron and 
client, by a mixture of sacred norms on the one hand and conventional 
rules on the other; or they had, like the medieval laws of master and 
serf, or lord and vassal, a status group character; or they are regulated, 
like the present-day lav/ c? public and military service, by certain special 
norms of administrative and other public Jaw, or are simply subjected 
■ to special substantive rules and procedural authorities. 

What we are concerned with are rather the effects of the imperium 
on the genera] (common) law, its modification, and the emergence of 
a new law of general validity alongside, in place of, or in contrast to, 
the common law. Quite particularly shall we be concerned with the 
effects of this situation upon the formal structure of the law in gen- 
eral. Only one general point should be made here: the degree of de- 
velopment of structures of specal laws of this kind is a measure of 
the mutual power relationship of the imperium to the strata with which 
it must reckon as supports of its power. The English kings were suc- 
cessful in preventing a special feudal law from emerging as a particu- 



840 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

laristic system, as it did in Germany, so that it was rather absorbed 
into the unified lex terrae, the Common Law. 2 However, the entire land 
law, family law and inheritance law acquired a strong feudal flavor. 5 
The Roman state's law took note of the dientela in certain isolated 
norms, mostly in curse formulae, but in the main it intentionally re- 
trained from drawing this institution, important though it was for the 
social status of the Roman nobility, into the regulatory sphere of private 
law.* Like the English law, the Italian statute of the Middle Ages 
created a uniform lex terrae* In Central Europe no such achievement 
occurred until the advent of the absolutist princely slate, which, how- 
ever, was careful to preserve the substantive remnants of the various 
special laws until they were fudy absorbed by the modern institutional 
state." 

The conditions under which the prince, magistrate, or official ap- 
peared legitimated to create or influence the common taw and under 
which be had the actual power to do so, the scope to which this power 
extended in different geographic areas or legal spheres, as well as the 
motives which underlay this intervention, will be discussed later in our 
treatment of the forms of domination. In reality, that power assumed 
many forms-and correspondingly produced many different results. Gen- 
erally, one of the earliest creations of the princely power to protect the 
peace (Banngewalt) was a rational penal law. 7 Military considerations 
as well as general interest in "law and order" demanded regulation in 
this particular sphere. Next to religious lynch-law, the power of the 
princely office has indeed been the second main souice of a separate 
'criminal procedure." Often priestly influences, too. were direct!/ oper^ 
ative in this development, as, In Christendom, because of its interest in 
the extirpation of blood-vengeance and the duel. In Russia, the knyaz 
(prince), who in earlier times had presumed only to a mere arbitrator's 
function, was immediately after Christianization induced by the bishops 
to create a casuistic penal law; the very concept of "penalty Qpoiiazha) 
makes its appearance only at that time. 8 Siroilaiiy in the Occident, 
in Islam, and certainly in india, the rational tendencies of the priest- 
hood have played a part. 

It appears plausible- that the establishment of those detailed tariffs 
of wergilt and fines which appear in all the old legal enactments was 
decisively due to the influence of the princes. Once typical conditions 
of composition had been developed, it seems that dial; system which 
Binding has shown to have existed in German law," was a universal 
phenomenon: in it we find two sets of werglt, viz,, one of considerable 
magnitude for acts of manslaughter and other vengeance-reqniring in- 
juries, and a much smaller one indiscriminately applicable to all other 



vi ] - Imperium and the Codifications 841 

kinds of injury. It was probably under princely influence that there 
developed those almost grotesque tariffs covering every conceivable type 
of misdeed, which enabled everyone to reflect in advance whether the 
commission of a certain crime or the institution of a lawsuit would 
"pay." 1 '' The marked preponderance of a purely economic attitude to- 
ward crime and punishment has, as a matter of ■ fact, been common to 
peasant strata in all ages. However, the formalism expressed in the fixed 
measurement of all amends is a result of the rerusal to submit to the 
lord's arbitrariness. Not until the administration of justice had become 
thoroughly patriarchal did this rigorous formalism yield to a more elastic 
and sometimes completely arbitrary determination of punishment. 

In the sphere of private law, which could never he as accessible to 
the peace power (Banngewalt) of the prince in the same way as crimi- 
nal justice — regarded as a means of guaranteeing a formal ; order and 
security — the intervention of the imperium occurred everywhere, much 
later and with varying results and in varying forms. In some places 
a v princely or magisterial law arose, which, in distinction to the com- 
mon law, made explicit reference to its particular source of origin, 
as, for instance, the Roman ius honorarium of the praetorian edict, the 
"writ" law of the English kings, or the "equity" of the English chan- 
cellors. This law was created by the special "magisterial power" (Ge- 
richtshann) of the official charged with the administration of justice; 
he found complacent cooperation on the part of the legal honoratiores, 
who, as lawyers, such as the Roman jurisconsults or the English bar- 
risters, were eager to comply with the requests of their clients. By virtue 
of this power the official might be entitled, as the praetor was, to issue 
binding instructions to the judges or, as it was finally decided in Eng*. 
land by James I himself in the conflict between the Lord Chancellor, 
Francis Bacon, and the common law courts, to issue injunctions to the 
parties; 11 or to see to it that, by voluntary submission or through com- 
.pulsion, a case be brought into the magistrate's own court, as, for in- 
stance, in England into the Royal Courts or later into the Chancery." 

In this way die officials created new remedies, which in the long 
run came to a large extent to supersede the general law (ius civile, 
common law.) The common element in these bureaucratic innovations 
in substantive law is that they all had their start in the desire for a 
more rational procedure, which emanated from groups engaging in 
rational economic activity, i.e., bourgeois strata. The very ancient inter- 
dicta trial Qnterdiktionsprozessy and the acttones in factum would 
seem to prove that the Roman praetor had acquired his predominant 
position in procedure, i.e., his power of instructing the jurors, quite 
some time before the lex Aebutia™ But as a glance at the substantive 



842. ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

content of the Edict shows, the formulary procedure was created by 
the commercial needs of the bourgeoisie as the intensity of commerce 
increased. The same needs resulted in the elimination of certain orig- 
inally magically conditioned formalities. In England and France, the 
greatest attraction of the royal courts was, as it had been in Rome, the 
emancipation from verbal formalism. In many parts of the West, the 
adverse party could be compelled to testify under oath. In England, 
the cumbersome formalities of the summons were also dispensed with; 
the king would issue his summons "sub poena"; also the king's court 
used the jury rather than judicial combat and other irrational methods 
of proof which were intolerable to the bourgeoisie. 

In English "Equity," innovations of substantive law did not, to any 
considerable extent, occur before the seventeenth century, 15 Louis IX, 1 * 
like Henry II and his "Successors, especially Edward III, created above 
everything else a relatively rational system of evidence and eliminated 
the remnants of the formalism of magical or folk justice origin. 17 The 
"Equity" of the English Chancellor in turn eliminated from its sphere 
what had been the great achievement of the Royal Courts — the jury. 
In the dualism of "Law" and "Equity" which still obtains today in Eng- 
land and in the United States and frequently allows the plaintiff to 
choose between competing remedies, the formal distinction still consists 
in the fact that at Law cases are tried with, and in Equity without, a 

J ur y- 

The technical instruments of magisterial law are on the whole 
purely empirical and formalistic in character; particularly frequent, for 
instance, is the use of fictions, which can be found already in the Prank- 
ish capitularies. 18 This feature is, of course, to be expected in the case 
of a legal system which grows directly out of legal practice. In conse- 
quence, the technical character of the law remains unchanged. Indeed, 
its formalism has often been intensified, although, as the term "Equity" 
indicates, ideological postulates could also provide the stimulus to inter- 
vention. Indeed, the case is one in which the itnperium had to compete 
with a system of law the legitimacy of which it had to accept as invio- 
lable and the general basi? of which it could not eliminate. To greater 
lengths it could go only where, as in the case, of verbal formalism and 
irrationality of proof, the imperium was accommodating urgent de- 
mands of strong pressure groups. 

The power of the imperium is heightened where the existing law 
can be changed directly by means of princely decrees of equal validity 
with that of the common law, as we find it, for instance, in the case of 
the Frankish capitula tegibus addenda, the ordinances and decrees of the 
signories of the Italian cities, or the decrees of the late Roman princi- 



vi ] _ Imperium and- the Codifications 843 

pate, which had the same validity as leges. In the early Empire, it will 
be remembered, imperial decrees were binding only upon the emperor's 
officials." On the whole, orders of this kind were, of course, not issued 
without the assent of the honoratiores (Senate, assembly of imperial 
officials) or even of the representatives of the moot community, The 
attitude also persisted for a long time, at least among the Franks, 
that such decrees could not create real "law," and it constituted a 
considerable obstacle to princely legislation. 20 Between this case and 
the factually omnipotent manipulation of the law by Western military 
dictators or the manipulation of the law by Oriental patrimonial princes 
we can find numerous intermediate situations. Legislation by patri- 
monial monarch s, too, would normally respect tradition to a considerable 
extent. But the more it succeeded in eliminating the administration of 
justice by the moot community, as it generally tended to do, the more 
frequently it developed its own specifically formal qualities and the 
better it was able to impress them upon the legal system. These qualities 
could be of one or the other of two quite different types, corresponding 
to the different political conditions of existence of the power of the 
patrimonial monarch. 

One of the forms in which princely lawmaking took place was for 
the prince, whose own political power was regarded as a legitimately ac- 
quired right just as any other property right, to give up some parcel of 
this fullness of power by granting to some one or more of his officials or 
subjects, or to foreign merchants, or any other person or persons some 
special rights (privileges), which were then to be respected by the 
princely administration of justice. To the extent that this was the case, 
law and right, "norms" and "claims,' coincided in such a way that, 
if thought out consistently, the entire legal order would appear as a 
mere bundle of assorted privileges. The other form of princely law- 
making occurred in just the opposite form: the prince would not grant 
to anyone any claims which would be binding upon him or his judiciary. 
In that case, there are again two possibilities. The prince gives com- 
mands from case to case according to his entirely free discretion; to 
that extent there is no place for the concepts of either "law" or "right." 
Or the prince would issue "regulations" containing general directives 
for his officials. Such regulations mean that the officials are directed, 
until the receipt of further directives, to order the concerns of the sub- 
jects and to settle their conflicts in the manner indicated. In that situa- 
tion the prospect of an individual to obtain a certain decision in his 
favor is not a "right" of his but rather a factual "reflex," a by-product 
of the regulation, which is not legally guaranteed to him. It is the sa'me 
as in the case where a father complies with some wishes of his child 



844 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

without thinking, however, that he thus binds himself to any formal 
juristic principles or fixed procedural forms- As a matter of fact, the 
extreme consequence of a "patriarchal" administration of justice by the 
parens patriae is but a transposition of the intrafamilial mode of set- 
ding conflicts into the political body. The whole legal system would 
be dissolved into "administration" if this system were ever carried to its 
logical consequences. 21 

We shall designate the first of these two forms as the "estate" (stand- 
ische) type of patrimonial princely justice and the second as the "patri- 
archal." In the estate type of judicial administration and lawmaking, 
the legal order is rigorously fcr^i hut thoroughly concrete and in this 
sense irrational. Only an "empirical" type of legal interpretation can 
develop. All "administration" is negotiation, bargaining, and contracting 
about "privileges," the content of which must then be fixed. It thus 
operates like judicial procedure and is not fomally distinct from the 
administration of justice. This was the way of the administrative pro- 
ceedings of the English Parliament and of the great old Royal Councils, 
jvhich were all originally administrative and judicial bodies at the same 
time. The most important and the only fully developed instance of 
"estate" patrimonialism is the political body of the medieval Occident. 

In the purely "patriarchal" administration of the law, the law is, on 
the contrary, thoroughly informal, as far as one may speak of "law" at 
all under such a system of pure "regulations." Judicial administration 
aims at the substantive truth and thus sweeps away formal rules of evi- 
*dence. Hence it would come into conflict quite frequently with the old 
magical procedures, but the relation between the secular and sacred pro-, 
cedures could assume various forms. In Africa the plaintiff might have 
a chance to appeal from the prince's judgment to the ordeal or to the 
ecstatic judgment vision of the fetish-priests (oghanghas^), the agents 
of the old sacral trial. On the other hand, the rigorously patriarchal 
princely justice negates the formal guaranty of rights and the principle 
of strict adversary procedure in favor of the attempt to setde an interest 
conflict objectively "right" and equitably. 

Although the patriarchal system of justice can well he rational in the 
sense of adherence to fixed principles, it is not so in the sense of a logi- 
cal rationality of its modes of thought but rather in the sense of the 
pursuit of substantive principles of social justice of political, welfare- 
utilitarian, or ethical content. Again law and administration are identi- 
cal, but not in the sense that all administration would assume the form 
of adjudication but rather in the reverse sense that all adjudication takes 
the character of administration. The prince's administrative officials are 
at the same time judges, and the prince himself, intervening at will into 



vi ] Imperium and the Codifications " 8 4 5 

the administration of justice in the form of "cabinet justice," decides 
according to his free discretion in the light of considerations of equity, 
expediency, or politics. He treats the grant of legal remedies to a large 
extent as a free gift of grace or a privilege to be accorded from case to 
case, determines its conditions and forms, and eliminates the irrational 
forms and means of proof in favor of a free official search for the truth. 
The ideal example of this type of rational administration of justice is 
the "kadi-justice" of the "Solomonian" judgment as it was practiced 
by the hero of that legend — and by Sancho Panza when he happened 
to be governor. 22 All patrimonial princely justice has an inherent tend- 
ency to move in this direction. The "writs" of the English kings were 
obtained by applying to the king's boundless grace. The actiones in 
factum allow us to guess how far even the Roman magistrates originally 
were allowed to go in the free grant or denial' of actions: (dcnegatio 
actionis). English . magisterial justice of the post-medieval type, too, 
makes its appearance as "equity." The reforms of Louis IX in France were 
of a thoroughly patriarchal character. Oriental, like Indian, justice, 
,in so far as it is not theocratic, is essential patriarchal. Chinese admin- 
istration of justice constitutes a type of patriarchal obliteration of the 
line between justice and administration. Decrees of the emperor, both 
educative and commanding in content, intervene generally or in con- 
crete cases. The finding of the judgment, to the extent that it is not 
magically conditioned, is oriented towards substantive rather than 
formal standards. When measured by formal or economic "expecta- 
tions," it is thus a strongly irrational and concrete type of fireside 
equity. This type of intervention of the imperium into the formation 
of law and the administration of justice occurs on quite different "cul- 
tural levels"; it is the result not of economic but, primarily, political 
conditions. Thus in Africa, wherever the power of the chief has grown 
strong because of either its combination with the magical priesthood 
or the significance of war or through a trade monopoly, the old formal- 
istic and magical procedures and the exclusive rule of tradition have 
often completely disappeared. In their place has arisen a procedure with 
public summons in the name of the prince (often through Anschwor- 
ung 13 of the defendant), public enforcement of the judgment and 
rational proof by witnesses in place of the ordeal; there have also de- 
veloped practices of law enactment either exclusively by the prince 
alone, as among the Ashantis or, as in South Guinea, by him with the 
acclamation of the community. 24 But often the prince or chief or his 
judge decide entirely according to their own discretion and sense of 
equity, without any formally binding rules whatsoever. This situation 
can be found in culture areas so different from each other as those 



8 4 S ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIU 

of the Basuto, the Baralong, of Dahomey, the realm of Muata Cazembe, 
or Morocco. iS The only restraint consists in the apprehension of losing 
the throne because of an excessively flagrant breach of the law, and 
especially a breach of those traditional norms which are regarded as 
sacred and on which the rulers' own legitimacy rests. This antiformal 
substantive character of patriarchal administration reaches its high 
point when the (secular or priestly) prince places himself at the service 
of positive religious interests and, more particularly, when he propa- 
gates a religiosity which postulates certain ethical attitudes rather than 
the mere performance of rituals. All the antiformal tendencies of the- 
ocracy, which in this case are freed eveh from the otherwise effective 
restraints of ritualistic and, on that account, formal sacred norms, com- 
bine with formlessness of a patriarchal welfare policy, which aims 
at the nurturing of right attitudes/and the administration of which ap- 
proximates the character of pastoral care of souls. The boundaries be- 
tween law and ethics are then torn down just as those between legal 
coercion and paternal monition, and between legislative motives and 
legal techniques. The closest approach to this "patriarchal" type is 
presented by the edicts of the Buddhist King Asoka.* 6 As a rule, how- 
ever, a combination of estate and patriarchal elements, together with 
the formal procedures of folk justice, prevails in the patrimonial princely 
system of justice. The extent to which one or the other of these factors 
preponderates depends— as we shall see in our discussion of "domina- 
tion" — essen nally on political conditions and power relations. In the 
West, in addition to these, the (originally politically conditioned) tra- 
dition of moot justice, which, as a matter of principle, denied the king the 
position of judgment finder, was of significance for the preponderance of 
"estate" forms in the administration of justice. 

The growth to preeminence of rational-formalistic elements at the 
expense of the typical features of patrimonial law, as it occurred in the 
modem Western world, arose from the immanent needs of patrimonial 
monarchical administration, especially with respect to the elimination 
of the supremacy of estate privileges and the "estate" character of the 
legal and administrative system in general. In this respect the needs 
of those interested in increased rationality, which me^ns in this case, 
in growing predominance of formal legal equality and objective formal 
norms, coincide with the power interests of the prince as against the 
holders of privilege. Both interests are served simultaneously by the 
substitution of "regie mentation" for "privilege." 

No such coincidence existed, however, where the demand was, first, 
for limitations of the arbitrary patriarchal discretion by fixed rules and, 
second, for the recognition of definite claims of the subjects against 



vi } Imperium and the Codifications 847 

the administration of justice or, in other words, for guaranteed "rights." 
As we know, these two elements are not identical. A method of settling 
disputes which proceeds by means of fixed administrative regulations 
by no means signifies the existence of guaranteed "rights"; but the 
latter, i.e., the existence not only of objective and fixed norms but of 
'Taw" in the strict sense is, at least in the sphere of private law, the 
one sure guaranty of adherence to objective norms". This guaranty was 
sought after by economic interest groups which the princes wished to 
favor and tie to themselves because they served their fiscal and political 
power interests. Most prominent among these were the bourgeois inter- 
ests, which had to demand an unambiguous and clear legal system, 
that would be free of irrational administrative arbitrariness as well as 
of irrational disturbance by concrete privileges, that would also offer 
firm guaranties of the legally binding character of contracts, and that, 
in consequence of all these features, would function in a calculable 
way. The alliance of monarchical and bourgeois interests was, therefore, 
one of the major factors' which led towards formal legal rationalization. 
Alliance must not be understood, however, in the sense that a direct 
"cooperation" of these two powers would always have been necessary. 
The utilitarian rationalism characteristic of every sort of bureaucratic 
administration tended already by itself in the direction of the private 
economic rationalism of the bourgeois strata. The fiscal interests of the 
prince also drove him to prepare the way for capitalistic interests to a 
far greater extent than was actually demanded at the time by those 
interests themselves. On the other band, the guaranty of rights which 
would be independent of the discretion of the prince and his officials 
was by no means a product of the tendencies genuinely immanent 
in bureaucracy. Moreover, it was not within the unqualified interest 
of the capitalist groups either. The very contrary was the case with 
respect to those essentially politically oriented forms of capitalism which 
we shall have occasion to contrast, as a special type of capitalism, with 
'its specifically modem "bourgeois" type. Even early bourgeois capitalism 
itself showed this interest in guaranteed rights either not at all or to a 
slight extent only, and sometimes it pursued even the very opposite end. 
The position not only of the great colonial and commercial monopolists 
but also of the monopolistic large-scale entrepreneurs of the mercantilist 
manufacturing period regularly rested upon princely privileges which 
often enough infringed upon the prevailing common law, i.e., in this 
instance, the guild law. This latter fact called forth the violent op- 
position of the bourgeois middle class and thus induced the capitalists 
to pay for their privileged business opportunities by the precariousness 
of their legal position vis-a-vis the prince. The politically and monopo- 



848 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

listically oriented capitalism, and even the early mercantilists capitalism, 
thus came to have an interest in the creation and maintenance of the 
patriarchal princely power as against the estates and against the bour- 
geois craftsmen, as happened in the time of the Stuarts, as has been 
happening today, and as is likely to happen even more often in broad 
areas of economic life." In spite of all this, the intrusion of im-perium, 
especially of the- monarch, into the legal system, has contributed 
to the unification and systematization of the law and thus to "codifica- 
tion." The stronger and more stable the monarch's power was, the more 
it tended in that direction. The prince desired "order" as well as "unity" 
and cohesion of his realm. These aims emerged not only from technical 
requirements of administration but also from the personal interests of 
his officials: legal uniformity renders possible employment of every offi- 
cial throughout the entire area of the realm, in which case career 
chances are, of course, better than where every official is bound to the 
area of his origin by his ignorance of the laws of any other part of 
the realm. While thus the bourgeois classes seek after "certainty" in the 
administration of justice, officialdom is generally interested in "clarity" 
and "orderliness" of the law. 



2. The Driving Forces Behind Codification 

Although the interests of officials, bourgeois business interests, and 
monarchical interests in fiscal and administrative ends have been the ■ 
usual factors promoting codification, they have not been the only ones. 
Politically dominated strata other than the bourgeoisie can be interested 
in the unambiguous fixation of the law, and those ruling powers to 
whom their demands are directed and which yield to them, voluntarily 
or under pressure, have not always been monarchs. 

Systematic ccdification of the law can be the product of a conscious 
and universal reorientation of legal life, such as becomes necessary as a 
result of external political innovations, or of a compromise between 
status groups or classes aiming at the internal social unification of the 
political body, or it may result from a combination of both these cir- 
cumstances. The codification may thus be occasioned by the planful 
establishment of a community (Verband^) in a new area, as, for instance, 
in the case of the leges datae of the colonies of Antiquity;** or by the 
formation of a new political community which in certain respects wishes 
to subject itself to a unified legal system, as, for instance, the Israelite 
confederation; 28 or by the conclusion of revolution through the compro- 
mise of status groups or classes, as the Twelve Tables are said to have 



vi ] Imperium and the Codifications 849 

been. 30 The systematic recording of the law may also occur in the in- 
terest of legal security following a social conflict. In such situations the 
parties interested in the recording of the law are naturally those which 
had hitherto suffered most from the lack of an unambiguously fixed 
and generally accessible set of norms, i.e., of norms which v.oula allow 
cheeking up on the administration of justice. In Antiquity these groups 
were typically the peasantry and the bourgeoisie as against a system 
of administration of justice carried on, or dominated by, aristocratic 
notables or priests. In such cases, the systematic "recording" of the 
law was apt to contain a large dose of new law and it was thus quite 
regularly imposed as lex data through prophets or prophet-like fiduciaries 
(Aisymnetat) on the basis of revelation or oracle.* 1 The interests to be 
secured were likely to be understood quite clearly by the participants. 
The possible modes of setdement, too, were likely so to have been clari- 
fied by previous discussion and agitation that they were ripe for the 
prophet's or the aisymnete's fiat. For the rest, the interested parties were 
more concerned with a formal arfd clear settlement of the points actually 
in issue than with a systematic law. The legal normation thus used to 
be expressed in the epigrammatic and proverb-like brevity which is 
characteristic of oracles, customals, or resfonsa of jurisconsults. The 
very fact that we find this style in the Twelve Tables should suffice to 
dispel the doubts as to their origin in one single act of legislation. Of 
the same kind is the style of the Decalogue and the Book of the Cove- 
nant. In both complexes of commands and prohibitions, the Roman and 
the Jewish, this style is indicative of their truly law-prophetic and 
aisymnetic origin. Both also equally present the characteristic feature 
of combining civil and religious commandments. The Twelve Tables 
anathematize (sacer e$to~) the son who strikes his father and the patron 
who does not keep faith with his client. No legal consequences were pro- 
vided in either case. Obviously the commandments had become neces- 
sary because domestic discipline and piety had fallen into decay. The 
Jewish and Roman codifications differ, however, in so far as in the 
Decalogue and the Book of the Covenant the religious content is sys- 
tematized while the Roman lex contained but single prescriptions; the 
bases of religious law were fixed and there was no new religious reve- 
lation. It is a quite different and a secondary question whether the twelve 
"tables," on which the law of the city of Rome, as given by the legal 
prophets, was said to have been recorded and which are reported to 
have been destroyed in the conflagration of the Gallic conquest, were 
any more "historical" than the two tables of the Mosaic law. But the 
rejection of the tradition as to the age and unity of the Roman legisla- 
tion is required neither by substantive nor linguistic considerations; 



8 5 O ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. VIII 

indeed, the latter are particularly irrelevant in view of the purely oral 
nature of the transmission of the tradition. *Ine opinion that die Twelve 
Tables were but a collection of legal proverbs or of resfonsa of juris- 
consults is contradicted by internal evidence. The norms are general 
ones and of a fairly abstract character; a good many of them are clearly 
and consciously aiming in a definite direction and a good many others 
clearly appear as compromises between different status groups. It is 
quite improbable .that a mere record of the practice of jurisconsults or 
the literary product of a Sextos Aelius Paetus Catus" or some other 
collector of cases could have attained such an authority in a city and in 
an age permeated with conflicts between rationally conceived interests. 
Also the analogy with other aisymnetic laws is too obvious. A "sys- 
tematic" codification, to be true, is produced by that situation which 
is typical for aisymnetic legislation and the needs to be satisfied by it 
only in a purely formal sense. A "systematic" codification was consti- 
tuted neither for ethics by the Decalogue nor for the regulation of busi- 
ness activities by the Twelve Tables or the Book of the Covenant. It 
was only through the work of the practicing lawyers that system and 
legal "ratio" were introduced, and even then but to a limited extent 
Greater in this respect were the effects of the needs of legal education, 
but the full extent of systematization and rationalization resulted from 
the work of monarchical officials. They are the true systematic codifiers, 
since they have a special interest in a "comprehensive" system as such. 
For this reason monarchical codifications commonly are so much more 
rational with respect to systematics than even the most comprehensive, 
aisymnetic or prophetic promulgations. 

Monarchical codification has thus been one way to systematise a 
law. The only other one has been didactic literary activity, especially 
the creation of socalled "books of law," which every now and then 
have acquired canonical prestige and have thus come to dominate 
legal practice almost with statutory force.* 3 In both cases, however, the 
systematic recordation of the law is hardly ever more than a compilation 
of the existing law meant to eliminate doubts and controversies. A 
good many collections of laws and regulations created at the behest of 
patrimonial monarchs and appearing externally as codes, as, for in- 
stance, the official Chinese compilation,** have, in spite of a certain 
element of "systematic" classification, litde to do with real codification; 
they are nothing but mechanical arrangements. Other "codifications" 
have sought no more than to arrange the prevailing law in an orderly 
and systematic fashion. The Lex Salica and most of the other leges 
barharorum were such compilations for the practice of the moot com- 
munities.* 5 The highly influential Assize of Jerusalem** embodied the 



vi ] _ Imperium and the Codifications 851 

precedents on commercial usages: the Siete Partidas and similar "codi- 
fications" as far back as the leges Romanae collected those parts of the 
Roman law which had"- remained alive. 37 But even this kind of compila- 
tion necessarily implied a certain measure of systematization and, in 
this sense, rationalization of the legal data, and the groups that are 
interested in bringing about such a compilation are the same as those 
interested in a genuine codification, i.e., in a systematic revision of the 
substantive content of the existing law. The two cannot be sharply 
distinguished from one another. In that 'legal security" which results 
from codification a strong political interest commonly exists even apart 
from all other considerations. Codification has thus always been near 
at hand in cases of creation of a new political entity. We thus find it 
at the establishment of the Mongolian Empire by Genghis Khan" 
where the collection of the Yasa constituted an incipient codification, 
as well as in many similar cases down to the foundation of the Napole- 
onic Empire. Apparently against all historical order, an epoch of codi- 
fication thus occurred in the West at the very beginning of its history 
in the leges of the Germanic kingdoms newly created on Roman soil. 
The need to pacify these ethnically heterogeneous political structures 
necessarily required the determination of the law actually existing and 
the upheaval of the military conquest facilitated the formal radicalism 
with which the task was carried out. 

The interest in the precise functioning of the administrative ma- 
chine through the establishment of legal security, alongside the prestige- 
needs of the monarch, especially in the case of Justinian, were die 
motives for the compilations of the late Roman empire down to the 
Code of Justianian, as well as of the monarchical Roman-law codifica- 
tions of the Middle Ages of the kind of the Spanish Siete Partidas. In 
all these cases it is unlikely that private economic interests played any 
direct role. On the other hand, the oldest and relatively completely 
known code, which is in this respect the most unique of all those which 
have come down to us, i.e., the Code of Hammurabi," allows us to 
infer with some reasonable degree of certainty that there existed rela- 
tively strong commerical interests and that the lung wished to strengthen 
the legal security of commerce for his own political and fiscal purposes. 
The situation is typically that of a city kingdom. The surviving rem- 
nants of earlier enactments allow us to infer that the status and class 
conflicts which were typical of the ancient city were at work then too, 
exept that, due to the difference in political structure, they led to a 
different result. It may be said of Hammurabi's Code that, insofar 'as 
the evidence of older records is available, it did not establish any really 
new law but rather codified the existing law and that it was not the first 



8 5 2. ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ck. VIII 

of its kind.' As in most other monarchical codifications, the political 
interest in the unification of the legal system as such within the entire 
realm played a dominant role, in addition to the economic and religious 
interests which are so clearly apparent in the intensive regulation of 
familial obligations, especially, the obligation of filial piety, which there 
as everywhere else were lying close to the heart of the patriarchal 
monarch. For the same reasons which we have already come to know, 
most of the other monarchical codifications, too, were aimed at overcom- 
ing the old principle under which special laws were to prevail over the 
general law of the land. These same motives were even more influential 
in bringing about the increasing frequency of monarchical codifications 
in the era of the rise of the bureaucratic state.* 1 They, too, brought 
innovations only to a limited extent. At least in Central and Wes#»m 
Europe, they presupposed the validity of the Roman and Canon law as 
a universal law. Roman law, as subsidiary law, recognized the prior 
claims of the local and special laws, and for Canon law the actual situa- 
tion was not much different although it claimed for itself absolute and 
universal effect. 

None of the monarchical codifications can match the significance 
of the revolution in legal thought and in the actual substantive law 
which was brought about by the reception of Roman law." This is not 
the place to trace the history; all we can do is to present a few observa- 
tions. 



3 . The Reception of Roman Law and the Development 
of Modern Legal Logic 

In so far as the emperors, especially Frederick I [1152-1190], and 
later the territorial princes participated in it, the reception was stimulated 
essentially by the sovereign position of the monarch as it appears in 
Justinian's codification. For the rest, the question is still unresolved and 
perhaps not fully resolvable whether and how far economic interests 
were behind the reception and to what extent they were promoted by 
it; it is an equally open question as to what was the cause of the pre- 
eminence of the learned, i.e., university-trained, judges who were the 
bearers of Romanism as well as of the patrimonial-princely procedures. 
It is above all unsealed whether it was essentially the interested parties 
(JKechtsinteressenten) who, through arbitration agreements, resorted to 
the legally trained administrative officials of the princes instead of the 
courts, thus establishing decision "ex officio" instead of decision "ex 



vi ] - Imperium and the Codifications 8 5 3 

lege," and starving out the ancient courts (cf. Stolzel), or whether, as 
Rosenthal has attempted to show in detail,* 3 the courts themselves were, 
as a result of the initiative of the princes, increasingly staffed with legally 
trained "assessors" rather than with lay honoratiores. 

Whatever the answers may be to these questions, this much seems to 
be clear: since, as the sources indicate, even those status groups which 
viewed Roman law with distrust, in general did not object to the pres- 
ence on the bench of some "doctors," but only opposed their preponder- 
ance and especially the appointment of foreigners, it is obvious that 
the advance of the trained jurists was caused by intrinsic needs of the 
administration of justice, especially by the need to rationalize legal 
procedure, and hy the fact that the jurists possessed that special capacity 
which results from specialized professional training, viz., the capacity to 
state clearly and unambiguously the legal issue involved in a complicated 
situation. To this extent the professional interests of the legal practi- 
tioners coincided with those of the private groups interested in the law, 
both bourgeois and nobje. Yet, in the reception of substantive Roman 
law the "most modern," i.e., the bourgeois groups, were not interested 
at all; their needs were served much better by the institutions of the 
medieval law merchant and the urban real estate law. It was only the 
general formal qualities of Roman law which, with the inevitable growth 
of the character of the practice of law as a profession, brought it to 
supremacy, except where there existed already, as in England, a na- 
tional system of legal training protected by powerful interests. These 
formal qualities account also for the fact that the patrimonial monarchi- 
cal justice of the West did not take the path, as it did elsewhere, of 
turning into a patriarchal administration of justice in accordance with 
standards of substantive welfare and equity. A very important factor in 
this respect was the formalistic training of the lawyers, on whom the 
princes were dependent as their officials, and which was largely respon- 
sible for the fact that in the West the administration of justice acquired 
that juristically formal character which is peculiar to it in contrast to 
most other systems of patrimonial administration of justice. The respect 
for Roman law and Romanist law training also dominated all the monar- 
chical codifications of the early modern age, which were all the products 
of the rationalism of university-trained lawyers. 

The reception of the Roman law created a new stratum of legal 
honoratiores, the legal scholars who, on the basis of an education in 
legal literature, had graduated from a university with a doctor's diploma. 
Indeed, this new stratum was the very basis of the strength of the Roman 
law. Its significance for the formal qualities of the law was far-reaching. 



854 ECONOMY AND LAW (SOCIOLOGY OP LAW) [ Cfc. VIII 

Already during the Roman Empire, Roman law had begun to be the 
object of a purely literary activity, which represented something quite 
different from the production of "law books" by the medieval legal 
honoratiores of Germany or France or of elementary treatises by English 
lawyers, however important those books may have been in their own 
ways. Under the influence of the philosophical training, superficial 
though it may have been, of the ancient lawyers, the significance of the 
purely logical elements in legal thinking began to increase. Indeed, it 
came to be especially important for the actual legal practice as there was 
no sacred law with any binding force and as the mind was unencum- 
bered by any theological or substantive ethical concerns which might 
have pushed it in the direction of a purely speculative casuistry. As a 
matter of. fact, incipient tendencies toward the view that what the 
lawyer cannot "think" or "construe" cannot be admitted as having legal 
reality could be already found among the Roman jurists. In this context 
also belong those numerous purely logical propositions as: quod untver- 
sitati debetur singulis non debetur 44 or quod ab initio vitiosum est, non 
potest tractu temporis convalescere. 4 * Only, these maxims were but un- 
systematic occasional productions of abstract legal logic, added to sup- 
port some concretely motivated individual decisions and totally dis- 
regarded in others, even by the same jurist. The essentially inductive, 
empirical character of legal thought was barely affected, or not at all. 
The situation was quite different in the [medieval] reception of Ro- 
man law. First of all, it strengthened that tendency of the legal institu- 
tions themselves to become more and more abstract, which had begun 
already with the transformation of the Roman ins civile into the law 
of the Empire. As Ehrlich has properly emphasized," in order for them 
to be received at all, the Roman legal institutions had to be cleansed of 
all remnants of national contextual association and to be elevated into 
the sphere of the logically abstract; and Roman law itself had to be ab 
solutized as the very embodiment of right reason. The six centuries of 
Civil Law jurisprudence have produced exactly this result. At the same 
time, the modes of legal thought were turned more and more in the 
direction of formal logic. The occasional brilliant apercus of the Roman 
jurists of the kind just noted were tom out of the context of the concrete 
cases of the Pandects and were raised to the level of ultimate legal prin- 
ciples from which deductive arguments were to be derived. Now there 
was created what the Roman jurists had so obviously lacked, viz., the 
purely systematic categories, such as "legal transaction" or "declaration 
of intention/'" for which ancient jurisprudence did not even have uni- 
form names. Above all, the proposition mat what the jurist cannot con- 



vi ] Imperium and the Codifications 855 

ceive has no legal existence now acquired practical significance. Among 
the ancient jurists, as a result of the historically conditioned analytical 
nature of Roman legal thought, properly "constructive" ability, even 
though it was not entirely absent, was only of small significance. Now 
when this law was transposed into entirely strange fact situations, un- 
known in Antiquity, the task of "construing" the situation in a logically 
impeccable way became almost the exclusive task. In this way that con- 
ception of law which still prevails today and which sees in law a logically 
consistent and gapless complex of "norms" waiting to be "applied" be- 
came the decisive conception for legal thought 4 * Practical needs, like 
those of the bourgeoisie, for a "calculable" law, which were decisive in 
the tendency towards a formal law as such, did not play any consider- 
able role in this particular process. As experience shows, this need may 
be gratified quite as well, and often better, by a formal, empirical 
case law. The consequences of the purely logical construction often bear 
very irrational or even unforeseen relations to the expectations of the 
commercial interests. It is this very fact which has given rise to the 
frequently made charge that the purely logical law is "remote from life" 
(lebensfremd^. This logical systematization of the law has been the 
consequence of the intrinsic intellectual needs of the legal theorists and 
their disciples, the doctors, i.e<, of a typical aristocracy of legal literati. 
In troublesome cases, opinions rendered by law school faculties were the 
ultimate authority on the Continent.** The university-trained judge and 
notary, together with the university-trained advocate, were the typical ' 
legal honoratiores. 

Roman law triumphed wherever there did not exist a legal profession 
with a nation-wide organization. With the exception of England, north- 
ern France, and Scandinavia, it conquered all of Europe from Spain to 
Scotland and Russia. In Italy, at least at the beginning, the notaries 
were the chief agents of the movement, while in the North its main 
agents were the learned judges, with the monarchs standing behind 
jhem almost everywhere. No Western legal system, not even that of 
England, has kept itself entirely free of these influences. Their traces 
show up in the systematic structure of English law, in many of its in- 
stitutions, and in the very definitions of the sources of the Common Law: 
judicial precedent and "legal principle," no matter what the difference of 
inner structure. 1 ' The true home of the Roman law remained, of 
course, in Italy, especially under the influence of the Genoese and other 
learned courts (rotoe), whose elegant and constructive decisions were 
collected and printed in Germany m the sixteenth century and thus 
helped to bring Germany under the influence of the Reichskammer- 
gerichf 1 and the learned courts of the territories. 



856 ECONOMY AND LAW (SOCIOLOGY OF LAw) [Ch. VIII 

4. Types of Patrimonial Codification 

It was not until the era of fully developed "enlightened despotism" 
that, beginning with the eighteenth century, conscious efforts were made 
to transcend the specifically formal legal logic of the Civil Law and its 
academic legal honoratiores, which indeed constituted a unique phe- 
nomenon in the world. The decisive role was played, first of all, by the 
general rationalism developed by bureaucracy in line with its growing 
self-confidence and its naive belief of "knowing better." Political au- 
thority with its patriarchal core assumed the form of the welfare state 
and proceeded without regard for the concrete desires of the groups in- 
terested in the law and the formalism of the trained legal mind. It 
would indeed have liked nothing better than to suppress completely 
this kind of thought. The ideal was to deprive the law of its specialist 
character and to formulate it in a way that would not only instruct 
the officials but, above all, would enlighten the subjects about their 
rights and duties exhaustively and without outside aid. This desire for 
an administration of justice which would strive for substantive justice 
unaffected by juristic hairsplitting and formalism is, as we have seen, 
characteristic of every monarchical patriarchalism. But it has not always 
been able to proceed in this direction without encountering obstacles. 
The Justinian codifiers could not consider "laymen** as the" students and' 
interpreters of their work when they systematized the sublimated law 
of the jurists. They simply could not eliminate the need for specialized 
legal training in the face of the achievements of the classical jurists and 
their authority as it was officially acknowledged by the Citation Law.*** 
They could do no more than put forward their work as the sole authori- 
tative collection of citations to serve the educational needs of the students 
and they had thus to provide for such instruction a textbook presented 
in the form of a law, i.e., the Institutes.** 

Patriarchalism could act more freely in that classical monument of 
the modem "welfare state," the Prussian AUgemeine Landrecht.** Jn 
marked contrast to the universe of "rights" of the "Estate" polity, in this 
Code the "law" is primarily a universe of duties. The universality 
of one's "darndest debt and duty" (yerdammte Pflicht und SchuWgkeit) 
is the main characteristic of the legal order, and its most notable 
feature is a systematic rationalism, not of a formal but of that sub- 
stantive kind which always is typical of such cases. Where "reason 
wants to reign" all law which has for its existence no reason other than 
the fact that it -exists, such as, especially, customary law, must disappear. 
All modern codifications, down to the first draft of the German Civil 
Code," have thus been at war with it. Those legal practices which do 



vt ] Imperium and the Codifications 857 

not rest upon the explicit provisions of the legislator, just as every 
traditional mode of legal interpretation, are regarded by the rationalistic 
legislator as inferior sources of law to be tolerated only so long as the 
statute has not yet spoken. Codification was thus intended to be "ex- 
haustive" and was believed able to be so. Hence, in order to prevent 
all creation df new law by the hated jurists, the Prussian judge was 
directed, in cases of doubt, to turn to a commission specially created 
for the purpose. Hie effects of these general tendencies were apparent 
in the formal qualities of the law so created. In view of the fixed habits 
of the practitioners, who had to be reckoned with even in the Prussian 
Landreckt and who were oriented towards the concepts of the Roman 
law, the attempt to emancipate the law from the professional lawyers 
by the direct enlightenment of the public through the legislator himself 
of necessity resulted in a highly detailed casuistry, which, due to the 
striving for material justice, tended to be imprecise rather than formally 
clear. Yet, dependency on the categories and methodology of Roman 
law remained inescapable, despite numerous individual divergences and 
the vigorous attempt, for the first time undertaken in a German legal 
enactment, to use a German terminology. The occurrence of numerous 
provisions of a merely didactic or ethically admonitory character gave 
rise to many doubts as to whether or not a particular provision was 
really meant to constitute a legally binding norm. Despite the striving 
for explicitness, clarity was, furthermore, obscured by the fact that the 
Code's system took as its point of departure not formal legal concepts 
but the practical relations of life and thus frequently had to take up 
one and the same legal institution piecemeal in different places. 

The aim of eliminating the elaboration of his law by professional 
jurists was, indeed, achieved by the legislator to a considerable extent, 
although in not exactly the way intended. A real knowledge of the law 
by the public could scarcely be achieved by a many-volumed work with 
tens of thousands of sections, and if the aim was that of bringing about 
an emancipation from the influence of attorneys and other legal practi- 
tioners, the very nature of things prevented its realization under modern 
conditions. As soon as the Supreme Court COhertrtbunaT) began to 
publish a series of semi-official reports of its decisions, the cult of, stare 
decisis developed as strongly in Prussia as anywhere outside England. 
On the other hand, nobody could feel stimulated to undertake a scholarly 
treatment of a law which created neither formally precise norms nor 
clearly intelligible institutions, as neither of these was intended by this 
utilitarian legislation.** As a matter of fact, patrimonial substantive ra- 
tionalism has nowhere, been able to provide much stimulation for formal 
legal thought 



85 8 SOONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

The codification thus contributed to a situation in which the scholarly 
juristic activity was directed either even more to Roman law or, under 
the influe&ce of nationalism, to the legal institutions of older German 
law, with the aim rf present both of them, by means of the historical 
method, in their original "pure" form. For Roman law the result was 
that, under the hands of jurists trained as professional historians, it had 
to shed those transformations which it had undergone, since the recep- 
tion, to become adapted to the needs of the times. The Usus Modernus 
Pcmdectamm* 1 the product of the reworking of the Justinian law 
through the Civil Maw jurists, fell into oblivion and was condemned by 
scientific historical purists just as much as medieval Latin had been by 
the humanistic philologists. And just as the latter had resulted in the 
elimination of Latin ai the universal language of the learned, so Roman 
law lost its suitability to the needs of modern life. Not until then was 
the way completely open for abstract legal logic. Learned rationalism 
was thus merely shifted from one domain to another rather than over- 
come, as so many of the historians seem to believe. 

A purely logical re-systematization of the old law was, of course, not 
achieved by the historical jurists in any convincing way. 8 * It is well 
known, and it is indeed no accident, that down to Windscheids com- 
pendium,** almost all the pandectist treatises remained unfinished. The 
Germanist wing of the historical school of law was no more successful in 
producing a rigorously formal sublimation of those institutions which 
were not derived from Roman law. What attracted the historians in that 
field were indeed those irrational and antiformalistic elements which 
derived from the legal order of the old polity of Estates. 

Systematization and codification without loss of practical adaptability 
could thus be achieved only for those special fields which bourgeois in- 
terests had autonomously adapted to their needs and which had been 
empirically rationalized in die practice of special courts, i.e., commercial 
law and the law of negotiable instruments.** This achievement was pos- 
sible because compelling and clearly defined economic needs were op- 
erative. Rut when, after seven decades of supremacy of historians, and 
at the high point of a development of legal historiography never achieved 
in any other country, the creation of the German Reich dramatically 
demanded the unification of the private law as a national task, the Ger- 
vnian jurists were split in the two camps of Romanists and Germanists 
** aridappToached the undertakihg reluctantly and not fully prepared.' 1 

The type of patrimonial monarchical codification is represented by 
other codes, too, especially the Austrian** and the Russian.** The latter, 
it is true, essentially constituted merely the status law of the small privi- 
leged strata and left untouched the special institutions of_the other 



vi] 



Imperium and the Codifications 



859 



estates, especially the peasantry, i.e., the great majority of the subjects. 
It even left them their own special administration of justice to a practi- 
cally very far-reaching extent. The greater comprehensiveness of the 
Russian and Austrian codes, as contrasted with the Prussian, was pur- 
chased at the expense of precision and, in the Austrian code, by a greater 
dependency upon Roman law. It, too, did not attract scholarly thought 
for all the decades preceding lingers work,** and even then its treat- 
ment was carried on almost entirely within the framework of the Ro- 
manistic categories.** 



NOTES 

1. Writing before the First World War, Weber is here alluding to certain 
institutions of monarchical Germany and Austria-Hungary, especially the regula- 
tions for the princely courts and the officers' corps of the army. Where, as in the 
United Kingdom, monarchy still exists, similar phenomena still obtain, although 
only in the same formal sense in which a man-of-war is referred to as "His Cor 
'Her) Majesty's" ship or an army regiment as die "Royal" Dragoons. 

2. On' this achievement of the English kings, see Maitland, CaNSTrru- 
tional History of England (1931) 23, 151; Plucrnett 10. On the relation 
between feudal law and common law in Germany and in Medieval Europe in 
general, see Mrrrsis, Der Staat i>E8 kohbn Mixtelaltbrs (1944); further 
literature is stated by Planet* ior. 

3. Cf. Plucknhtt 487. 

4. Cf. sec. (1:5. For a full discussion of the status of the ctientela and 
their origin, see Mrrrsis 42; Mommsbn, Romischs Fokscbuncsn I, 355 et 
seq., andhis Staatsrecht III, 1, 57, 64, 76. 

5. Engelmann and Millak 452, 492. 

6. Cf. supra, sec. ii:6. For a recent concise account of the history of these 
special laws in France and Germany, see Koschaxrr, Europa und das romiscbe 
Rbcht 234-245, where also the full literature on the subject is referred to. 

7. Cf. -von Bar, History of Continental Criminal Law (1927) 73. 
For a similar development of the "King's Peace" in Erg^**^, see Pollock and 
Maitland II, 462-464; also Pollock, Tfc« Kmg't Pmo* m» the Middle Ages 
(1900), 13 Harv. L. Rev. 177, repr. z Selbctbd Essays in Anglo-American 
Legal History 403; Gobrbl, Felony and Misdemeanor 1 1937). For France, 
see Encslmann and Millar 661. For Germany, see Brunnbr, Rxchtsob- 
schicrte n, 47. 

8. Prodazha in modem Russian means "sale," the "giving for" money, but die 
original meaning was "penalty " or "fine"; cf . A. G. Preorrazhknsku, Etomomxh- 
CHSsxn Slovak' Russrooo lutxa (1910— 1914; reissued 1959) H, 129. (Wi) 

Opinions differ as to whether the fotyaz ('^rioce," from German Jestwmg 
["ling"] through Lithuanian kitimgas) Was merely functioning as an arbitrator, 
so that his award could be rejected by* the parries and they would be fees to pro- 
ceed with duel or feud, or whether he efeexdsed more e ff e cti v e judicial power. 
Cf . L. K. Goetz, Dssms$tscKe RechtCt9ie), 24 Z.F. vol. Rw. 141, 417 etseq.; 
G. Verkadsxy, Medieval Russian Law 10. The feud, with the possibility of 
its composition by the payment of wtrgjSt (Russian: vka, vyeni, deriving from the 



8 6 O ECONOMY AND LAW (SOCIOLOGY OF LAW") [ Ck. VIII 

same Germanic root; cf, Preobrazhbnskii, op. tit., I, 85), was still common when 
Christianity was imposed upon the Kiev realm by Vladimir I (972 [980]-! 01;). 

The opinion that a casuistic criminal law was introduced by the prince imme- 
diately after Christianization and upon the behest of the bishops finds some sup- 
port in the Russian Chronicles, which are too indefinite, however, to allow a final 
judgment. 

Public punishment by death or corporeal castigation is still exceptional in the 
so-called "oldest version" of the Russkaya Pravda, which was formerly ascribed to 
the age of Yaroslav I (1019— 1054), but upon which doubt has been thrown by 
recent research. See sec. »<:6. One who has tilled, injured, or otherwise of- 
fended another is ordered not only to pay wergilt to the person injured or his kin, 
but also a money fine to the prince. This combination corresponds to that of the 
Germanic laws where, in the period of growing royal power, an offender had to 
pay "peace money" (fredus) to the king in addition to the Basse (werg20 pay- 
able to the injured. In Russia this fine is called prodazha. The word nakazanie as 
a, general term for punishment seems not to occur before the time of firmly es- 
tablished government. 

9. Karl Binding, Die Normen und ihrb Obbrtrbtunc ( 1 890) 4 1 5. 

ro. AH the Volksrechte 0eges barbarontm, cf. sec. it*. a) contain extensive 
catalogues of misdeeds and the corresponding amounts of payment. The basis 
of computation is the -wergilt payable for the killing of a freeman. The amends 
(hot, Basse) for other acts are computed as fractions of the wergilt. For speci- 
mens of typical catalogues of this kind, see Simpson and Stone, Law and Soci- 
ety (1049) I, 97. See also Pollock and Maitland II, 451. 

11. Cf. Plucknbtt 183; Maitland, Equity 9. 

1 2. On the successful extension of the jurisdiction of the royal as against the 
ancient popular and feudal courts, see Radin, Anglo-American Legal History 
C1936) 141; Plucknstt 337, and literature stated there. * 

1 3. Special proceedings to protect possession, 

14. Second half of second century B.C. 

I 5. Cf, HoLDSWORTH VI, 640. 

16. Under Louis IX (the Saint, 1226— 1270), trial by ordeal was abolished 
and the jurisdiction of the feudal lords- was subjected to the supervision of the 
courts of $■ king,"the PdYlements, whose procedure dispensed with many of the 
formalities of the older courts. Gf. Brunner, Wort wtd Form im altfranzdsischen 
Prozes* 57 SrrzuNGSSSKlCBTE dbr Phil. Hist. Classe dbr Kaisbrl. Akadb- 

MIE D. WlSSENSCB. IN WlBN (1868). 

i' . Gf the measures taken by Henry II (n 54-1 189), the most important is 
the substitution of inquisition by jury for trial by battle in the assize of novel dis- 
seisin. 

Under Edward III (1327—1377) the possibility of challenging a court record 
by battle was abolished (Edw. 3, stat. i, c. 4) as well as that of bringing in the 
ecclesiastical court a prosecution for defamation against members of a grand jury 
who had indicted a person who was subsequently acquitted (1 Edw. 3, stat. 2, 
c. 1 0. Judicial independence as against the Grown was strengthened by the Sta- 
tute of Northampton (2 Edw. 3, c. 8); the police and judicial functions of the 
"keepers," "commissioners," or "justices of the peace" were enlarged and consoli- 
dated by a number of statutes (see Plucxnbtt 159); the scope of compelling a 
defendant to submit to trial by means of outlawry was extended (25 Edw. 3, 
stat. 5, c 17); and use of the English language was allowed in pleadings (36 
Edw. 3, c. 15). 

18. Capitularia — legislative acts of the Frankish kings; see supra, sec. v.i. 
On the use of fictions in them, see Brunner, Rbcbtscbschichte L 377, 379, 



vi ] - Imperium and. the Codifications 8 6 i 

who, among others, reports the following illustration from a atpitiilare of Charles 
the Bald, of 864 ; Under the Lex Saliaz, service of summons had to be performed 
ad domum, i.e., in the house of the defendant. At that time many houses had 
been destroyed, however, by the Norman invaders. The king thus ordained that 
in such a case the process servers might undertake a sham-service on the spot 
where the'house formerly had stood. 

19. Cf. Jolowicz 372-374. 

20. The legislative power of the Prankish kings was strictly limited. Laws, for 
example, which purported to alter the custom of the people could not be enacted 
without their consent. The principle was, lex fit consensu populi ac constitutione 
regis (Edict of Pistoia, 864, c. 6). Cf. Bbissaud, History of French Pubuc 
Law 8 1 . 

2i. Compare this with Weber's discussion of "public" and "private" law 
Sttpr«,sec. i: 1. 

22. Cervantes, Don Quijote, c. 45; cf. also the story of the Ameer of Af- 
ghanistan in Max Radin's Law as Logic and as Experience (1940) 65. 

23. Anschwdmng is invocation for harm, curse, execrate, to swear at; see, e.g., 
the article by J. Kohler and M. Schmidt, Zur Hechtsgeschichte Afnkas (1913J1 
30 Z.f. vcl. Rw. 33. On the monopoly of trade in Africa by the chieftains see 
Weber, History 197. 

i 24. For Africa see the recent literature referred to in sec. in, n. 45. In gen- 
eral compare O913) 3° Z.F. vol. Rw, 12 et seq., 25 et se<j., 32, 66—68, 75, ete. 

25. Basttto — Bantu native of Basuto Land Protectorate; Baralong — Bantu 
group in Central Bechuanaland; Muata Cazembe — hereditary chief whose terri- 
tory stretched from the south of Lake Mweru to north of Bangweulu, between 
9 and 11° S. In the late eighteenth century the authority of the Cazembe was 
widely recognized; it diminished in power until, toward the end of the nineteenth 
century, the Cazembe sank to the rank of a pert}' chief- Lately the territory was 
divided between Northern Rhodesia and Belgian Congo. Cf. Royal Geographical 
Soc., Thb Lands of the Cazembe (1873); M. Schmidt, Z«r Rechtsgeschicht?. 
Afrikas, 31 Z.f. vgl. Rw. (1914) 350, and 34 Z.f. vol. Rw. 441. As to Mo- 
rocco, see QueUen zw ethnolopschen Rechtsfonchvng (1923) 40 Z.f. vol. Rw. 
(Erganzungsband) 125. 

26. 264 — c. 227 B.C.; see Vincent Smith, Asoxa <[rev. ed. 1920); V. A. 
Smith, Edicts of Asoxa (1909) and especially Weber's discussion in GAzRS 
C2nd ed. lgi^fl, 253 [Religion of India, »3yf.]. 

27. Weber seems to think of the support of the Conservative party by certain 
groups of heavy industry and high finance, which often found itself in contrast 
to the demands of the Center parry and other groups representing the political 
interests of the craftsmen'and other middie*class strata in Germany. 

28. Jolowicz 69. 

29. The codes referred to are the Book of the Covenant (Exod. 21-23) an d 
the Decalogues in Exod. 20: 1-17 and 34:10^27; Deut. 27:15-26. See Weber's 
GAzRS ID, 251 tAndent Judaism, ajjf.]. There should be added die more 
recent Deuteroootmc Code in Deut. 4:44-26:19. On the Hebrew "codification" 
cf. J. M. Powts Smith, The Origin akd History of Hebrew Law (1931). 

30. According to tradition the Law of the Twelve TaJSes is the work of a 
Commission of Ten (Decemviri Leg&ws Scribundis) who" were appointed hi 451 
b.c. to satisfy die Plebeian demand for a fixation of the laws. The historicity of 
the tradition has been doubted. Recent researchers are inclined, however, to ac- 
cept it as substantially correct. Cf. Jolowicz 1 1, and Joss and Kunksl 3, 392, 
both with literature; cf. also supra sec. v, n. n. For a discussion of both the 
Hebrew and Roman Codification, see Diamond 102, 134. 



8 6 2 BCONOMY AND LAW (SOCIOLOGY OP LAW) [ Ch. VUl 

31. Aisymnetes (Gr. "adjuster") — temporary ruler, endowed with full govern- 
mental power*, elected to adjust the relationship between contesting classes within 
a city state, as, for instance, Solon in Athens or Cnarondasin Catania. 

32. Sex. Aelius Paetu* Catus, who held die censorate and other magistracies 
at the beginning of the second century B.C., was frequently quoted by later writes 
(Cicero) as one of the early authorities on the civil law. He is said to have pub- 
lished a Tripertita, a three-part collation containing the XII Tables, interpretations 
current in his day, and a formulary of writs (legts actioncs), which was Known as 
the tits Aelianum (Pompon. Digest L 2, 2, 38). Cf. the art. by Kkbs in Pault- 
WisaowA, Realenzyklopadib deb xlass. Altertumswxbs., I (1894), 527. 
(Wi) 

33. The most famous examples are the Sachsenspisgel and Beaumanoib; 
see supra, sec. «:5, n. 99 and sec. tv:2, n. 37. 

34. The Chinese compilation, which was in force in the Empire until its end, " 
was the Ta Ch'inc lu li of 1646, promulgated by the Manchu dynasty a few 
years after its seizure of power. On this and the other Chinese compilations, see 
Wbbbr, Religion of China, ior. Cf. also Escarra, Law, Chinese, 9 Enctc. Soc. 
Sci. 249, 266 (bibliography). 

35> For the Lex Salica and Leg/a Batberqrum, see sec. it, n. it; also Seacle 
166. The most recent reliable edition of the texts is that of the series entitled 
Cernutnenrechte, published by the Akademie fiir Deutsche* Recht (1935 et seq.~). 

36. The Assizes of Jerusalem were the code of laws for the kingdom of Jeru- 
salem as established by the Crusaders in 1099; see K. Rohricht, Geschtcbts 
dbs Konicrbichs Jerusalem (i 898). 

37. Siete Partidas (Span. Law of the Seven Parts). It was compiled between 
1256 and 1265 by Alfonso X, king of Leon and Castile. Among its sources were 
both the Fwero ]vzgo, i.e., the Spanish translation of the Germanic Lex Visi- 
gothomm~(<£. sec. w, n, 11), made in 1244, and the Roman tradition, especially 
as rudely compiled in the Visigothic "Code" for the Roman population, the Lex 
Rotrtana Visigpthorum or BreviaHwn Aland of 506. Similar rudimentary compila- 
tions of the Roman law as applicable to the Roman population were made in the 
Ostrqgothic kingdom of Theodoric, the Edictum Theoaorici (about 500), and m 
the Burgundian kingdom, the Lex Romana Burgundionum (also known as 
Papion). 

38. Cf. H. Lamb, Gbncjhiz Khan (1927) c. VII; Krause, Cinps Han, Hei- 
dblbergbr Aktbn der von-Portkbim Stdftunc (1922); G. Vemadsky, The 
Scope and Content of Chingis Khan's Yasa (1938), 3 Hahv. J. OF Asiatic Stu- 
dies 53. 

39. See Tee Cods of Hammurabi, ed. and tr. by R. E. Harper (1904); 
Koiileu st al., Hammurabis Gbsetz; G. R. Driver and John C. Miles, Thb 
Babylonian Laws (1952), 6 vols. (1904-23); for concise discussions and litera- 
ture see Diamond 22, and W. Ssacle, Men of the Law (1947) 13. 

40. As to codes earlier than that of Hammurabi and related legal monuments, 
see Koschaker, Forschungen und Ergebnisse n» den heshchrifitichen Rethtsqvet- 
Xen. (1929), 49 Sav. Z. Rom. i88j P. Landsberger, Die babyhnischen Termini 
fur Gesetz und Recht (1935) Symbola Koschaxeb. On the Sumerian Code, 
which has been dated 400 years earlier than the Code of Hammurabi, see the 
Note. Ur-Nasnu, [1954] Orienralia, fasc> 1. On a Sumerian code dated 200 
years earlier than the Code of Hammurabi, see P. R. Steele, The Code of Ltjrifr 
hhtar, [1948J American Journal of Archaeology, No. 52; on the Accadian 
Code, dated 80 years before the Code of Hammurabi, see Note. Sumer I1948] 
4 Amsbican Journal of Archaeology in Iraq, No. 2. 

41. Codifications of this kind were those cf Denmark (King Christian Vs 



vi ] Imperium and the Codifications 863 

Danish Law, of 1683), Sweden (The Law of The Realm of Sweden, of 1736), 
and Bavaria (1751, 1753, 1756), the Prussian Code of 1794 (see infra, nn. 54- 
56), the preparation of which was begun in 1738, the Austrian Code of 1811 
with its precursors of 1766, 1786, and 1797; also the various Ordinances suc- 
cessively enacted in France since 1 539 and dealing with certain special topics. Cf. 
Continental Legal History Series I (General Survey), 163. 

42. Among the vast literature on the resuscitation and reception of the Ro- 
man law in medieval and Renaissance law, the sources most suitable for a gen- 
eral orientation are: Vinogradoff, Roman Law in Medieval Europe (2nd ed. 
1929); Smith; E. Jenks, Law and Politics in the Middlb Aces (1905); 
Wieackbr, Vom romischen Rbcht (1944) 195; and, above all, Koschaxbr, 
Europa und das romische Recht (1947}; G. v. Below, Dm Ursachbn dhr 
Rezhption des romischbn Rbchts (1905}- Cf. also Maitland, English Law 
and the Renaissance (1901) and the articles in Continental Legal History 
Series, vol. I ( General Survey, 1912). For an instructive case study of the 
reception of Roman law in a particular city, see Coing, Die Rezrbtion des Ro- 
mischenRbchtbs in Frankfurt a.M. (1939). 

43. The views stated are expressed in A- Stolzel, Die Entwicklung der gehhr- 
ten Rechtsprechvng (1910), in E. Rosenthal's extensive review of this book in 
31 Sav. Z. Germ. 522, esp. 538; and in Rosenthal's own Geschichtb des Ge- 
rkihtswrsbns und der Vbrwaltungsorcanisation in Bayern (1889/1906). 

44. "That which is owed to the collective is not owed to its members." 
Ulpian, Dig. 3.4.7.1. 

45. "What is void from the beginning, cannot be cured by the passage of 
time." Dig. 50.17.29. 

46. Ekrlich 253, 2 97> 34&> 479> 

47. These concepts are of fundamental importance in the present law of Ger- 
many and those related to ^especially Switzerland and Austria. A "legal trans- 
action'' (Rechtsgeschiift') is every transaction of a person which is intended to 
produce legal consequences, such as an offer, or its acceptance, the contract itself, 
a will, or the abandonment of the title to a chattel; it is to be distinguished from 
natural events creating legal consequences, such as, for instance, the avulsion of 
a piece of land by a torrent, and also from P.echtshandtungen, i.e., human activi- 
ties which create legal consecuences without, cr even against, the will of the ac- 
tors, as, for instance, the negligent causation by one person of bodily injury to 
another. It is one of the peculiar features of the German Cr/il Code that it treats 
in one place those legal prob' *.!...* which aw> common to all legal transactions of 
any kind, be it a contract, a conveyance, a martiage, a will, or die issuance of a 
.negotiable instrument. There are thas treated in the Third Part of the First Book 
of the Code (Sees. 104—185): capacity, declaration of intention, contract, condi- 
tion and time term, authority, and ratification. 

"Declaration of intention" (,W8h*$erklanmg) is that particular kind of legal 
transaction which requires that a perso-i make manifest his intention. An offer or 
an acceptance ate declarations of intention; a contract, however, is a "legal trans- 
action" consisting of the declarations of Intention of offeror and offeree. The rules 
applicable to declarations of intention of any kind are all treated together in Sees. 
116-144, which thus deal with such problems as fraud, mistake, coercion, formal- 
ities, interpretation, or .invalidity. For further explanation see Schuster, Prbt- 
ciplrs of Gbrman Ctvjl Law (1907) 78; (Brit) Foreign Office, Manual op 
German Law (1950) 42. 

48. In the terminology of its critics, both American and German, the method 
here sketched is that of "conceptual jurisprudence.'* As to Germany, it is described 
in detail, analyzed, and criticized by the various authors of the essays collected in 



864 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. VIII 

loth Century Legal Philosophy Series: Vol. II, Thb Jurisprudence op Inter- 
ests (1948). 

49. On this function of law school faculties as appellate courts, see Engbl- 
mann; Sttntzing, Gbschichte der deutschsn Rechtswissenschaft (1880) 
I, 65; Stolzel, op. cit. I, 187; Rheinstsin, Law Faculties and Law SchooU 
[1938] .Wis. L. Rev. 5,7. 

50. For a discussion of the Roman law influences on the Common Law, see 
Maitland, English Law and the Renaissance (1901); Scrutton, The In- 
fluence of Roman Law on the Law of England (1885). 

51. The Reichskammergerickt (Imperial Chamher Court) was established in 
1495, as a common supreme court for all parts of the Holy Empire, in the course 
of the — in the long run — futile attempts to rejuvenate its moribund central gov- 
ernment. It was to render its decisions according to "The Empire's Common 
Law," which meant, the Roman law. Cf. Engblmann and Millar 520; R. 
Sm end, Das Re ichska mme rgbricht ( 1 9 1 1 ) . * 

52. Seeswpra, sec. tv:3, atn. 65. 

53. Upon the promulgation of the completed work, the use of any juristic 
writings outside of the Code and especially of those which had been collected in 
the Digest, was forbidden. Prohibited also, under penalty of deportation and 
confiscation of property, was the writing of new commentaries. The Corpus Iuris 
was to be the exclusive source of the law. Whatever doubts would arise in its ap- 
plication were to be submitted to the Emperor for his own authoritative interpre- 
tation. The Institutes were to be the only treatise to be used in legal education. 

54. Prussian General Code, of June 1794. Cf. supran. 41. 

55. The Draft provided in Sec. 2 that "rules of customary law are valid only 
in so far as they are referred to by the [statutory] law." This provision was not 
taken over into the Code. 

56. A scholarly, systematic exposition of the Code was successfully under- 
taken, nevertheless, by Demburg in his Preussisches Prtvatrecht, 3 vols. 
(1894). Significantly, the author was a Romanist and the treatise did not appear 
until shortly before the Prussian Code was replaced by the new German Civil 
Code of 1896. 

57. See Ehrlich 319-340. 

58. On thehistoricalschool,seeSTONE42i. 

59. WlNDSCHBID, LeBRBUCH DES PaNDBETBNRBCHTS, 3 vols. 1862-1870. 

Cf. ed. by Kipp, 1906; on Windscheid see the article by Jobwicz, 15 Encyc Sco, 
Sci. 429. * 

60. The law of bills of exchange and promissory notes was codified as early 
as 1848 in a law which was adopted by all member states of the German Con- 
federation, including Austria. The codification of the general commercial law fol- 
lowed in 1861. 

61. S«pr«,sec.ii:6,atn. 177. 

62. General Civil Code (Altgemeines btirgerUches Gesetzbwch'), of 181 1. 

63. Svod Zakonov, begun in 1809; revised ed. 1857; covering, in 40,000 
articles, the entire field of law, including public 1£w. 

64. System des dsterreichischen aUgemeinen Privatrtchts, 2 vols,, 1856. 

65. On codification in general and in the United States in particular, see now 
H. E. Yntema, The Jurisprudence cf Codification (1949), David Dudley FraLD 
Centenary Essays 25 1 . 



vii ] Formed Qualities of Revolutionary Law — Natural Law 865 

vii 

The Formal Qualities of Revolutionary Law 

— ^ Natural Law 

r . The French Civil Code 

If we compare the products of the pre-revolutionary period with that 
child of the Revolution, the Civil Code/ and its imitations aD over 
Western and Southern Europe,* we can see how considerable the formal 
differences between them are. The Code is completely free from the 
intrusion of, and intermixture with, nonjuristic elements and all didactic, 
as well as all merely ethical admonitions; casuistry, too, is completely 
absent. Numerous sentences of the Code sound as epigrammatic and 
as monumental as the sentences of the Twelve Tables, and man^y of 
them have become parts of common parlance in the manner of ancient 
legal -proverbs.' Certainly none of the precepts of the Allgemeine 
Landrech? or any other German code has achieved such fame. As a 
product of rational legislation, the Code Civil has become the third of 
the world's great systems of law, alongside Anglo-Saxon law, a product 
of juristic practice, and the Roman common-law, a product of theoretical- 
literary juristic doctrine. It has also become the foundation of the vast 
majority of eastern and central European codifications. The attainment 
of this position can be explained by its formal qualities; for the code 
possesses, or at least gives the impression of possessing, an extraordinary 
measure of lucidity as weB as a precise intelligibility in its provisions. 
This tangible clarity of many of its precepts the Code owes to the 
orientation of a large number of its legal institutions to the law of the 
coutumes." To this clarity and simplicity much has been sacrificed in 
formal juristic qualities and in the depth and thoroughness of substan- 
tive consideration. 8 However, both as a result of the abstract total struc- 
ture of the legal system and the axiomatic nature of many provisions, legal 
thinking has not been stimulated to a truly constructive elaboration of legal 
institutions in their pragmatic interrelations. It has rather found itself 
impelled to accept as mere rules those frequent formulations of the Code 
which are just rules rather than 'articulations of broader principles, and 
to adapt them to the needs of practice from case to case. Quite probably, 
peculiar formal qualities of modern French jurisprudence are perhaps to 



8 6 6 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cfc. VIII 

some extent to be ascribed to these somewhat contradictory character- 
istics of the Code. But these characteristics are expressions of a particular 
kind of rationalism, namely the sovereign conviction that here for the 
first time was being created a purely rational law, in accordance with 
Bentham's ideals, free from all historical "prejudices" and deriving its 
substantive content exclusively from sublimated common sense in asso- 
ciation with the particular raison d'etat of the great nation that owes 
its power to genius rather than to legitimacy. In certain cases the Code 
sacrifices juristic sublimation to vivid form. "This attitude towards legal 
logic stems directly from the personal intervention of Napoleon, while 
the epigrammatically dramatized character of some of its provisions 
corresponds to the type of formulation of the "rights of man and citizen" 
in the American and French constitutions. Certain axioms concerning 
the substantive content of legal norms are not presented in the form of 
matter-of-fact rules, but as postulate-like maxims, with the claim that a 
legal system is legitimate only when it does not contradict those postu- 
lates. With this particular method of forming abstract legal propositions 
we sljall now deal briefly. 



2. Natural Law as the Normative Standardof 
Positive Law * ■ 

Conceptions of the "rightness of the law" are sociologically relevant 
within a rational, positive legal order only in so far as they give rise to 
practical consequences for the behavior of law makers, legal practitioners, 
and social groups interested in the law. In other words, they become 
sociologically relevant only when practical legal life is materially affected 
by the conviction of the particular "legitimacy" of certain legal maxims, 
and of the directly binding force of certain principles which are not to 
he disrupted by any concessions to positive law imposed by mere power. 
Such a situation has repeatedly existed in the course of history, but quite 
particularly at the beginning of modem times and during the Revolu- 
tionary period, and in America it still exists. The substantive content of 
such maxims is usually designated as "Natural Law."* 

We encountered the lex naturae earlier 8 as an essentially Stoic crea- 
tion which was taken over by Christianity for the purpose of constructing 
a bridge between its own ethics and the norms of the world." It was the 
law legitimated by God's will for all men of this world of sin and vio- 
lence, and thus stood in contrast to those of God's .commands which 



vii ] Formal Qualities of Revolutionary Law — Natural Law 867 

were revealed directly to the faithful and are evident only to the elect. 
But here we must look at the lex naturae from another angle. Natural 
law is the sum total of all those, norms which are valid independently 
of, and superior to, any positive law and which owe their dignity not to 
arbitrary enactment but, on the contrary, provide the very legitimation 
for the binding force of positive law. Natural law has thus been the col- 
lective term for those norms which owe their legitimacy not to their 
origin from a legitimate lawgiver, but to their immanent and teleological 
qualities. It is die specific and only consistent type of legitimacy cf a 
legal order which can remain once religious revelation and the au- 
thoritarian saeredness of a tradition and its bearers have lost their force. 
Natural law has thus been the specific form of legitimacy of a revolu- 
tionarily created order. The invocation of natural law has repeatedly 
been the method by which classes in revolt against the existing order 
have legitimated their aspirations, in so far as they did not, or could not, 
base their claims upon positive religious norms or revelation. Not every 
natural law, however, has been "revolutionary" in its intentions in the 
sense that it would provide the justification for the realization of certain 
norms by violence or by passive disobedience against an existing order. 
Indeed, natural law has also served to legitimate authoritarian powers 
of the most diverse types. A "natural law of the historically real" has 
been quite influential in opposition to the type of natural law which is 
based upon or produces abstract norms. A natural law axiom of this 
provenience can be found, for instance, as the basis of the theory of the 
historical school concerning the preeminence of "customary law," a 
concept clearly formulated by this school for the firsi time. 10 It became 
quite explicit in the assertion that a legislator could not in any legally 
effective way restrict the sphere of validity of customary law by any en- 
actment or exclude the derogation of the enacted law by custom. It was 
said to be impossible to forbid historical development to take its course. 
The same assumption by which enacted law is reduced to the rank of 
"mere" positive law is contained also in all those half historical and half 
naturalistic theories of Romanticism which regard the Volksgetst as the 
only natural, and thus the only legitimate, source from which law and 
culture can emanate, and according to which all "genuine" law must 
have grown up "organically" and must be based direcdy upon the sense 
of justice, in contrast to "artificial," i.e., purposefully enacted, law. 11 The 
irrationalism of such axioms stands in sharp contrast to the natural law 
axioms of legal rationalism which alone were able to create norms of 3 
formal type and to which the term "natural law" has a fotiori been re- 
served for that reason. 



8 6 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

3 . The Origins of Modern Natural Law 

i 

The elaboration of natural law in modern times was in part based on 
the religious motivation provided by the rationalistic sects; it was also 
partly derived from the concept of nature of the Renaissance, which 
everywhere strove to grasp the canon of the ends of "Nature's" will. To 
some extent, it is derived, too, from the idear particularly indigenous to 
England, that every member of the community has certain inherent 
natural rights. This specifically English concept of "birthright"- arose 
essentially under the influence of the popular conception that certain 
rights, which had been confirmeu in Magna Charta as the special status 
rights of the barons, were national liberties of all Englishmen as such 
and that they were thus immune against any interference by the King 
or any other political authority." But the transition to the conception 
that every human being as such has certain ri^hls was mainly completed 
through the rationalistic Enlightenment of the seventeenth and eight- 
eenth centuries with the aid, at certain periods, of powerful religious, par- 
ticularly Anabaptist, influences. 



4. Transformation of Formal into Substantive 
Natural Law 

The axioms of natural law fall into very different groups, of which 
we shall consider only those which bear some especially close relation to 
the economic order. The natural-law legitimacy of positive law can be 
connected either with formal or with substantive conditions. The distinc- 
tion is not a clear-cut one, because there simply cannot exist a com- 
pletely formal natural law; the reason is that such a natural law would 
consist entirely of general legal concepts devoid of any content. None- 
theless, the distinction has great significance. The purest type of the 
first category is that "natural law" concept which arose in the seven- 
teenth and eighteenth centuries as a result of the already mentioned 
influences, especially in the form of the "contract theory," and more 
particularly the individualistic aspects of that theory. All legitimate law 
rests upon enactment, and all enactment, in rum, rests upon rational 
agreement. This agreement is either, first, real, i.e., derived from an 
actual original contract of free individuals, which also regulates the form 
in which new law is to be enacted in the future; or, second, ideal, in 
the sense that only that law is legitimate whose content does not con- 
tradict the conception of a reasonable order enacted by free agreement. 



vii ] Formal Qualities of Revolutionary Law — Natural Law 869 

The essential elements in such a natural law are the "freedoms," and 
above all, "freedom of contract " The voluntary rational contract became 
one of the universal formal principles of natural law construction, either 
as the assumed real historical basis of all rational consociations including 
the state, or, at least, as the regulative standard of evaluation. Like every 
formal natural law, this type is conceived as a system of rights legiti- 
mately acquired by purposive contract, and, as far as economic goods 
are concerned, it rests upon the basis of a community of economic agree- 
ment (Emverstandnisgeryteinschaft) created by the full development of 
property. Its essential components are property and the freedom to dis- 
pose of property, i.e., property legitimately acquired by free contractual 
transaction made either as "primeval contract" with the whole world, or 
with certain other persons. Freedom of competition is implied as a con- 
stituent element. Freedom of contract has formal limits only to the extent 
that contracts, and social conduct in general,-must neither infringe upon 
the natural law by which they are legitimated nor impair inalienable 
freedoms. This basic principle applies to both private arrangements of 
individuals and the official actions of the organs of society meant to be 
obeyed by its members. Nobody may validly surrender himself into 
political or private slavery. For the rest, no enactment can validly limit 
the free disposition of the individual over his property and his working 
power. Thus, for example, every act of social welfare legislation pro- 
hibiting certain contents of the free labor contract, is on that account an 
infringement of freedom of contract. Until quite recently the Supreme 
Court of the United States has held that any such legislation is invalid 
on the purely formal ground that it is incompatible with the natural-law 
preambles to the constitutions. 1 * 

"Nature" and "Reason" are the substantive criteria of what is legiti- 
mate from the standpoint of natural law. Both are regarded as the same, 
and so are the rules that are derived from them, so that general proposi- 
tions about regularities of factual occurrences and general norms of con- 
duct are held to coincide. The knowledge gained by human "reason" is 
regarded as identical with the "nature of things" or, as one would say 
nowadays, the "logic of things." The "ought" is identical with the "is," 
i.e., that which exists in the universal average. Those norms, which are 
arrived at by the logical analysis of the concepts of the law and ethics, 
belong, just as the 'laws of nature," to those generally binding rules 
which "not even God Himself could change," and with which a legal 
order must not come into conflict. Thus, for instance, the only kind of 
money which meets the requirements of the "nature of things" and the 
principle of the legitimacy of vested rights is that which has achieved 
the position of money through the free exchange of goods, in other 



870 BCONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

words, metallic money." Some nineteenth-century fanatics therefore 
argued that, according to natural law, the state should rather go to 
pieces than that the legitimate stability of the law be sullied by the 
illegitimacy of "artificially" created paper money. For an infringement of 
the legitimate law, it was claimed, would in itself be a negation of the 
very "idea" of the State. 

This formalism of natural law, however, was softened in several 
ways. First of all, in order to establish relations with the existing order, 
natural law had to accept legitimate grounds for the acquisition of rights 
which could not be derived from freedom of contract, especially acquisi- 
tion through inheritance. There were numerous attempts to base the 
law of inheritance on natural law." They were mainly of philosophical 
rather than positively juristic origin, and so we shall disregard them 
here. In the last analysis, of course, substantive motives almost always 
enter the picture, and highly artificial constructions are thus frequent. 
Many other institutions of the prevailing system, too, could not be 
legitimated except on practical utilitarian grounds. By "justifying" them, 
natural law "reason" easily slipped into utilitarian thinking, and this 
shift expresses itself in the change of meaning of the concept of "reason- 
ableness." In purely formal natural law, the reasonable is that which is 
derivable from the eternal order of nature and logic, both being readily 
blended with one another. But from the very beginning, the English 
concept of "reasonable" contained by implication the meaning of "ra- 
tional" in the sense of "practically appropriate." From this it could be 
concluded that what would lead in practice to absurd consequences, 
cannot constitute the law desired by nature and reason. This signified 
the express introduction of substantive presuppositions into the concept 
of reason which had in fact always been implicit in it. 18 As a matter of 
fact, it was with the aid of this. shift in the meaning of the term that 
the Supreme Court of the United States was able to free itself from 
formal natural law. so as to be able to recognize the validity of certain 
acts of social legislation." 

In principle, however, the formal natural law was transformed into a 
substantive natural law as soon as the legitimacy of an acquired right 
came to be tied up with the substantive economic rather than with the 
formal modes of its acquisition. Lasalle, in his System of Vested Eights 
[1861], still sought to solve a particular problem in natural law fashion 
by formal means, in his case by those derived from Hegel's theory of 
evolution. The inviolability of a right formally and legitimately acquired 
on the basis of a positive enactment is presupposed, but the natural law 
limitation of this type of legal positivism becomes evident in connection 
with the problem of the socalled retroactivity of laws and the related 



mi ] Formal Qualities of Revolutionary Law — Natural Law 871 

question of the state's duty to pay compensation where a privilege is 
abolished. The attempted solution, which is of no interest to us here, is 
, of a thoroughly formal and natural law character. 

The decisive turn towards substantive natural law is connected 
primarily with socialist theories of the exclusive legitimacy of the acquisi- 
tion of wealth by one's own labor. For this view rejects not only all 
unearned income acquired through the channels of inheritance or by 
means of a guaranteed monopoly, but also the formal principle of free- 
dom of contract and general recognition of the legitimacy of all rights 
acquired through the instrumentality of contracting. According to these 
theories, all appropriations of goods must be tested substantively by the 
extent to which they rest on labor as their ground of acquisition. 



5. Class Relations in Natural Law Ideology 

t Naturally both the formal rationalistic natural law of freedom of 
contract and the substantive natural law of the exclusive legitimacy of 
the product of labor have definite class implications. Freedom of contract 
and all the propositions regarding as legitimate the property derived 
therefrom obviously belong to the natural law of the groups interested in 
market transactions, i.e., those interested in the ultimate appropriation of 
the means of production. Conversely, the doctrine that land is not pro- 
duced by anybody's labor and that it is thus incapable of being 
appropriated at all, constitutes a protest against the closedness of the 
circle of landowners, and thus corresponds with the class situation of 
a proletarianized peasantry whose restricted opportunities for self- 
maintenance force them under the yoke of the land monopolists." It is 
equally clear that such slogans must acquire a particularly dramatic 
power where the product of agricultural exploitation still depends pri- 
marily upon the natural condition of the soil and where the appropri- 
ation of the land is not, at least internally, completed; where, further- 
■ more, agriculture is not carried on in rationally organized large-scale 
enterprises, and where the income of the landlord is either derived 
entirely from the tenants' rent or is produced through the use of peasant 
equipment and peasant labor. All these conditions exist in large measure 
in the area of the "Black Earth" [Ukraine and Southern Russia], As 
regards its positive meaning, this natural law of the small peasantry is 
ambiguous. It can mean in the first place the right to a share in the 
land to the extent of one's own labor power (tmdovaya norma); or, 
secondly, a right to the ownership of land to the extent of the tradi- 
tional standard of living (jpotrehityelnaya norma'). In conventional 



872 ECONOMY AND LAW (^SOCIOLOGY OF LAW) [ Cll. VIII 

terminology the postulate thus means either the "right to work" or the 
"right to a minimum standard of living"; thirdly, however, the two may 
he combined with the demand for the "right to the full product of one's 
labor." 

The Russian revolution of the last decade [i.e., of 1905-06], in all 
probability the last of the worlds natural-law oriented agrarian revolu- 
tions, 18 has been bled to death also by the irresolvable contradictions be- 
tween its various ideologies. Those first two natural-law positions were 
incompatible not only with one another, but also with the various peasant 
programs, whether they were motivated by historical, realistically political, 
practically economical, or finally — and in hopeless confusion because of 
internal contradictions between the inherent basic dogmas — by Marxist- 
evolutionist considerations. 

Those three "socialist" rights of the individual have also played a 
role in the ideologies of the industrial proletariat. The first and the 
second are theoretically possible under handicraft as well as under capi- 
talistic conditions of the working class; the third, however, is possible 
only under handicraft conditions. Under capitalism the third right of 
natural law is possible either not at all or only where cost prices are 
strictly and universally maintained in all exchange transactions. In agri- 
culture, it can be applied only where production is not capitalistic, since 
capitalism shifts the imputation of the yield of agricultural land from 
the place of direct agricultural production to the workshops where the 
agricultural implements, artificial fertilizers, etc., are produced; and the 
same holds true for industry. Quite generally, where the return is deter- 
mined by the sale of the product in a freely competitive market, the 
content of the right of the individual to the full value of his product 
inevitably loses its meaning. There simply is no longer an individual 
'Tabor yield," and if the claim is to make any sense it can be only as the 
collective claim of ail those who find themselves in a common class 
situation. In practice, this comes down to the demand for a "living 
wage," i.e., to a special variant of the "right to the standard of living as 
determined by traditional need." It thus resembles the medieval "just 
price" as demanded fay ecclesiastical ethics which, in case of doubt, 
was determined by the test (and occasionally experimentally) of 
whether or not at the given price the craftsmen in question could main- 
tain the standard of living appropriate to their social status. 

The "just price" itself, which was the most important natural law 
element in canonist economic doctrine, fell prey to the same fate. In the 
canonistic discussions of the determinants of the "just price" one can 
observe how this labor value price corresponding to the "subsistence 
principle" is gradually replaced by the competitive price which becomes 



vit ] Formal Qualities of Revolutionary Law — Natural Law 873 

the new "natural" price in the same measure as the- market community 
progresses. In the writings of Antonin of Florence [1 389-1 459] the 
latter had already come to prevail. In the oudook of the Puritans it was, 
of course, completely dominant, The price which was to be rejected as 
"unnatural" was now one which did not rest on the competition of the 
free market, ie., the price which was influenced by monopolies or other 
arbitrary human intervention. Throughout the whole puritanically in- 
fluenced Angle-Saxon world this principle has had a great influence up 
to the very present. Because of the fact that the principle derived its 
dignity from natural law, it remained a far stronger support for the 
ideal of "free competition" than those purely utilitarian economic the- 
ories which were produced on the Continent in the manner of Bastiat 
[1801-50]. 



t 6. Practical Significance and Disintegration of 
Natural Law 

All natural law dogmas have influenced more or less considerably 
both lawmaking and lawfinding. Some of them survived the economic 
conditions of the time of their origin and have come to constitute an 
independent factor in legal development. Formally, they have strength- 
ened the tendency towards logically abstract law, especially the power 
of logic in legal thinking. Substantively, their influence has varied, but 
it has been significant everywhere. This is not the place to trace in detail 
these influences and the changes and compromises of the various natural 
law axioms. The codifications of the pre-revolutionary. rationalistic 
modern state, as well as the revolutionary codifications, were influenced by 
the dogmas of natural law, and they ultimately derived the legitimacy of 
the law which they created from its "reasonableness." 40 We have already 
seen how easily on the basis of such a concept the shift from the ethical 
and juristicaHy formal to the utilitarian and technically substantive 
could, and did, take place. This transformation, for reasons which we 
have already discussed, was very favorable to the pre-revolutionary patri- 
archal powers, while the codifications of the Revolution, which took 
place under the influence of the bourgeoisie, stressed and strengthened 
the formal natural law, which guaranteed to the individual his rights 
vis-a-vis the political authorities. 

The rise of Socialism at first meant the growing dominance of sub- 
stantive natural law doctrines in the minds of the masses and even more 
in the minds of their theorists from among the intelligentsia. These sub- 



874 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cfc. Vlll 

stantive natural law doctrines could not, however, achieve practical in- 
fluence over the administration of justice, simply because, before they 
had achieved a position to do so, they were already being disintegrated 
by the rapidly growing positivistic and relativistic-evolutionistic skep- 
ticism of the very same intellectual strata. Under the influence of this 
anti-metaphysical radicalism, the eschatological expectations of the 
masses sought support in prophecies rather than in postulates. Hence in 
the domain of the revolutionary theories of law, natural law doctrine was 
destroyed by the evolutionary dogmatism of Marxism, while from the 
side of "official" learning it was annihilated pardy by the Comtean 
evolutionary scheme and partly by the historicist theories of organic 
growth. A final contribution in the same direction was made by Real- 
folitik which, under the impact of modem power politics, had come to 
affect the treatment of public law. 21 

The method of the public law theorists has been, and still is to a 
great extent, to point to certain apparent practical-political absurdities 
as the consequence of the juristic theory which they happen to oppose; 
and then to treat the theory as effectively disposed of forever after. This 
method is not only direcdy opposed to that of formal law, but it also 
contains nothing of substantive natural law. In the main, Continental 
jurisprudence, even up to the most recent times, proceeds on the basis 
of* the largely unchallenged axiom of the logical "closedness" of the 
positive law. 2 * It seems for the first time to have been expressly stated 
by Bentbam as a protest against the case law rut and the irrationality 
of the common law. 23 It is indirectly supported by all those tendencies 
which reject all transcendental law, especially natural law, including, to 
this extent, the historical school. While it would hardly seem possible 
to eradicate completely from legal practice all the latent influence of 
unacknowledged axioms of natural law, for a variety of reasons the 
axioms of natural law have been deeply discredited. The conflict be- 
tween the axioms of substantive and formal natural law is insoluble. 
Evolutionist theories have been at work in various forms. AH metajuristic 
axioms in general have been subject to ever continuing disintegration 
and relativization. In consequence of both juridical rationalism and 
modern intellectual skepticism in general, the axioms of natural law 
have lost all capacity to provide the fundamental basis of a legal system. 
Compared with firm beliefs in the positive religiously revealed character 
of a legal norm or in the inviolable sacredness of an age-old tradition, 
even the most convincing norms arrived at by abstraction seem to be too 
subtle to serve as the bases of a legal system. Consequently, legal posi- 
tivism has, at least for the time being, advanced irresistibly. The dis- 
appearance of the old natural law conceptions has destroyed all possi- 



vii ] Formal Qualities of Revolutionary Law — Natural Law 875 

bility of providing the law with a metaphysical dignity by virtue of its 
immanent qualities. In the great majority of its most important provi- 
sions, it has been unmasked all too visibly, indeed, as the product or 
the technical means of a compromise between conflicting interests. 

But this extinction of the metajuristic implications of the law is one 
of those ideological developments which, while they have increased 
skepticism towards the dignity of the particular rules of a concrete legal 
order, have also effectively promoted the actual obedience to the power, 
now viewed solely from an instrumentalist standpoint, of the authorities 
who claim legitimacy at the moment. Among the practitioners of the law 
this attitude has been particularly pronounced. 2 * 



7. Legal Positivism and the Legal Profession 

The vocational responsibility of maintaining the existing legal system 
seems to place the practitioners of the law in general among the "con- 
servative" forces. This is true in the twofold sense that legal practi- 
tioners are inclined to remain cool not only toward the pressure of 
substantive postulates put forward from "below" in the name of "social" 
ideals but also towards those from "above" which are put forward in the 
name of patriarchal power or welfare policies. Of course, this statement 
should not be taken as representing the whole truth without qualifica- 
tions. The role of the representative of the underprivileged, and of the 
advocate of formal equality before the law is particularly suited to the 
attorney by reason of bis direct relationship with his clients, as well as 
by reason of his character as a private person working for a living and 
his fluctuating social status. This is why attorneys, and lawyers in gen- 
eral, have played such a leading role in the movements of the ■pofolani 
of the Italian communes and, later, in all the bourgeois revolutions of 
modern times as well as in the socialist parties. It also explains why in 
purely democratic countries, such as in France, Italy, or the United 
States, the lawyers, as the professionally expert technicians of the legal 
crafts, as honoratiores, and as the fiduciaries of their clients, are the 
natural aspirants to political careers. 

Under certain circumstances, judges, too, have maintained strong 
opposition to patriarchal powers, either for ideological reasons or out of 
considerations of status group solidarity or, occasionally, because of 
economic reasons. To them, the fixed and regular determinateness of all 
external rights and duties is apt to appear as a worth-while value to be 
pursued for its own sake; this specifically "bourgeois" element in their 



876 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

thought has determined their attitudes in the political conflicts which 
were fought for the purpose of limiting authoritarian patrimonial arbi- 
trariness and favoritism. 

Whether the legal profession would take the side either of the au- 
thoritarian or the anti-authoritarian powers, once the "rule-boundedness" 
of the social order had been achieved, depended upon whether the 
emphasis was more upon mere "order," or upon "liberty," in the sense 
of guaranty and security of the individual. The choice depended, in the 
terminology of Radbruch, on whether law was viewed more as "regula- 
tion" or as the source of "rights." 25 But quite apart from this antinomy, 
it was also the previously mentioned alternative between the formal and 
substantive legal ideals and the vigorous, economically conditioned "Re- 
vival of the latter, both in the upper and lower strata of the social 
hierarchy, that weakened the oppositionist tendencies of the lawyers as 
such. We shall discuss later just what technical devices authoritative 
powers have used to overcome resistance from within the judiciary. 26 
Among the general ideological factors which account for the change 
in the lawyers' attitude, the disappearance of the belief in natural law 
has played a major role. If the legal profession of the present day mani- 
fests at all typical ideological affinities to various power groups, its mem- 
bers are inclined to stand on the side of "order," which in practice means 
that they will take the side of the "legitimate" authoritarian political 
power that happens to predominate at the given moment. In this respect, 
they differ from the lawyers of the English and French revolutionary 
periods and of the period of enlightenment in general. They differ also 
from those who'had to act within the framework of patrimonial despot- 
ism or had been sitting in [German nineteenth-century] parliamentary 
bodies and municipal councils down to Prussia's "circuit judges' parlia- 
ment" of the 1860's." 



NOTES 

1. The French Civil Code was proclaimed on 21 March 1804, under the 
title of Code CrviL des Franc; ais. In 1807 this title was changed to Code Na- 
poleon, and in 1816 the original title was restored with the fall of the Napole- 
onic regime. During the reign of Napoleon III the reference to Napoleon was re- 
instated in the title (1% 2- 1870). While Napoleon was the main driving force 
and an active participant in the making of the Code, the demand for, and the 
beginning of, codification in France preceded the Napoleonic era. Even before the 
Revolution of 1789 the diversity of local laws had come to be regarded as cum- 
bersome and their incompleteness as a source of legal uncertainty, and the Estates 
General had thus petitioned for a uniform national law. Also the judges of the 
French yarlements had become unpopular. The Constituent Assembly of 1790 
noted that a code should be proposed, but it was left to the Convention of 1793 



vit ] Formal Qualities of P evolutionary Laic — Natural Law 877 

to create a special drafting commission, headed by Cambacet^s which was to start 
the actual work and indeed was charged with its completion within a month. 
This commission actually succeeded in completing a draft of seven hundred ar- 
ticles within six weeks, which, however, was rejected on the ground that it was 
too elaborate and detailed and might restrict the freedom of the individual! An- 
other, much shorter, draft was presented one year later (in September 1794), but 
was only little debated. Of the two further drafts — one in 1 796 consisting of five 
hundred articles and another in 1 799 — equally little resulted, as the Convention 
was engaged in waging a war with virtually the whole of Europe; yet, as Viollet 
has remarked (Cambridge Modern History VIII, 710 at 741-742), "The Con- 
vention amidst disorders at home and war abroad peacefully deliberated on ques- 
tions of inheritance, alluvial lands, illegitimate children, and the whole body of 
civil law. . ." The Consulate, with Napoleon as First Consul, resumed the work, 
and much of Cambace^eV labor was embodied in the final Code. 

In the Code much of the customary law of Northern France was preserved, 
combined with the conceptual technique of the eighteenth -century Roman law. 
Extensive use was made of the work of Domat (1625-1696) and, especially, 
Pothier (1699-1722), who had laid, in their extensive writings, the bases of a 
common law of France. The whole work was permeated, however, with a strong 
spirit of liberalism and individualism. 

* The Code was [in 1954] still in effect in France, although modified by a large 
number of amendments. A Commission had been charged with the preparation of 
a total revision of the Code in 1946. 

On the Code, see Viollet, loc, cit.- r Lobingier, Code civile and Codification in 
3 Encyc. Soc. Sci. 604, 606, with further literature; on the current work of 
revision, see J. de la Morandiere, Reform of the Frencfi Civil Code (1948), 97 
U. of Pa. L. Rev. i. 

~ 2. Through the Napoleonic conquests the Code Civil was spread outside 
France; but permanently it was retained only in Belgium, Luxembourg, and that 
part of (Russian) Poland which had leen constituted by Napoleon as the Grand- 
Duchy of Warsaw. Until the German Civil Code of 1896 took effect in 1900, 
the French Code remained in effect in those parts 'of Germany which are situ- 
ated on the left bank of the Rhine, in the Grand-Duchy of Baden, and in a 
small sector of the Rhine Province east of the Rhine. 

During the nineteenth century the Code Civil, in translation and with in- 
considerable modifications, became the law of the Netherlands, Italy (now re- 
placed by a new Code of J942), Rumania, Egypt, Quebec, Louisiana, Portugal, 
and Spain. The Spanish Code, with slight amendments, is still in effect in Puerto 
Rico, Cuba, and the Philippine Republic, and has constituted the model for most 
of the codes of Latin America. 

New types of codification were started with the German Civil Code of 1896 
and the Swiss Gvil Code of 1912. The former was taken over, with slight 
changes, in Japan, the latter in Turkey. In the modem codes of pre-communist 
China, Thailand, Brazil, Mexico (federal law), and a few other Latin American 
countries, the models of the French, German, and Swiss codes are combined, 
partly also with indigenous ideas. Cf. Fisher, The Codes, 9 Cambridge Modern 
History 148; Amos, The Code Na-poleon and ike Modern World (1928), 10 J. 
Com p. LficrsL. 22; A. Reppy (ed.), David Dudley Field Cbntttmry Essays 

C'949)' 

3. Cf., for instance: 
Art. 2, La loi ne dispose que pour 1'avenir; elle n'a point d'effet re"txoactif (The 
law disposes only for tl^e future; it has no retroactive effect). 



878 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

Art. 1 1 34. Les conventions legalement formfes tiennent lieu de Joi i ceux qui les 

ont faites (A contract piopeily concluded holds the place of law for those who 

have made it). 

Art. 1381. Tout fait quelconque de l'homme, qui a caus£ a aumii un dommage, 

oblige celui par la faute ducuel il est arrive, a le reparer (Every act of man which 

causes harm to another hinds the one through whose fault it has occurred to make 

reparation). 

Art. 2179, para. 1. En fait de meubles, la possession vaut fitre ("As to chattels, 

possession amounts to title" — meaning: a bona fide purchaser from the possessor 

acquires a good title). 

So great a French writer as Stendhal is said to have had such a high opinion 
of the Code's literary style that he made it a habit to read a chapter of it before 
sitting down to write. Cf. Seaclb 286. 

4. Cf. supra, sec. vi:4, at nn. 54$ . 

5. Coutvmes — customary law of Northern France. Apart from the law of 
property -and contract, which was primarily derived from Roman law, almost 
everything else in the code was based on customary law. Thus it was the custom- 
ary law as systematized by Pothier to which, as has been said, three-quarters of 
the code can be traced back: see Ehri.ich 415-416. 

6. An instance of this kind is provided by the two articles of the code (arts. 
1382 and 1383) which purport to formulate the genera! principles of almost the 
whole French law of delicts (torts). For an analysis see Waiton, Delictual Re- 
sponsibility in the Modern Civil Law (1933), 49 i.Q. Rev. 70. Compare with 
the two laconic articles of the French Code the 951 sections of the Restatement 
of the Law of Torts by the American Law Institute (4 vols. 1939). 

• 7. For concise surveys of, and bibliographies on, the various forms of Nat- 
ural Law concepts and their role and significance, see G. Gurvitch, Natural Law, 
n Encyc. Sog. Sci. 284; Stone 215; I. W. Jones, Historical Introduction 
to the Theory of Law (1947); see also C. G. Haines, Revival of Natural 
Law Concepts in America ( 1930) and Rommen, Natural law ( 1947). 

8. Seech. VI:3fiti:3, , 

9. See E. Troeltsch, The Social Teachings of the Christian 
Churches (2 vols., tr. by O. Wyon, London, 1931) and Weber's remarks on 
Troeltsch's paper on The Stoic-Christian Natural Law in Vehhandluncen des 
Deutsche n Soziologentacs ( 191 o) I, 1 96, 2 1 o, repr. in GAzSS 462. 

10. Cf.sMpra.sec. w:z,atn.9. 

1 1. This attitude is represented by the Historical School, especially the Gei- 
manists, among whom Gierke has been particularly prominent. An American 
representative was James C. Carter, the chief opponent of David Dudley Field's 
codification plans (see the article on him by Llewellyn in 3 Encyc. Soc. Sci. 243). 

12. The so-called Whig conception of English history: cf. H. Butterfield, 
The Englishman and His History (1944). On the real and the imaginary 
Magna Carta see W. S. McKechnie, Magna Carta 1215-1915, Magna Carta 
Commemoration Essays (19 17) I, 18; M. Radin, The Myth of Magna Carta 
(1947) 60 Harv. L. Rev. 1060. 

1 3. Sic. What is meant is obviously the due process clause of the Fourteenth 
Amendment of the Constitution of the United States. 

14. See Weber, Economic History 236 and literature cited at p. 377; also 
swprw, Part One, ch. 11:6 and II: 32-36. 

15. See, For instance, Leibniz, who derives inheritance from the immortality 
of the soul (Nova Methodus Docbndi Discendiqub Juris, Part II, Sec. 20, 



vii ] formal Qualities of Revolutionary Law — Natural Law 879 

17); his argumentation is also followed by Ahrens (Cours de droit naturel 
[1838], Part U, Sec. 102). Grotius finds the basis of testate succession in natural 
freedom and that of intestate succession in its implied agreement with the will of 
the decedent (De iure pacis ac belli [1625], II, c. vii; cf. on his theory Maine 
190). 

The natural law theories were attacked by Pufendorf, who declared inheri : 
tance to be an institution of positive law (De ixtre naturae et gentium [1671], 
4.10. i-6). This opinion was followed by Blackstone (Book II, c. xiv). 

16. What Weber has in mind is the shift from natural law thinking to utili- 
tarianism, as expressed by Bentham, John Stuart Mill, and Spencer. 

17. See Knoxville Iron Co. v. Harbison (1901) 183 U.S. 13; McLean v. 
Arkansas (1908) 211 U.S. 539; Erie R.R. v. Williams (1914) 233 U.S. 685:— 
statutes prescribing the character, methods, and time for payment of wages. 

Holden v. Hardy (1898) 169 U.S. 366; Bunting v. Oregon (1917") 243 U.S. 
426; MuOer v. Oregon (1908) 208 U.S. 412; Rfley v. Massachusetts (1914) 
232 U.S. 671; Miller v. Wilson (1915) 236 U.S. 373; Bosley v. McLaughlin 
(1915) 236 U.S. 385: — statutes fixing hours of labor. 

N.Y. Central R.R. Co. v. White (1917) 243 U.S. 1 88 :— workmen s compen- 
sation laws. 

Later decisions, such as Adkins v. Children's Hospital (1923) 261 U.S. 525, 
in which the rule of reason was temporarily nullified, or the New Deal cases, 
could, of course, not be considered by Weber. 

For a penetrating survey and analysis, from the continental point of view, of 
the attitudes of the American judiciary toward social legislation, see Ed. Lam- 
bert, Lb gouvbrnement des juges et la lutte jumciare contre la legis- 
lation sociale aux Etats-Unis (1921), 

18. On this and the following, see Weber's discussion of the Russian revolu- 
tion of 1905 in Archiv v. Sozialwissenschaft (1906), XXII, 234 and XXIII, 
165; see also his article on Ritsslands Obergang zur Scheindemokmtie (1917) 23 
Die Hilfe 272, repr. in GPS, 191ft. 

19. In the second of the two articles mentioned in n. 18 supra Weber, at p. 314, 
predicted the coming of a new revolution in Russia, which would be oriented 
toward communism rather than natural law and which would create a state of 
affairs different from anything that had ever existed before. 

20. For a monographic inquiry into the influence of natural law ideologies 
upon one particular code, viz., that of Austria, see Swoboda, Das allgemeine 
burcerliche Gesetzbuch im Lichte Kants (1924). 

2 1 . The mode of a completely "positivist" treatment of public law was repre- 
sented in Germany particularly by Paul Laband (1838-1918) and his disciples,_ 
On Laband, see the article by E. von Hippel in 8 Encyc. Soc. Sci. 614. 

22. See supra, sec. i:g. 

23. Weber here states an opinion expressed by Hatschek (Englisches 
Staatsrbcht 153), but opposed by J. Lucas (Zwr Lehre von detn WiUen des 
Gesetzgeben, Fbstgabe fur Laband [1908]), who traced the dogma of the gap- 
lessness of the legal order to the natural law tendencies of absolute monarchy and 
denied any possible influence in this respect of Bentham. The controversy was 
carried on in a series of articles by Hatschek (1909), 24 Archiv f. offent- 
liches Recht 442; (1910) 26 ibid. 458; and Lukas (1910) 26 ibid. 67 and 
465. 

24. On positivism in Germany see G. Radbruch, Rechtsphilosophie 
(1950) 115. This latest book of Radbruch's (as to his crlier views, see the 20th 



8 8 O ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

Century Lejpl Philosophy Series, Vol. IV, The Legal Philosophies of Latk, Rad- 
bruch, and Dabm [1950]) is also typical of the revival of natural law thinking in 
post-World-War-II Germany; cf. in this respect also H. Coinc, Drs obbrsthn 
Gbundsatze des Rbchts (1947), and Grundzuce der Rechtsphilosophib 
(1950); on the transformations of Radhmch's thought, see F. v. Hippel, Gustav 
Radbp.uch als rechtsphilosophischer Denxer (1951). 

25. Cf, Rechtsphilosophib (1914 *dOi the terminology is no longer used, 
however, in the versions of 1932 and 1 1950. 

26. This intended investigation was not carried out hy Weber. 

27. Kreisrichterfarhttnent — so called because a considerable number of its 
members were Kreisrichter (circuit judges), who, at the time, were predominantly 
Liberals and opposed to the policies of Bismarck. 



Vlll 

The Formal Qualities of Modern Law 

1 . Particularism in Modern Law 

As we have seen, the specifically modem occidental type of admin- 
istration of justice has arisen on the basis of rational and" systematic 
legislation. However, its basic formal qualities are by no means un- 
ambiguously definable. Indeed, this ambiguity is a direct result of more 
recent developments. 

The ancient principles which were decisive for the interlocking of 
"right" and "law" have disappeared, especially the idea that one's right 
has a "valid" quality only by virtue of one's membership in a group of 
persons by whom this quality is monopolized. To the past now also be- 
longs the tribal or status-group quality of the sum total of a person's 
rights and, with it, their "particularity" as it once existed on the basis 
of free association or of usurped or legalized privilege. Equally gone are 
the status and other special courts and procedures. Yet neither all 
special and personal law nor all special jurisdictions have disappeared 
completely. On the contrary, very recent legal developments have 
brought an increasing particularism within the legal system. Only the 
principle of demarcation of the various spheres has been characteristi- 
cally changed. A typical case is that of commercial law, which is, indeed, 
one of the most important instances of modern particularism. Under the 
German Commercial Code this special law applies to certain types of 
corftracts, 1 the most important of which is the contract for acquisition 



viit ] - The Formal Qualities of Modern Law 8 8 i 

of goods with the intention of profitable resale. This definition of com- 
mercial contract is entirely in accordance with a rationalized legal sys- 
tem; the definition does not refer to formal qualities, but to the intended 
functional meaning of the concrete transaction. On the other hand, com- 
mercial law also applies to certain categories of persons whose decisive 
characteristic consists in the fact that contracts are made by them in the 
course of their business. 2 What is thus really decisive for the demarca- 
tion of the sphere of this type of law is the concept of "enterprise." An 
enterprise is a commercial enterprise when transactions of such peculiar 
kind are its constitutive elements. Thus every contract which "belongs" 
substantively, i.e., in its intention, to a commercial enterprise is under 
the Commercial Code, even though, when regarded alone and by itself, 
it does not belong to that category of transactions which are genetically 
defined as commercial and even though, in a particular case, such a 
corftract may happen to be made by a nonmerchant The application of 
this body of special law is thus determined either by substantive quali- 
ties of an individual transaction, especially its intended meaning, or by 
the objective association of a transaction with the rational organization 
of an enterprise. It is not determined, however, by a person's member- 
ship in a status group legally constituted by free agreement or privilege, 
which was in the past the operative factor for the application of a special 
law. 

Commercial law, then, inasmuch as its application is personally de- 
limited, is a class law radier than a status-group law. However, this 
conrrast \vith the. past is but a relative one. Indeed, so far as the law or 
commerce and the law of other purely economic "occupations" are con- 
cerned, the principle of jurisdictional delimitation has always had a 
purely substantive character, which, while often varying in externals, 
has essentially been the same throughout. But those particularities in 
the legal system which constituted a definite status law were more sig- 
nificant both quantitatively and qualitatively. Besides, even the voca- 
tional special jurisdictions, so far as their jurisdictions did not depend 
upon the litigants' membership in a certain corporate body, have usually 
depended upon mere forma] criteria such as acquisition of a license or a 
privilege. For example, under the new German Commercial Code, a per- 
son is characterized as a merchant by the mere fact that he is listed in 
the register of commercial firms.* The personal scope of application of 
the commercial few is thus determined by a purely formal test, while in 
other respects its sphere is delimited by the economic purpose which a 
given transaction purports to achieve. The spheres of the special laws 
applicable to other occupational groups are also predominantly defined 
along substantive or functional criteria, and it is only under certain cir- 



882 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck, Vlll 

cumstances that applicability is governed by formal tests. Many of these 
modem special laws are also combined with special courts and proce- 
dures of their own.* 

Mainly two causes are responsible for the emergence of these par- 
ticularistic laws. In the first place, they have been a result of the occupa- 
tional differentation and the increasing attention which commercial and 
industrial pressure groups have obtained for themselves. What they ex- 
pect from these particularistic arrangements is that their legal affairs will 
he handled by specialized experts. 1 The second cause, which has played 
an increasingly important role in most recent times, has been the desire 
to qjjminate the formalities of normal legal procedure for the sake of a" 
settlement that would be both expeditious and better adapted to the 
concrete case.* In practice, this trend signifies a weakening of legal for- 
malism out of considerations of substantive expediency and thus con- 
stitutes but one instance among a whole series of similar contemporary 
phenomena. 



2. The Anti-Formalistic Tendencies of Modern Legal 
Development 

From a theoretical point of view, the general development of law 
and procedure may be viewed as passing through the following stages: 
first, charismatic legal revelation through "law prophets"; second, em- 
pirical creation and finding of law by legal honoratiores, i.e., law crea- 
tion through cautelary jurisprudence and adherence to precedent; third, 
imposition of law by secular or theocratic powers; fourth 3nd finally, 
systematic elaboration of law and professionalized administration of 
justice by persons who have received their legal training in a learned 
and formally logical manner. From this perspective, the formal qualities 
of the law emerge as follows: arising in primitive legal procedure from 
a combination of magically conditioned formalism and irrationality con- 
ditioned by revelation, they proceed to increasingly specialized juridical 
and logical rationality and systematization, sometimes passing through 
the detour of theocratically or patrimonially conditioned substantive and 
. informal expediency. Finally, they assume, at least from an external 
viewpoint, an increasingly logical sublimation and deductive rigor and 
develop an increasingly rational technique in procedure. 

Since we are here only concerned with the most general lines of de- 
velopment, we shall ignore the fact that in historical reality the theoreti- 
cally constructed stages of rationalization have not everywhere followed 
in the sequence which we have just outlined, even if we_ ignore the 



viii } The Formal Qualities of Modern Law 883 

world outside the Occident. We shall not be troubled either by the 
multiplicity of causes for the particular type and degree of rationalization 
that a given law has actually assumed, which even our brief sketch has 
shown. We shall only recall that the great differences in the line of de- 
velopment have been essentially influenced, first, by the diversity of 
political power relationships, which, for reasons to be discussed later, 
have resulted in very different degrees of power for the imperium vis-a-vis 
the powers of the kinship groups, the folk community, and the status 
group; second, by the relations between the theocratic and the secular 
powers; and, third, by the differences in the structure of the [strata of] 
"legal notables" significant for the development of a given law, differences 
which also were largely dependent upon political factors. 

Only the Occident has witnessed the fully developed administration 
of justice of the folk-community (Dinggenossenschaft) and the status- 
stereotyped form of patrimonialism; and only the Occident has witnessed 
the rise of the national economic system, whose agents first allied them- 
selves with the princely powers to overcome the estates and then turned 
against them in revolution; and only the West has known "Natural 
Law," and with it the complete elimination of the system of personal 
laws and of the ancient maxim that special law prevails over general 
law. Nowhere else, finally, has there occurred any phenomenon re- 
sembling Roman law and anything like its reception. All these events 
have to a very large extent been caused by concrete political factors, 
which have only the remotest analogies elsewhere in the world. For 
this reason, the stage of law decisively shaped by trained legal special- 
ists has not been fully reached anywhere outside of the Occident. 
Economic conditions have, as we have seen, everywhere played an im- 
portant role, but they have nowhere been decisive alone and by them- 
selves. To the extent that they contributed to the formation of the 
specifically modern features of present-day occidental law, the direction 
in which they worked has been by and large the following: To those 
'who had interests in, the commodity market, the rationalization and 
systematization of the law in general and, with certain reservations to 
be stated later, the increasing calculability of the functioning of the 
legal process in particular, constituted one of the most important con- 
ditions for the existence of economic enterprise intended to function' 
with stability and, especially, of capitalistic enterprise, which cannot do 
without legal security. Special forms of transactions and special proce- 
dures, like the bill of exchange and the special procedure for its speedy 
collection, serve this need for the purely formal certainty of the guar- 
anty of legal enforcement. 

On the other hand, the modem and, to a certain extent, the ancient 



884 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Cft. VIII 

Roman, legal developments have contained tendencies favorable to the 
dilution or legal formalism. At a first glance,' the displacement of the 
formally bound law of evidence by the "free evaluation of proof ap- 
pears to be of a merely technical character/ We have seen that the 
primitive system of magically bound proof was exploded through the 
rationalism of either the theocratic or the patrimonial kind, both of 
which postulated procedures for the disclosure of the real truth. Thus 
the new system clearly appears as a product of substantive rationaliza- 
tion. Today, however, the scope and limits of the free evaluation of 
proof are determined primarily by commercial interests, i.e. f by economic 
factors. It is clear that, through the system of free evaluation of proof, a 
very considerable domain which was once subject to formal juristic 
thought is being increasingly withdrawn therefrom.* But we are here 
more concerned with the ^onesponding trends in the sphere of sub- 
stantive law. One such trend lies in the intrinsic necessities of legal 
thought. Its growing logical sublimation has meant everywhere the 
displacement of dependence on externally tangible formal charac- 
teristics by an increasingly logical interpretation of meaning in relation 
to the legal norms themselves ss well as in relation to legal transactions. 
In the doctrine of the continental "common law" this interpretation 
claimed that it would, give efiect to the "real" intentions of the parties; 
in precisely this manner it mtioduced an individualizing 3nd relatively 
substantive factor into legal formalism. This kind of interpretation seeks 
to construct the relations of the parties to one another from the point of 
view of the "inner" kernel ;*.C their behavior, from the point of view of 
their mental "attitudes" (suuh as good faith or malice).* Thus it relates 
legal consequences to informal elements of the situation and this treat- 
ment provides a telling parallel to that systematization of religious ethics 
which we have already considered previously. Much of the system of 
co-nmodity exchange, in primitive as well as in technically differentiated 
patterns of trade, is possible only on the basis of far-reaching personal 
confidence and trust in the loyalty of others. Moreover, as commodity 
exchange increases in importance, the need in legal piactice to guarantee 
or secure such trustworthy conduct becomes proportionally greater. But 
in the very nature of the case, we cannot, of course, define with formal 
certainty the legal tests according to which the new relations of trust 
and confidence are to be governed. Hence, through such ethical (gestn- 
nungsethisch) rationalization the courts have been helpful to powerful 
interests. Also, outside of the sphere of commodity exchange, the ra- 
tionalization of the law has substituted attitude-evaluation as the signif- 
icant element for assessment of events according to external criteria. In 
criminal law, legal rationalization has replaced the purely mechanistic 



viii J The Formal Qualities of Modern Law 885 

remedy of vengeance by rational "ends of punishment" of an either 
ethical or utilitarian character; and has thereby introduced increasingly 
rtonformal elements into legal practice. In the sphere of private Jaw the 
concern for a party's mental attitude has quite generally entailed evalua- 
tion by the judge. "Good faith and fair dealing" or the "good" usage of 
trade 01', in other words, ethical categories have become the test of what 
the parties are entitled £0 mean by their "intention." 10 Yet, the reference 
to the "good" usage of trade implies in substance the recognition of such 
attitudes which are held by the average party concerned with the case, 
i.e., a general and purely business criterion of an essentially factual 
nature, such as the average expectation of the parties in a given trans- 
action. It is this standard which the law has consequently to accept. 11 
Now we have already seen that the expectations of parties will often 
be disappointed by the results of a strictly professional legal logic. 11 
Such disappointments are inevitable indeed where the facts of life are 
juridically "construed" in order to make them fit the abstract proposi- 
tions of Jaw and in accordance with the maxim that nothing can exist in 
the realm of law unless it can be "conceived" by the jurist in conformity 
with those "principles" which are revealed to him by juristic science. 
The expectations of the parties are oriented towards the economic or 
the almost unitarian meaning of a legal proposition. However, from the 
point of view of legal logic, this meaning is an "irrational" one. For 
example, the layman will never understand why it should be impossible 
under the traditional definition of larceny to commit a larceny of electric 
power. 13 It is by no means the peculiar foolishness of modern juris- 
prudence which leads to such conflicts. To a large extent such conflicts 
rather are the inevitable consequence of the incompatibility that exists 
between the intrinsic necessities of logically consistent formal legal 
thinking and the fact that the legally relevant agreements and activities 
of private parties are aimed at economic results and oriented towards 
economically determined expectations. It is for this reason that we find 
the ever-recurrent protests against the professional legal method of 
thought as such, which are finding support even in the lawyers' own 
reflections on their work. But a "lawyers* law" has never been and never 
will be brought into conformity with lay expectation unless it totally 
tenounce that formal character which is immanent in it. This is just 
as true of the English law which we glorify so much today, 1 * as it has 
been of the ancient Roman jurists or of the methods of modern conti- 
nental legal thought. Any attempt, like that of Erich Jung, 1 * to replace 
the antiquated 'law of nature" by a new "natural law" aiming at "dis- 
pute settlement" (StreitschUchiung) in accordance with the average 
expectations of average parties would thus come up against certain im- 



8 8 6 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. Vlll 

manent limitations. But, nevertheless, this idea does have some validity 
in relation to the realities of legal history. The Roman law of the later 
Republic and the Empire developed a type of commercial ethics that 
was in fact oriented towards that which is to be expected on the average. 
Such a view means, of course, that only a small group of clearly corrupt 
or fraudulent practices would be outlawed, and the law would not go 
beyond what is regarded as the "ethical minimum."" In spite of the 
bona fides (which a sellei had to display), the maxim of caveat emptor 
remained valid. 

New demands for a "social law" to he based upon such emotionally 
colored ethical postulates as "justice" or "human dignity," and directed 
against lie very dominance of a mere business morality, have arisen 
with the emergence of the modern class problem. They are advocated 
not only by labor and other interested groups but also by legal ideolo- 
gists. 17 By these demands legal formalism itself has been challenged. 
Such a concept as economic duress, 16 or the attempt to treat as immoial, 
and thus as invalid, a contract because of a gross disproportion between 
promise and consideration, 19 are derived from norms which, from the 
legal standpoint, are entirely amorphous and which are neither juristic 
nor conventional nor traditional in character but ethical and which 
claim as their legitimation substantive justice rather than formal legality. 

Status ideologies of the lawyers themselves have been operative in 
legal theory and practice along with those influences which have been 
engendered by both the social demands of democracy and the welfare 
ideology of monarchical bureaucracy. Being confined to the interpreta- 
tion of statutes and contracts, like a slot machine into which one just' 
drops the facts (plus the fee) in order to have it spew out the decision 
(plus opinion), appears to the modern lawyer as beneath his dignity; 
and the more universal the codified formal statute law has become, the 
more unattractive has this notion come to he. The present demand is for 
"judicial creatsveness," at least where the statute is silent. The school 
of "free UW : has undertaken to prove that such silence is the inevitable 
fate ci t-yjvy statute in view of the irrationality of the facts of life; that 
in countless instances the application of the statutes as "interpreted" is a 
delusion, and that the decision is, and ought to be, made in the light 
of concrete evaluations rather than in accordance with formal norms. 20 

For the case where the statute fails to provide a clear rule, the well- 
Itnown Article i of the Swiss Civil Code orders the judge to decide ac- 
cording to that rule which he himself would promulgate if he were the 
legislator." This provision, the practical import of which should not be 
overestimated, however, 22 corresponds formally with the Kantian for- 
mula. But in reality a judicial system which would practice such ideals 



viii } - The Formal Qualities of Modern Law 887 

would, in view of the inevitability of value-compromises, very often have 
i to forget about abstract norms and, at least in cases of conflict, would 
have to admit concrete evaluations, i.e., not only non formal but irra- 
tional lawfinding. Indeed, the doctrine of the inevitability of gaps in the 
legal order as well as the campaign to recognize as fiction the systematic 
coherence of the law has been given further impetus by the assertions* 
that the judicial process never consisted, or, at any rate never should 
consist, in the "application" of general norms to a concrete case, just as 
no utterance in language should be regarded as an application of the 
rules of grammar. 23 In this view, the "legal propositions" are regarded 
as secondary and as being derived by abstraction from the concrete de- 
cisions which, as the products of judicial practice, are said to be the real 
embodiment of the law. Going still farther, one has pointed out the 
quantitative infrequency of those cases which ever come to trial and 
judicial decision as against the tremendous mass of rules by which hu- 
man behavior is actually determined; from this observation one has com^ 
■ derogatively to call "mere rules of decision" those norms which appear 
in the judicial process, to contrast them with those norms which are fac- 
tually valid in the course of everyday life and independently of their 
reaffirmation or declaration in legal procedure, and, ultimately, to estab- 
lish the postulate that the true foundation of the law is entirely "so- 
ciological." 24 

Use has also been made of the historical fact that for long periods, 
including our own, private parties have to a large extent been advised 
by professional lawyers and judges who have had technical legal train- 
ing or that, in other words, all customary law is in reality lawyers' law. 
This fact has been associated with the incontrovertible observation 
that entirely new legal principles are bei:>g established not only yraeter 
legem but also contra legem?*' by judicial practice, for instance, that of 
the German Supreme Qc^.x after the entry into force of the Civil Code. 
From fill these facts the idea was derived m;<r case law is superior to the 
rational establishment of objective norm:, and that the expedient; al bal- 
ancing of concrete interests is superior to the creation and recognition 
of "norms" in general." 11 The modem :W"*y of legal sources has thus 
disintegrated both the half-mvsticnl concept; of "customary law," as it 
had been created by hisforicis;n. :\t well as the equally bistoricist concept 
of the "will of the Jugislator" that could be discovered through the study 
of the legislative history of an enactment as revealed in committee re- 
ports and similar sources. The statute rather than tne legislator has been 
thus proclaimed to be the jurists' main concern- Thus isolated from its 
background, the "law" is then turned owr for elaboration and applica- 
tion to the jurists, among whom the predominant influence is assigned 



8 8 8 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. Vlll 

at one time to the practitioners and at others, for instance, in the reports 
accompanying certain of the modern codes, to the scholars." In this 
manner the significance of the legislative determination of a legal com- 
mand is, under certain circumstances, degraded to the role of a mere 
"symptom" of either the validity of a legal proposition or even of the 
mere desire of such validity which, however, until it has been accepted 
in legal practice, is to remain uncertain. But the preference for a case 
Jaw which remains in contact with legal reality — which means with the 
reality of the lawyers — to statute law is in turn subverted by the argu- 
ment that no precedent should be regarded as binding beyond its con- 
crete facts. The way is thus left open to the free balancing of values in 
each individual case. 

In opposition to all such value-irrational ism, there have also arisen 
attempts to reestablish an objective standard of values. The more the 
impression grows thst legal orders as such are no more than "technical 
tools," the more violently will such degradation be rejected by the law- 
yers. For to place on the same level such merely "technical rules" as a 
customs tariff and legal norms concerning marriage, parental power, or 
the incidents of ownership, oflends the sentiment of the legal practi- 
tioners, and there emerges the nostalgic notion of a metapositive law 
above that merely technical positive law which is acknowledged to be 
subject to change. The old natural law, it is true ; looks discredited by 
the criticisms leveled at it from the historical and ^ositivist points of 
view. As a substitute there are now advanced thf religiously inspired 
natural law of the Catholic, scholars, 2 * and certain efforts to deduce 
objective standards from the "nature" of the law itff-'f. The latter effort 
has taken two. forms. In the a-prioristic, Neo-K-'mnan doctrines, the 
"right law," as the normative system of a "society o. free men," is to be 
both a legislative standard for rational legislation ar*d a source for judi- 
cial decisions where the law refers the judge to apparently nonformal 
criteria. 28 In the empiricist, Comtean, way those "expectations" which 
private parties are justified to have in view of the average conception 
existing with regard to the obligations of others, are to serve as the 
ultimate standard, which is to be superior even to the statute and which 
is to replace such concepts as equity, etc., which are felt to be too 
vague. 30 

At this place we cannot undertake a detailed discussion or a full 
criticism of these tendencies which, as our brief sketch has shown, have 
produced quite contradictory answers. All these movements are inter- 
national in scope, but they have been most pronounced in Germany and 
France. 31 They are agreed only in their rejection of the once universally 
accepted and until recently prevalent peiitio prittdpii of the consistency 



viii ] The Formal Qualities of Modern Law 889 

and "gaplessness" of the legal order. Moreover, they have directed them- 
selves against very diverse opponents, for instance, in France against 
the school of the Code-interpreters and in Germany against the method- 
ology of the Pandectists. Depending upon who are the leaders of a par- 
ticular movement, the results favor either the prestige of "science," i.e., 
of the legal scholars, or that of the practitioners. As a result of the con- 
tinuous growth of formal statute law and, especially, of systematic codi- 
fication, the academic scholars feel themselves to be painfully threatened 
both in their importance and in their opportunities for unencumbered 
intellectual activity. The rapid growth of anti-logical as well as the anti- 
historical movements in Germany can be historically explained by the 
fear that, following codification, German legal science might have to 
undergo the same decline which befell French jurisprudence after the 
enactment of the Napoleonic Code or Prussian jurisprudence after the 
enactment of the Allgemeine Landrecht. Up to this point these fears 
are thus the result of an internal constellation of intellectual interests. 
However, all variants of the developments which have led to the rejec- 

*tion of that purely logical systematization of the law as it had been de- 
veloped by Pandectist learning, including even the irrational variants, 
are in their turn products of a self-defeating scientific rationalization of 
legal thought as well as of its relentless self-criticism. To the extent 
that they do not themselves have a rationalistic character, they are a 
flight into the irrational and as such a consequence of the increasing 
rationalization of legal technique. In that respect they are a parallel to 
the irrationalization of religion. One must not overlook, however, that 
the same trends have also been inspired by the desire of the modem 
lawyers, through the pressure groups in which they are so effectively or- 
ganized, to heighten their feeling of self-importance and to increase their 
sense of power. This is undoubtedly one of the reasons why in Germany 
such continuous reference is made to the "distinguished" position of the 
English judge who is said not to be bound to any rational law. Yet, the 

differences in the attribution of honorific status on the Continent and 
in England are rather rooted in circumstances which are connected with 
differences in the general structure of authority. We have dealt with 
this before, and shall do so again in a different context. 



3 . Contemporary Anglo-American Law 

The differences between Continental and Common Law methods of 
legal thought have been produced mostly by factors which are respec- 
tively connected with the internal structure and the modes of existence 




890 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ch. VIII 

of the legal profession as well as by factors related to differences in 
political development. The economic elements, however, have been 
determinative only in connection with these elements. What we are 
concerned with here is the fact that, once everything is said and done 
about these differences in historical developments, modern capitalism 
prospers equally and manifests essentially identical economic traits 
under legal systems containing rules and institutions which considerably 
differ from each other at least from the juridical point of view. Even 
what is on the face of it so fundamental a concept of Continental law 
as dominium still does not exist in Anglo-American law. 32 Indeed, we 
may say that the legal systems under which modem capitalism has been 
prospering differ profoundly from each other even in their ultimate 
principles of formal structure. 

Even today, and in spite of all influences by the ever more rigorous 
demands for academic training, English legal thought is essentially an 
empirical art. Precedent still fully retains its old significance, except that 
it is regarded as unfair to invoke a case from too remote a past, which 
means older than about a century. One can also still observe the charis- 
matic character of lawfinding, especially, although not exclusively, in 
the new countries, and quite particularly the United States. In practice, 
varying significance is given to a decided case not only, as happens 
everywhere, in accordance with the hierarchal position of the court by 
which it was decided but also in accordance with the very personal 
authority of an individual judge. This is true for the entire common-law 
sphere, as illustrated, for instance, by the prestige of Lord Mansfield. 
But in the American view, the judgment is the very personal creation of 
the concrete individual judge, to whom one is accustomed to refer by 
name, in contrast to the impersonal "District Court" of Continental- 
European officialese. The English judge, too, lays claim to such a posi- 
tion. All these circumstances are tied up with the fact that the degree 
of legal rationality is essentially lower than, and of a type different from, 
that of continental Europe. Up to the recent past, and at any rate up to 
the time of Austin, there was practically no English legal science which 
would have merited the name of "learning" in the Continental sense. 
This fact alone would have sufficed to render any such codification as 
was desired by Bentham practically impossible. But it is also this feature 
which has betn responsible for the "practical" adaptability of English 
law and its "practical" character from the standpoint of the public. 

The legal thinking of the layman is, on the one hand, Iiteralistic. He 
tends to be a definition-monger when he believes he is arguing "legally." 
Closely connected with this trait is the tendency to draw conclusions 
from individual case to individual case; the abstractionism of the "pro- 



viii ] - . The Formal Qualities of Modern Law 891 

fessional" lawyer is far from *he layman's mind. In both respects, how- 
ever, the art of empirical jurisprudence is cognate to him, although he 
may not like it. No country, indeed, has produced more bitter com- 
plaints and satires about the legal profession than England. The formu- 
laries of the conveyancers, too, may be quite unintelligible to the lay- 
man, as again is the case in England. Yet, he can understand the basic 
character of the English way of legal thinking, he can identify himself 
with it and, above all, he can make his peace with it by retaining once 
and for all a solicitor as his legal father conFessor for all contingencies 
of life, as is indeed done by practically every English businessman. He 
simply neither demands nor expects of the law anything which could be 
frustrated by "logical" legal construction. 

Safety valves are also provided against legal formalism. As a matter 
of fact, in the sphere of private law, both Common Law and Equity are 
"formal is tic" to a considerable extent in their practical treatment. It 
could hardly be otherwise under the traditionalist spirit of the legal 
profession. But the institution of the civil jury imposes on rationality 
limit: which are not merely accepted as inevitable but are actually prized 
because of the binding force of precedent and the fear that a precedent 
might thus create "bad law" in a sphere which one wishes to keep open 
for a concrete balancing of interests. We must forego the analysis of the 
way in which this division of the two spheres of stare decisis and con- 
crete balancing of interests is actually functioning in practice. It does 
in any case represent a softening of rationality in the administration of 
justice. Alongside all this we find the still quite patriarchal, summary 
and highly irrational jurisdiction of the justices of the peace. They deal 
with the petty causes of everyday life and, as can be readily seen in 
Mendelssohn's description, they represent a kind of kadi justice which 
is quite unknown in Germany. 33 All in all, the Common Law thus 
presents a picture of an administration of justice which in the most 
.fundamental formal features of both substantive law and procedure 
differs from the structure of Continental law as much as is possible 
within a secular system of justice, that is, a system that is free from 
theocratic and patrimonial powers. Quite definitely, English law-finding 
is not, like that of the. Continent, "application" of "legal propositions" 
logically derived from statutory texts. 

These differences have had some tangible consequences both eco- 
nomically and socially; but these consequences have all been isolated 
single phenomena rather than differences touching upon the total struc- 
ture of the economic system. For the development of capitalism two 
features of Common Law have been relevant and both have helped to 
support the capitalistic system. Legal training has primarily been in the 



8 9 2 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

hands of the lawyers from among whom also the judges are recruited, 
i.e., in the hands of a grouD which is active in the service of propertied, 
and particularly capitalistic, private interests and which has to gain its 
livelihood from them. Furthermore and in close connection with this, 
the concentration of the administration of justice at the central courts 
in London and its extreme costliness have amounted almost to a denial 
of access to the courts for thos^ with inadequate means. At any rate, the 
essential similarity or the capitalistic development on the Continent 
and in England has not been able io eliminate the sharp contracts be- 
tween the two types of legn: j-" 'ems. Nor is there any visible tendency 
towards a transformation of the English legal system in the direction 
of the Continental under the impetus of the capitalist economy. On the 
contrary, wherever the two kinds of administration of justice and of 
legal training have had the opportunity to compete with one another, 
as for instance in Canada, the Common Law way has come out on 
top and has overcome the Continental alternative rather quickly. We 
may thus conclude that capitalism has not be^n a decisive factor in the 
promotion of that form ot r?ricnalization of the law which has been 
peculiar to the continental West ever since the rise of Romanist studies 
in the medieval universities. 



4. Lay Justice and Corporative Tendencies in the 
Modern Legal Profession 

Modem social development, aside from the already mentioned po- 
litical and internal professional motives, has given rise to certain other 
factors by which formal legal rationalism is being weaker ed. Irrational 
kadi justice is exercised today in criminal cases clearly and extensively 
in the "popular" justice of the jury. 8 * It appeals to the sentiments of 
the layman, who feels annoyed whenever he meets with formalism in 
a concrete case, and it satisfies the emotional demands of those under- 
privileged classes which clamor for substantive justice. 

Against this "popular justice" element of the jury system, attacks 
have been directed from two quarters. The jury has been attacked be- 
cause of the strong interest orientation of the jurors as against the tech- 
nical matter-of-factness of the specialist. Just as in ancient Rome the 
jurors' list was the object of class conflict, so today the selection of 
jurors is attacked, especially by the working class, as favoring class 
justice, upon the ground that the jurors, even though they may be 
"plebeians," are picked predominantly from among those who can aSjord 
the loss of time. Although such a test of selection can hardly he_ avoided 



viii ] _ The Formal Qualities of Modern Law 893 

entirely, it also depends, in part at least, on political considerations. 
Where, on the other hand, the jurors' bench is occupied by working- 
class people, it is attacked by the propertied class. Moreover, not only 
"classes" as such are the interested parties- In Germany, for instance, 
male jurors can practically never be moved to find a fellow male guilty 
of rape, especially where they are not absolutely convinced of the girl's 
chaste character. But in this connection we must consider that in Ger- 
many female virtue is not held in great respect anyway. 

From the standpoint of professional legal training lay justice has 
been criticized on the ground that the laymen's verdict is delivered as 
an irrational oracle without any statement of reasons and without the 
possibility of any substantive criticism. Thus one has come to demand 
that the lay judges be subjected to the control of the legal experts. 
In answer to this demand there was created "the system of the mixed 
bench, which, however, experience has shown to be a system in which 
the laymen's influence is inferior to that of the experts. Thus their 
presence has practically no more significance than that of giving some 
compulsory publicity to the deliberation of professional judges in a 
way similar to that of Switzerland, where the judges must hold their 
deliberation in full view of the public. The professional judges, in 
turn, are threatened, in the sphere of criminal law, by the overshadow- 
ing power of the professional psychiatrist, onto whom more and more 
responsibility is passed, especially in the most serious erases, and on 
whom rationalism is thus imposing a task which can by no means be 
solved by means of pure science. 

, Obviously all of these conflicts are caused by the course of technical 
and economic development only indirecdy, namely in so far as it has 
favored intellectualism. Primarily they are rather consequences of the 
insoluble conflict between the formal and the substantive principles of 
justice, which may clash with one another even where their respective 
protagonists belong to one and the same social class. Moreover, it is by 
' no means .certain that those classes which are negatively privileged 
today, especially' the working class, may safely expect from an informal 
administration of justice those results which are claimed for it by the 
ideology of the jurists. A bureaucratized judiciary, which is being 
planfully recruited in the higher ranks from among the personnel of 
the career service of the prosecutor's office and which is completely 
dependent on the politically ruling powers for advancement, cannot 
be set alongside the Swiss or English judiciary, and even less the 
(Federal) judges in the United States. If one takes away from such 
judges their belief in the sacredness of the purely objective legal formal- 
ism and directs them simply to balance interests, the result will he 



894 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

very different from those legal systems to which we have just referred. 
However, the problem does not belong to this discussion. There re- 
mains only the task of correcting a few historical errors. 

Prophets are the only ones who have taken a really consciously 
"creative" attitude toward existing law; only through them has new 
law been consciously created. For the rest, as must be stressed again 
and again, even those jurists who, from the objective point of view, 
have been the most creative ones, have always and not only in modern 
times, regarded themselves to be but the mouthpiece of norms already 
existing, though, perhaps, only latently, and to be their interpreters or 
appliers rather than their creators. This subjective belief is held by even 
the most eminent jurists. It is due to the disillusionment of the intel- 
lectuals that today this belief is being confronted with objectively dif- 
ferent facts and that one is trying to elevate this state of facts to the 
status of a norm for subjective judicial behavior. As the bureaucratiza- 
tion of formal legislation progresses, the traditional position of the Eng- 
lish judge is also likely to be transformed permanently and profoundly. 
On the other hand, it may be doubted whether, in a code country, the 
bestowal of the "creator's" crown upon bureaucratic judges will really 
turn them into law prophets. In any case, the juristic precision of ju- 
dicial opinions will be seriously impaired if sociological, economic, or 
ethical argument were to take the place of legal concepts. 

All in all the movement is one of those characteristic reactions 
against the dominance of "specialization" and rationalism, which latter 
has in the last analysis been its very parent. The development of the 
formal qualities of the law certainly shows some peculiarly antinomta!* 
traits. Rigorously formalistic and dependent on what is tangibly per- 
ceivable as far as it is required for security to do business, the law has at 
the same time become informal for the sake of business good-will where 
this is required by the logical interpretation of the intention ot the parties 
or by the "good usage" of business intercourse, interpreted as some "ethical 
minimum." 

The law is drawn into antiformal directions, moreover, by all those 
powers which demand that it be more than a mere means of pacifying 
conflicts of interest. These forces -include the demand for substantive 
justice by certain social class interests and ideologies; they also include 
the tendencies inherent in certain forms of political authority of either 
authoritarian or democratic character concerning the ends of law which 
are respectively appropriate to them; and also the demand of the "laity" 
for a system of justice which would be intelligible to them; finally, as 
we have seen, anti-formal tendencies are being promoted by the ideo- 
logically rooted power aspirations of the legal profession itself. 



viit ] The Formal Qualities of Modern Law 8 9 5 

Whatever form law and legal practice may come to assume under 
the impact of these various influences, it will be inevitable that, as a 
result of technical and economic developments, the legal ignorance of 
the layman will increase. The use of jurors and similar lay judges will 
not suffice to stop the continuous growth of the technical elements in 
the law and hence of its character as a specialists' domain. Inevitably 
the notion must expand that the law is a rational technical apparatus, 
which is continually transformable in the light of expediential considera- 
tions and devoid of all sacredness of content. This fate may be obscured 
by the tendency of acquiescence in the existing law, which is growing 
in many ways for several reasons, but it cannot really be stayed. All of 
the modern sociological and philosophical analyses, many of which are 
of a high scholarly value, can only contribute to strengthen this im- 
pression, regardless of the content of their theories concerning the 
nature of law and the judicial process. 



NOTES 

1. These transactions, which are enumerated in Sec, 1 of the German Com- 
mercial Code of 1861/97, are the following: 

(a) purchase and resale of commodities or securities such as bonds; (b) enrer- 
prise by an independent contractor to do work on materials or goods supplied by 
the other party; (e) underwriting of insurance; (d) banking, (e) transportation 
of goods or passengers, on land, at sea, and on inland waterways; (f) transactions 
of factors, brokers, forwarding agents, and warehousemen; (g) transactions of 
commercial brokers, jobbers, and agents; (h) transactions of publishers, book and 
art dealers; (i) transactions of printers. 

1. The Cerman Commercial Code, in Sec. 2, has the following definition: 
"Any enterprise which requires an established business because of its size or be- 
cause of the manner in which it is carried on, is a commercial enterprise, even 
though it does not fail within any of the categories stated in Sec. 1," Similarly, 
the French Commercial Code of 1807 states in Art. 1: "Merchants are all those 
who carry on commercial transactions and make this activity their habit and pro- 
fession." 

3. Handelsregister (register of firms): ef. Commercial Code, Sees. 2, 5, 8, 
et se^. 

4. The most important special law of this kind is the labor law with its 
special hierarchy of labor courts- There are, furthermore, the administrative 
tribunals of general administrative jurisdiction and a set of special tribunals deal- 
ing respectively with claims arising under the social security laws or the war pen- 
sions laws, with tax matters, with certain matters of agricultural administration, 
etc. 

5. Both the commercial and the labor courts are usually oiganized in panels 
chosen from those lines of business or industry whose affairs are dealt with by the 
particular division of the court. Cf. Arbeitscehichtsgesetz of 23 December, 
1926 (R.G. Bl. I., 507), Sec. 17. 

6. In the labor courts representation by attorneys is, as a genera! rule not 



896 ECONOMY AND LAW (SOCIOLOGY OF LAw) [ Ch. Vlll 

permitted at the trial stage (Arbeitscerichtsgesetz of 23 December, 1926 
[R.G Bl. I, 507], Sec, 11). 

7. Roman-canonical procedure, as it had come to be adopted generally in the 
continental courts, was characterized by its system of "formal proof," which was in 
many respects similiar to the law of evidence of Angle-American procedure. There 
were rales about exclusion of certain kinds of evidence and, quite particularly, 
detailed rules about corroboration ani about the mechanical ways in which the 
judge had to evaluate conflicting evidence. The testimony of two credible wit- 
nesses constituted full proof (yreixwio yL&w); one credible witness made half 
proof Qprobatio semipUna), but one doubtful witness C^stis swspeciws) made less 
than half proof Cprobath semipUna miner'), etc. 

This entire system of formal proof was swept away by the procedural reforms 
of the nineteenth century and replaced by the system of free or rational proof, 
which did away with most of the exclusionary rules, released the judge from his 
arithmetical shackles, and authorized him to evaluate the evidence in the light of 
experience and reason. Cf. Enchlmann-Mti.lar 39. 

. 8. Together with the rule of stare decisis and, to some extent, the jury system, 
the fact that the Common Law has preserved a much more formalistic law of evi- 
dence is the principal cause why in such fields as torts, damages, interpretation and 
construction of legal instruments, English and American law have developed so 
much more numerous and detailed rules of law than the systems of the Civil 
Law. The comparison, for instance, of the 951 sections of the Restatement of 
Torts and the 31 sections dealing with torts in the German Civil Code (Sees. 
823-853) or the 5 sections of the French Gode (Arts. 1382-86) is revealing in 
this respect, just as is the comparison of the few sections of the German Code 
dealing with the interpretation of wills (Sees. 2087 et se<j.) with the elaborate 
treatment of the topic in American law. 

As to the law of evidence itself, compare the ten volumes of Wigmore's 
treatise (3rd ed. 1940) with the complete absence of books on evidence in 
Germany or the brief treatment of a few evidentiary problems in the French 
treatises on private law, for instance, in Josse hand's Couns de droit civil , 
positif francais (1939) where the chapter on "preuves" covers 43 pages. 
9. Cf. Hbdemann I, 117. 

10. For illustrations of this judicial attitude see the case surveys given in 
connection with Sec. 242 of the German Civil Code (good faith and fair dealing) 
or Sec. 346 of the Commercial Code ("good" custom of trade) in the annotated 
editions of these Codes. The dangers of excessive judicial resort to legal provisions 
referring the judge to such indefinite standards have been pointed out by Hedb- 
mann, Die Flucht in die Generalklaussln, Einb Gefahr fur Recht und 
Staat(i933>. 

11. The German Supreme Court has consistently maintained, however, that a 
usage is not to be considered when it is unfair, and especially when it constitutes 
a gross abuse of a position of economic power; see, for instance, 114 Entsched> 
tTNGBN des Reich scerjchts in Ztvilsachen 97; [1922] Juristischb Woch- 

BNSCHRM'T 488; [1932] O.C. 586. 

12. The possibilities of such discrepancies have been pointed out especially in 
the writings of Heck and other advocates of the "jurisprudence of interests." See 
in this respect The Jurisprudence of Interests, vol. II of this 20th Century 
Legal Philosophy Series. 

13. Such was the decision of the German Supreme Court in 29 Entschei- 
duncen des Reichsgekickts in Strafsachbn i 1 1 and 32 o.c. 165. In Sec. 242 
of the German Criminal Code larceny is defined as the unlawful taking of a 



viii ] The Formal Qualities of Modern Law 897 

chattel. Electric power is not a chattel; hence it cannot be the subject matter of 
larceny. The gap in the law was filled by the enactment of a Special Law Con- 
cerning the Unlawful Talcing of Electric Power, of 9 April 1900 (R.G. Bl. 
1900, 228), The decisions just mentioned have become the stock "horrible" in 
modern German excoriations of conceptual jurisprudence. 

14. In the years preceding the First World War the English administration of 
justice anA, particularly, the creative role and prominent position of the English 
"judicial kings" (Jtichterkonige') were highly praised and advocated for adoption, 
particularly by A. Mendelssohn Bartholdy, Imperium des Richtbrs (1908), 
and F- Adicxrs, Grundldjibn srNER durchgreifbnden Jcstizreform (1906). 

15. Das Problem des naturlichen Rechts (191 2). 

16. Expression of G. J el line k, in Die sozial-ethischh Bedeutunc von 
Rbcht, Unrecht und Strafe (2nd ec T. 1908). 

17. On Gierke as the leading legal scholar in the movement for law as an ex- 
pression of "social justice," see G. Bohmer, Ghundlacen der buhgerlichen 
Rbchtsordnunc (1951) II, 155; see, especially, Gierke's lecture on The Social 
Task of Private Law (Die soziale Aufcabe des Prtvatrechts, 1899), repr. 
E. Wolf, Dbutsches Rbchtsdenxen (1948). 

18. On the development of the doctrine of economic duress in positive Ger- 
man law, see J, Dawson, Economic Duress and the Fair Exchange in French and 

■ German Law (1937), 12 Tulane L. Rev. 42. 

, 19. In Sec. 1 38 the German Civil Code provides as follows: 

"A legal transaction which violates good morals is void. 

"Void, in particular, is any transaction in which -one party, by exploiting the 
emergency situation, the imprudence, or the inexperience of another causes such 
other person to promise or to give to him or to a third person a pecuniary benefit 
which so transcends the value of his own performance that under the circum- 
stances of the case the relationship between them appears as manifestly dispro- 
portionate." 

20. The School of Free Law (FreireckO constitutes the German counterpart 
of American and Scandinavian "realism." The basic theoretical idea of these three 
schools, viz., that law is not "found" by the judges hut "made" by them, was 
anticipated in 1885 by Oskar Billow in his Gesetz und Richteramt. The first 
attack upon the Pandectist "Konstrukrionsjurisprudenz" (conceptual jurispru- 
dence) or, in Weber's terminology, rational formalism, was made in 1848 by v. 
Kirchmann in his sensational pamphlet Ober die Wbrtlosigkeit der Juris- 
prudenz als Wissenschaft. The attack was later joined by no less a scholar 
than Jhering, who until then had been one of the most prominent expounders of 
the traditional method, but who now came to emphasize the role of the law as a 
means to obtain utilitarian ends in a way which would now be called "social 
engineering" or, in Weber's terms, "substantive rationality" (Der Zwecx im 
Recht, 1877/83; Husik's tr. s.t. Law as a Means to an End, 1913) and to 
ridicule legal conceptual ism in his Scherz und Ernst in der Jurisprudenz 
(1855', on Jhering see Stone 299), At the turn of the century the attack was 
intensified and combined with the postulates that the courts should shake off the 
technique of conceptual jurisprudence (i.e., in Weber's terminology, the tech- 
nique of rational formalism), should give up the fiction of the gaplessness of the 
legal order, should thus treat statutes and codes as ordaining nothing beyond the 
narrowest meaning of the words of the text, and should fill in the gaps thus 
created, i.e., in the great mass of problems, in a process of free, "kingly" crearive- 
ness. The leaders of this movement were E. Fuchs, a practicing attorney (princi- 
pal works; Die Gbmeinschadlichxeit der xonstriirttven Jurisprudenz 



898 ECONOMY AND LAW (SOCIOLOGY OF LAW) [ Ck. VIII 

["The Dangers of the Conceptual Jurisprudence to the Common Weal," 1909]; 
Was will die Frbtrechtsschule? ["What Are the Aims of the School of Free 
Law?" 1929]). Professor H. Kanrorowicz (writing under the pen name of Cnaeus 
Flavhis: Der Kampf um die Rechtswissenscha?t [1908]; Aus dbr Vor- 
geschichte der Frbirechtslehrb [1925]; see also the article by him and E. 
Patterson, Legal Science— a Summary of its Methodology [1928], 28 Col. L. 
Rev. 679, and Some Rationalizations about Realism [1934], 43 Yale -L.J,, 1240, 
where Kantorowicz recedes from some of his earlier theses), and the judge J. G. 
Gmelin (Quousqub? Bsitrag zur soziologischsn Rechtsfindung [19 10, 
Bruncken's transl. ki Modem Legal Philosophy Series, IX, Science of Legal 
Method (1917])- These passionate radicals were joined by E. Ehrlich, who pro- 
vided for the new movement a broad historical and sociological basis (Freie 
RscHTSFiNDtiNG um frbib Rechtswissenschaft [1903, Bruncken's transl. in 
Modem Legal Philosophy Series, IX, Science of Legal Method (1917), 47]; 
Die jwristische Logik [1918], 115 Archiv fur die civilistischb Praxis, nos. 2 
and 3, repr. as a book in 1925; and his Grundlecunc der Soziolocie des 
Rechts [1913], Moll's transl. s.t. Fundamental Principles of the Sociology 
of Law [1936]). 

The movement stirred up violent discussion (see especially H. Reichel, 
Gbsetz und Richterspruch [191 5]; G. Bohmer, Grundlagen der burger- 
lichen Rechtsordnung [1951], II, 158) and also found some attention in the 
United States. (See the translations listed above in this note.) Its exaggerations 
were generally repudiated, however, and actual developments came to be more 
effectively influenced by the ideas of the so-called school of jurisprudence of inter- 
ests, whose principal writings are collected in vol. II of this 20th Century Legal 
Philosophy Series, entitled The Jurisprudence of Interests (1948). The 
method was elaborated primarily by M. Riimelin, P. Heclc, and their companions 
at Tubingen, and R. Miiller-Erzbach, who has been working at the elaboration of 
social and concrete bases for that "balancing of interests" which the method re- 
quires (see especially Das private Recht der Mitcliedschaft als Prufstein 
Binss kausalen Rbchtsdenxens [1948] and Die Rechtswissenschaft im 
Umbau [1950]). The Jurisprudence of Interests is close to Roscoe Pound's socio- 
logical jurisprudence. It aims at replacing the system of formally rational with 
one of substantively rational concepts, and it has come to establish itself firmly in 
German legal practice (for a concise survey and evaluation see Bohmer, op. tit. 
190, and, very brief, W. Friedmann, Lecal Theory [2nd ed. 1949] 225; no 
complete survey is as yet available in English). 

The following passages in Weber's text are concerned with the School of Free 
Law. 

2 1 . "The law must be applied in all cases which come within the Iettei Or the 
spirit of its provisions. 

"Whete no provision is applicable, the judge shall decide according to the 
existing customary law and, in default thereof, according to the rule which he 
would lay down if he had himself to act as legislator. 

"Herein he must be guided by tested doctrine and tradition." 

22. Cf. I. Williams, The Sources of Law in the Swiss Civil Code 
(1923) 34; see also the discussion of this provision and the similarly worded 
Sec. 1 of the Civil Code of the Russian Federal Soviet Socialist Republic by V. E. 
Greaves, Social-economic Purpose of Private Rights (1934/5, * 2 N.Y.U.L.Q. 
Rev. 165, 439). 

23. Cf. H. Isay, Rechtsnorm und Entschbidung (1929). 

24. Cf. Ehruch, esp. chapters 5 and 6, 



viii ] - The Formal Qualities of Modern Law 899 

25. Praeter legem— alongside the (statute) law; contra legem — in contradic- 
tion to the (statute) law. 

26. So especially Lambert, op. cit. (1903); Ehrlich. 

27. In the last two sentences of the text three different phenomena are 
brought together in a way which indicates the possibility that some connecting 
link has been omitted The postulate that in statutory interpretation the judge 
has to look upon the text "objectively" as a self-sufficient entity and that he should 
not, or that he is not even allowed to, inquire into the intentions of the legisla- 
ture has not been confined to Germany. It has long been the established method 
of statutory interpretation in England and for a considerable time it was dominant 
in the United States. In Germany its principal representatives were A. Wach 
(Handbuch des Zivilproz esses [:88;]) and K. Binding (Handbuch des 
Strafrechts [1885]); see also J. Kohler, Dber die Interpretation von Gesetzen 
(1886), 13 Griinhut's Zeitschrift 1. The theory has had some influence on 
the German courts but could not prevent them in the long run from paying care- 
ful attention to parliamentary hearings and other legislative materials. 

The idea that statutes ought to be interpreted narrowly so as to leave free 
reign to free judicial law creation in the interstices constituted one of the postu- 
lates of the School of Free Law (see supra n. 20). 

The phrase that the solution of certain problems be left to "legal science and 
doctrine" recurs constantly in the report (Motive') accompanying the Draft of the 
German Civil Code. The draftsmen used it w lie never they felt that too much 
detail would be detrimental to the purposes of the codification. It is difficult to see 
what it might hav-- to do with the Free Law tenet stated in the following sentence 
of the text. 

28. Especially Victor Cathrein, Recht, Naturrecht und positives 
Recht (2nd ed. 1909): v. Hertling, Recht, Staat und Gesellschaft (4th 
ed. 1917); Mausbach, Naturrecht und Volkerrecht (1918}; more recently 
H. Rommen, D*.e ewige. Wiederkf.hr des Naturhechts (1936; Hanky's 
transl, s.t The Natural Law, 1948), and the survey of the latest Catholic lit- 
erature by i- Zeiger in (1952) 149 Stimmen der Zeit 468. 

29. On Neo-Kantianism, see Friedmann, op. cit., 91; the principal representa- 
tive is R. Stammlcr, whose Lehre von dem hiChticen Recht (1902) has been 
translated by Husik st. The Theory of Justice (1925). For a trenchant criti- 
cism, see E. Kaufmann, Kritix der neqxantischen Rechtsphilosophie 

(i9*0- 

30. The reference is to the continuation and elaboration of Jhering's ideas 
through the school of jurisprudence of interests; see supra, n. 20. 

1 31, On French legal theory, see vol. VTI of the Modern Legal Philosophy 
Series: Modern French Legal Philosophy (1916) containing writings by A. 
Fouillee, J. Charmont, L. Duguit, and R. Detnogue. A comprehensive, critical 
history is presented by J. Bonnecase, La pbnsee juridique francaisk de 1 804 
A l'heure presents (1933). Cf. also in the 20th Century Legal Philosophy 
Series, vol. IV, The Legal Philosophies of Lasx, Radbruch, and Da bin 
(1950) 227; and, for latest trends, B. Horv&th, Social Value and Reality in Cur- 
rent French Legal Thought (1952), 1 Am. J. op Compah. Law 243. 

The principal representatives of the trends mentioned by Weber are Francois 
Geny, the founder of the French counterpart to the jurisprudence of interests 
(Methods d'interphetation [1899]; cf. his article in Modern Legal Philosophy 
Series, vol. IX, Science op Legal Method [1917] 498); the sociological jurists 
Edouard Lambert (op. cit.), Leon Duguit (Lb droit social, lb droit indi- 

VIDUEL, ET LA TRANSFORMATION DE l'eTAT [1910]; L'eTAT, LE DROIT OBJECTTF 



900 ECONOMY AND LAW (SOCIOLOGY OF LAw) [Ck. Vlll 

bt la loi rosrnvB [1901]; Lee transformations gbnbralbs do droit prtve 
[rjia], transl. in Continental Legal History Series, vol. XI, s.t. The Progress 
of Continental Law in the 19TH Cenvury [1918]; Les transformations 
du droit public [1913], transl. by Laski s.t. Law in the Modern State 
[1919]), and Raymond Salbillbs (Methods bt codification [1903]; Le code 
civil et la-mithode historique in Livre du cbntsnairb du Code Civil [1904]). 
3^. Apparendy Weber was not conversant with recent common law use of the 
concept of title. In the classical form of the law of real property, it is true, the 
various ways in which one might be entitled to the use and disposition of a piece 
of land were defined by the various tenures, estates, and other rights in land 
which had come to be recognized in the royal courts of law and equity. There 
did not exist, however, any term which comprehensively covered, like the Roman, 
term dominium, the fullness of all rights, privileges, powers, and immunities, 
which can possibly exist in 3 piece of land. But in modem usage the terms of 
title, fee, or fee title, are generally used in exactly this sense, especially in the 
United States. 

33. Das Jitfperium des Ricftters (1908). 

34. Written before the abolition of the jury in Germany by the Law of 
1924; see i«fra, ch. XI:6. 



\1 



CHAPTE 



. IX 



POLITICAL COMMUNITIES 



i , Nature and "Legitimacy" of Territorial Political 
Organizations 

The term "political community" shall apply to a community whose 
social action is aimed at subordinating to orderly domination by the 
participants a "territory" and the conduct of the persons within it, 
through readiness to resort to physical force, including normally force 
of arms. The territory must at any time be in some way determinable, 
but it need not be constant or definitely limited. The persons are those 
who are in the territory either permanendy or temporarily. Also, the 
aim of the participants may be to acquire additional territory for them- 
selves. 1 

"Political" community in this sense has existed neither everywhere 
nor always. As a separate community it does not exist wherever the 
task of armed defense against enemies has been assigned to the house- 
hold, the neighborhood association, or some association of a different 
kind and essentially oriented toward economic interests. Nor has po- 
, Iitical community existed everywhere and at all times in the sense that 
its conceptual minimum, viz., "forcible maintenance of orderly dominion 
over a territory and its inhabitants," he conceived necessarily as the func- 
tion of one and the same community. The tasks implied in this function 
have often been distributed among several communities whose actions 
partly complement and partly overlap each other. For example, "ex- 
ternal" violence and defense have often been in the hands partly of 
kinship groups, partly of neighborhood »ssociations, and partly of war- 
rior consociations established ad hoc. "Internal" domination of the "ter- 
ritory" and the control of intragroup relations have likewise been dis- 
tributed among various powers, including religious ones; and even in so 

[901] 



9 o 2 *>oi.rncAL communities [ Ch. IX 

far as violence hns been used it has not necessarily been monopolized 
by any one community. Under certain circumstances, "external" vio- 
lence can even "be rejected in principle, as it was, for a while, by the 
community of the Pennsylvania Quakers; at any rate, organized prepa- 
ration for its use may be entirely lacking. As a rule, however, readiness 
to apply violence is associated with domination over a territory. 

As a separate structure, a political community can be said to exist 
only if, and in so far as, a community constitutes more than an "eco- 
nomic group"; or, in other words, in so far as it possesses value systems 
ordering matters other than the directly economic disposition of goods 
and services. The particular content of social action, beyond the forcible 
domination of territory and inhabitants, is conceptually irrelevant. It 
may vary greatly according to whether we deal with a "robber state," 
a "welfare" state," a "constitutional," or a "eaiEiire" state. Owing to the 
drastic nature of its means of control, the political association is pa.r 
iculariy capable of arrogating to itself all the possible values toward 
which associational conduct might be oriented; there is probably nothing 
in the world which at one time or another has not been an object of 
social action on tht: part of some political association. 

On the other hand, z political community may restrict its social 
action exclusively to the bare maintenance of its dominion over a 
territory, and it has in tact done so frequently enough. Even in the 
exercise of this function, the action of a political community is, in many 
cases, intermittent, no matter what its general level of development 
may be in other respects. Such action flares up in response to external 
threat or to an internal sudden impulse to violence, however motivated; 
it dies down : yielding factually to a state of "anarchy" during "normal" 
peaceful times, when coexistence and social action on the part of the 
inhabitants of the territory take the form of merely factual mutual re- 
spect for the accustomed economic spheres, without the availability of 
any kind of coercion either for external or for internal use. 

In our terminology, a separate "political" community is constituted 
where we find ( i ) a "territory"; (2) the availability of physical force 
for its domination; and (3) social action which is not restricted exclu- 
sively to the satisfaction of common economic needs in the frame of a 
communal economy, but regulates more generally the interrelations of 
the inhabitants of the territory. 

The opponents against whom the possibly violent social action is 
directed may be located outside or inside the boundaries of the territory 
in question. Since the political power has become the monopoly of organ- 
ized, today "institutional," action, the objects of coercion are to be 
found primarily among the compulsory members of the organization. 



i ] Territorial Political Organizations 9 o 3 

For the political community, even more than other institutionally 
organized communities, is so constituted that it imposes obligations on 
the individual members which many of them fulfill only because they 
are aware of the probability of physical coercion backing up such obli- 
gations. The political community, furthermore, is one of those com- 
munities whose action includes, at least under normal circumstances, 
coercion through jeopardy and destruction of life and freedom of move- 
ment applying to outsiders as well as to the members themselves. The 
individual is expected ultimately to face death in the group interest. 
This gives to the political community its particular pathos and raises 
its enduring emotional foundations. The community of political destiny, 
i.e., above all, of common political struggle of life and death, has given 
rise to groups with joint memories which often have had a deeper im- 
pact than the ties of merely cultural, linguistic, or ethnic community. 
It is this "community of memories" which, as we shall see [see sec. 5 
below], constitutes the ultimately decisive element of "national con- 
sciousness." 

The political community never has been, nor is it today, the only 
community in which the renunciation of life is an essential part of the 
shared obligations. The obligations of other group may lead to the same 
extreme. consequences. To name but a few: blood vengeance on the 
part of kinship groups; martyrdom in religious communities; the "code 
of honor" of status groups; or the demands of a good many athletic 
associations; of groups like the Camorra 2 or, especially, of all groups 
created for the purpose of violent appropriation of the economic goods 
of others. 

From such groups the political community differs, sociologically, 
in only one respect, viz., its particularly enduring and manifest existence 
as a well-established power over a considerable territory of land and 
possibly also sea expanse. Accordingly, the differentiation between the 
political community on the one hand and, on the other, the groups 
enumerated above, becomes less clearly perceptible the further we go 
back in history. In the minds of the participants the notion mat the 
political community is just one among others turns into the recognition 
of its qualitatively different character in step with the change of its 
activities from merely intermittent reaction to active threats into a 
permanent and institutionalized consociation whose coercive means are 
both drastic and effective but which also create the possibility of a 
rationally casuistic order for their application. 

The modem position of political associations rests on the prestige 
bestowed upon them by the belief, held by their members, in a specific 
consecration: the "legitimacy" of that social action which is ordered 



904 POLITICAL COMMUNriTES [ Cfc, IX 

and regulated by them. This prestige is particularly powerful where, 
and in so far as, social action comprises physical coercion, including 
the power to dispose over life and death. It is on this prestige that the 
consensus on the specific legitimacy of action is founded. 

The belief in the specific legitimacy of political action can, and 
under modem conditions actually does, increase to a point where only 
certain political communities, viz., the "states," are considered to he 
capable of "legitimizing," by virtue of mandate or permission, the exer- 
cise of physical coercion by any other community. For the purpose of 
threatening and exercising such coercion, the fully matured political 
community has developed a system of casuistic rules to which that par- 
ticular "legitimacy" is imputed. This system of rules constitutes the. 
"legal order," and the political community is regarded as its sole normal 
creator, since that community has, in modern times, normally usurped 
the monopoly of the power to compel by physical coercion respect for 
those rules. 

This preeminence of the 'legal order" guaranteed by the political 
power has arisen only in the course of a very gradual development. It was 
due to the fact that those other groups which once had exercised their own 
coercive powers lost their grip on the individual. Under the pressure 
of economic and structural displacements they either disintegrated or 
subjected themselves to the political community which would then 
delegate to them their coercive powers, but would simultaneously also 
reduce them. 

The rise to preeminence of the politically guaranteed legal order was 
also due to the simultaneous development of constantly arising new 
interests requiring a protection which could not be provided within the 
earlier autonomous communities. Consequendy, a steadily widening 
sphere of interests, especially economic ones, could find adequate pro- 
tection only in those rationally regulated guaranties which none but 
the political community was able to create. The process by which this 
"nationalization" of all "legal norms" took place, and is still taking place, 
has been discussed elsewhere. 1 



2. Stages in the Formation of Political Association 

Violent social action is obviously something absolutely primordial. 
Every group, from the household to the political party, has always 
resorted to physical violence when it had to protect the interests of its 
members and was capable of doing so. However, the monopolization 
of legitimate violence by the political-territorial association and its 



2 ] _ Stages in the Formation of Political Association 9 o 5 

rational consociation into an institutional order is nothing primordial, 
but a product of evolution. 

Where economic conditions are undifferentiated, it is hardly possible 
to discern a special political community. As we consider them today, 
the basic functions of the "state" are: the enactment of law (legislative 
function); the protection of personal safety and public order (police); 
the protection of vested rights (administration of justice); the cultiva- 
tion of hygienic, educational, social-welfare, and other cultural interests 
(the various branches of administration); and, last but not least, the 
organized armed protection against outside attack (military adminis- 
tration). These basic functions are either totally lacking under primitive 
conditions, or they lack any form of rational order. They are per- 
formed, instead, by amorphous ad hoc groups, or they are distributed 
among a variety of groups such as the household, the kinship group, 
the neighborhood association, the rural commune, and completely 
voluntary associations formed for some specific purpose. Furthermore, 
private association enters domains of action which we are used to regard 
exclusively as the sphere or political associations. Police functions are 
thus performed in West Africa by private secret societies.* Hence one 
cannot even include the maintenance of internal peace as a necessary 
component of the general concept pf political action. 

If the idea of a specific legitimacy of violence is connected with any 
particular type of consensual action, it is with that of the kinship group 
in the fulfillment of the obligation of blood vengeance. This connection 
is weak, on the other hand, with regard to organizational action of a 
military type, directed against an external enemy, 01 of a police type, 
directed against the disturbers of internal order. It becomes more 
clearly perceptible where a territorial association is attacked by an 
external enemy in its traditional domain, and arms are taken up by the 
members in the manner of a home guard. Increasing rational precau- 
tions again t such eventualities may engender a political organization 
regarded as enjoying a particular legitimacy. Such an organization can 
emerge as soon as there exists a certain stability of usages as well as at 
least a rudimentary corporate apparatus, ready to take precautions 
against violent attack from without. This; however, represents a fairly 
advanced stage. 

The fact that "legitimacy" originally had little bearing upon vio- 
lence — in die seme that it was not bound by norms— can be observed 
even more clearly in situations where the most warlike members of 
a group on their own initiative consociate through personal fraterniza- 
tion to organize marauding raids. This has been, at all stages of eco- 
nomic development up to the formation of the rational state, the typical 



9 O 6 POLITICAL COMMUNITIES [ Ck. IX 

way in which aggressive ware were initiated in sedentary societies. The 
freely selected leader is then normally legitimated by his personal qual- 
ities (charisma), and we have discussed elsewhere the kind of structure 
of domination which then emerges. Violence acquires legitimacy only 
in those cases, however — at least' initially — in which it is directed 
against members of the fraternity who have acted treasonably or who 
have harmed it by disobedience or cowardice. This state is transcended 
gradually, as this ad hoc consociation develops into a permanent struc- 
ture. Through the cultivation of military prowess and war as a vocation 
such a structure develops into a coercive apparatus able to lay effective 
and comprehensive claims to obedience. These claims will be directed 
against the inhabitants of conquered territories as well as against the 
militarily unfit members of the territorial community from which the 
warriors' fraternity has emerged. The bearer of arms acknowledges only 
those capable of bearing arms as political equals. All others, those un- 
trained in arms and those incapable of bearing arms, are regarded as 
women and are explicitly designated as such in many primitive 1 lan- 
guages. Within these consociations of warriors freedom is identical with 
die right to bear arms. The men's house, which has been studied by 
Schurtz with so much sympathetic care, and which, in various forms, 
recurs in all parts of the world, is one of those structures resulting 
eventually from such a consociation of warriors, or, in Schurtz's termi- 
nology, a "men's league." In the sphere of political action — assuming 
a highly developed profession of warriors — it is the almost exact coun- 
terpart to the consociation of monks in the monastery in the religious 
sphere. Only those are members who have demonstrated prowess in 
the use of arms and have been taken into the warriors' brotherhood after 
a novitiate, while he who has not passed the test remains outside as a 
"woman," -among the Women and children, who are also joined by 
those no longer capable of bearing arms. The man enters a family 
household only when he has reached a certain age, a change in status 
analogous to the present-day transfer to the reserves after service as a 
draftee. Until that moment the man belongs to the warriors' fraternity 
with every fiber of his existence. The members of the fraternity live, 
as a communistic association, apart from wives and households. They 
live on war booty and on the contributions they levy on non-members, 
especially on the women by whom the agricultural work is done. The 
only work, in addition to the conduct of war, regarded as worthy of 
them is the production and upkeep of the implements of war, which 
they frequently reserve for themselves as their exclusive privilege. 

Depending on the social regulations in question, the warriors steal 
or purchase girls in common, or demand as their right the prostitution 



2 ] Stages in the Formation of Political Association 907 

of all the girls of the territory dominated. The numerous traces of 
so-called premarital promiscuity, which so often are taken for residues 
of primitive, undifferentiated, endogamous sexual habits, would rather 
1 seem to be connected with this political institution of the men's house. 
In other cases, as in Sparta, each member of the warrior fraternity had his 
wife and children living outside as maternal groups. In most cases, the two 
forms appear in combination with one another. 

In order to secure their economic position, which is based on the 
continuous plundering of outsiders, especially women, the consociated 
warriors resort under certain circumstances to the use of religiously 
colored means of intimidation. The spirit manifestations which they 
stage with masked processions very often are nothing but plundering 
campaigns which require for their undisrupted execution that, on the 
first sound of the tom-tom, the women and all outsiders flee, on pain of 
instant death, from the villages into the woods and thus allow the 
"spirits" conveniendy and without danger of being unmasked to take 
from the houses whatever may please them. The well-known procession 
of the Duk-Duks in Indonesia is an example in point. 

Obviously, the warriors do not believe at all in the legitimacy of 
their conduct. The crude and simple swindle is recognized by them as 
such and is protected by the magical prohibition against entry into the 
men's house by outsiders and by the draconic obligations of*silence 
which are imposed upon the members. The prestige of the men's league 
comes to an end, as far as the women are concerned, when the secret 
is broken by indiscretion or, as has happened occasionally, when it is 
intentionally unveiled by missionaries. It goes without saying that such 
activities, like all uses of religion for black police purposes, are linked 
to popular cults. But despite its own disposition towards magical super- 
stition, the warrior society remains specifically earthly and oriented 
towards robbery and booty, and thus it functions as an agent of skepti- 
cism vis-a-vis popular piety. At all stages of evolution it treats the gods 
' and spirits with that disrespect with which the Homeric warrior society 
treated Olympus. 

Only when the warrior group, consociated freely beyond and above 
the everyday round of life, is, so to speak, fitted into a permanent 
territorial community, and when thereby a political organization is 
formed, do both obtain a specific legitimation for the use of violence. 
This process, where it takes place at all, is gradual. The larger com- 
munity, among whose members are the warriors who had so far been 
organized as marauders or as a permanent warriors' league, may acquire 
the power to subject the freely consociated warriors' raids 10 its control. 
It may achieve this success through either of two processes: the warriors' 



9 O 8 POLITICAL COMMUNITIES [ Ck. IX 

organization may disintegrate owing to a long period of pacification; 
01 a comprehensive political consociation may be imposed either auton- 
omously or heteronomously. The larger community will be interested 
in obtaining such control because all of its members may have to suffer 
from the reprisals against the warriors' raids. An illustration of success- 
ful acquisition of such control is presented by the suppression by the 
Swiss of the practice of their young men to hire out as soldiers to for- 
eign powers. 5 

Such control over trie booty campaigns was already exercised in 
early Germanic history by the political community of the districts 
(Landsgemeinde). If the coercive apparatus is strong enough, it will 
suppress private violence in any form. The effectiveness of this suppres- 
sion rises with the development of the coercive apparatus into a perma- 
nent structure, and with the growing interest in solidarity against out- 
siders. Initially it is directed only against those forms of private violence 
which would injure direct]^ the military interests of the political com- 
munity itself. Thus in die thirteenth century the French monarchy 
suppressed the feuds of th?. royal vassals for the duration of a foreign 
war conducted by the king himself. Subsequently, it engenders, more 
generally, a form of permanent public peace, with the compulsory sub- 
mission of all disputes to the arbitration of the judge, who transforms 
blood vengeance into rationally ordered punishment, and feuds and 
expiatory actions into rationally ordered legal procedures. 

Whereas in early times sven actions which were openly recognized 
as felonious were not proceeded against by the organized community* 
except upon pressure on the part of religious or military interests, now 
the prosecution of an ever widening sphere of injuries to persons and 
property is being placed under the guaranty of the political coercive 
apparatus. Thus the political community monopolizes the legitimate 
application of violence for its coercive apparatus and is gradually trans- 
formed into an institution for the protection of rights. In so doing it 
obtains a powerful and decisive support from all those groups which 
have a direct or indirect economic interest in the expansion of the 
market community, as well as from the religious authorities. These 
latter are best able to control the masses under conditions of increasing 
pacification. Economically, however, the groups most interested in paci- 
fication are those guided by market interests, especially the burghers 
of the towns, as well as all those who are interested in river, road, or 
bridge tolls and in the tax-paying capacity of their tenants and subjects. 
These interest groups expand with an expanding money economy. Even 
before the political authority imposed public peace in its own interest, 
it was they who, in the Middle Ages, attempted, in cooperation with 



2 ] Stages in the Formation of Political Association 90 9 

the church, to limit feuds and to establish temporary, periodical, or 
permanent leagues for the maintenance of public peace (L««<£frte&»s- 
hiinde). And as the expansion of the market disrupted the monopolistic 
organizations and led their members to the awareness of their interests 
in the market, it cut out from under them the basis of that community 
of interests on which the legitimacy of their violence had developed. 
The spread of pacification and the expansion of the market thus consti- 
tute a development which is accompanied, along parallel lines v by CO. 
that monopolization of legitimate violence by the political organization 
which finds its culmination in the modem concept of the state as the 
ultimate source of every kind of legitimacy of the use of physical force; 
and (2) that rationalization of the rules of its application which has 
come to culminate in the concept of the legitimate legal order. 

[Excoksus:] We cannot deal with the interesting, but hitherto 
imperfectly developed, typology of the various stages in the development 
of primitive political organization. 6 Even under conditions of a relatively 
advanced property system, a separate political organization and all its 
organs can be completely lacking. Such, for instance, was, according 
to Wcllliausen, 7 the situation among the Arabs during their "pagan" 
age. Beyond the kinship groups with their elders (sheiks'), they did not 
recognize any extra-familial permanent authority. The free community 
of nomads, tenting, wandering, and herding together, which arose out 
of the need for security, lacked any special organs and was essentially 
unstable, and whatever :i>Jthority it accepted in the event of a conflict 
with outside enemies was only of an intermittent character. 

Such a situation can continue for very long periods of time and 
under any type of economic organization. The only regular, permanent 
authorities are the family heads, the elders of the kinship groups, and, 
besides them, the magicians and diviners. Whatever disputes arise be- 
tween kinship groups ?re arbitrated by the elders with the aid of the 
magicians. This situation corresponds to the form of economic life of the 
Bedouins. But, like the latter, it is nothing primordial. Wherever the 
type of settlement creates economic needs which require permanent and 
continuous provision beyond that which the kinship group and house- 
hold can provide, the institution of village chieftain arises. The village 
chieftain frequently emerges from among the magicians, especially the 
rainmakers, or he is an especially successful leader of marauding raids. 
Where the appropriation of property has reached an advanced stage, 
the position or chieftain becomes easily accessible to any man distin- 
guished by his wealth and the corresponding standard of living. But 
he cannot exercise real authority except in situations of emergency and 
even then exclusively upon the basis of some purely personal qualities 



9 I O POLITICAL COMMUNITIES [ Ch. IX 

of some magical or similar kind. Otherwise, especially under conditions 
of continuous peace, he is no more than a popular arbitrator and his 
directions are followed as statements of good advice. The total absence 
of any such chieftain is by no means a rare occurrence in peaceful 
periods. The consensual action of neighbors is then regulated merely by 
the respect for tradition, the fear of blood vengeance and the wrath 
of magical powers. In any case, however, the functions of the peacetime 
chieftain are in substance largely economic, such as the regulation of 
tillage, and, occasionally, magico-therapeutic or arbitrational. But, in 
general, there is no fixed type. Violence is legitimate only when it is 
applied by the chieftain, and only in those manners and cases in which 
it is sanctioned by fixed tradition. For its application the chieftain has 
to rely upon the voluntary aid of the members of the group. The more 
magical charisma and economic eminence he possesses, the more he is 
in a position to obtain that aid. 



3 . Power Prestige and the "Great Powers" 

All political structures use force, but they differ in the manner in 
which they use or threaten to use it against other political organizations. 
These differences play a specific role in determining the form and 
destiny of political communities. Not all political structures are equally 
"expansive." They do not all strive for an outward expansion of their 
power, or keep their force in readiness for acquiring political power 
over other territories and communities by incorporating them or making 
them dependent. Hence, as structures of power, political organizations 
vary in the extent to which they are turned outward. 

The political structure of Switzerland is "neutralized" through a col- 
lective guarantee of the Great Powers. For various reasons, Switzerland 
is not very strongly desired as an object for incorporation. Mutual jeal- 
ousies existing among neighboring communities of equal strength pro- 
tect it from this fate. Switzerland, as well as Norway, is less threatened 
than is the Netherlands, which possesses colonies; and the Netherlands 
is less threatened than Belgium, which has precarious colonial poses- 
sions and is herself threatened in case of war between her powerful 
neighbors. Sweden too is quite exposed. Thus, the attitude of political 
structures towards the outside may be more "isolationist" or more "ex- 
pansive." And such attitudes change. The power of political structures 
has a specific internal dynamic. On the basis of this power, the mem- 
bers may pretend to a special "prestige," and their pretensions may 
influence the external conduct of the power structures. Experience 



3 ] Power Prestige and the "Great Powers" 9 1 1 

teaches mat claims to prestige have always played into the origin of 
wars. Their part is difficult to gauge; it cannot be determined in gen- 
eral, but it is very obvious. The realm of "honor," which is comparable 
to the "status order" within a social structure, pertains also to the 
interrelations of political structures. 

Feudal lords, like modern officers or bureaucrats, are the natural and 
primary exponents of this desire for power-oriented prestige for one's 
own political structure. Power for their political community means 
power for themselves, as well as the prestige based on this power. For 
the bureaucrat and the officer, an expansion of power means more 
office positions, more sinecures, and better opportunities for promotion. 
(For the officer, this last may be the case even in a lost war.) For the 
feudal vassal, expansion of power means the acquisition of new objects 
for infeudation and more provisions for his progeny. In his speech 
promoting the crusades, Pope Urban focused attention on these op- 
portunities and not, as has been said, on overpopulation. 

Besides and beyond these direct economic interests, which naturally 
'exist everywhere among strata living off the exercise of political power, 
the striving for prestige pertains to all specific power structures and hence 
to all political structures. This striving is not identical simply with "na- 
tional pride" — of this, more later — and it is not identical with the mere 
pride in the excellent qualities, actual or presumed, of one's own po- 
litical community or in the mere possession of such a polity. Such pride 
can be highly developed, as is the case ::mnng the Swiss and the Nor- 
wegians, yet it may actually be strictly isola delist and free from preten- 
sion to political prestige. 

The prestige of powe T means in practice me glory of power over 
othei communities; it means the e.-<pansi<Ki of power, though not al- 
ways by way of incorpor^T. or subjection- The big political com- 
munities are the natural exponents of such pretensions to prestige. 

Every political structure naturally prefers to have weak rather than 
strong neighbors. Funhermore, as every big political community is a 
potential aspirant to prestige, it is also a potential threat to all its neigh- 
bors; hence, the big political community, s>mply because it is big and 
strong, is latently and constandy endangered. Finally, by virtue of an 
unavoidable "dynamic of power," wherever claims to prestige flame 
up — and this normally results from an acute political danger to peace 
— they challenge and call forth the competition of all other possible 
bearers of prestige. The history of the last decade [1900-1910], espe- 
cially the relations between Germany and France, shows the prominent 
effect of this irrational element in all political foreign relations. The 
sentiment of prestige is able to strengthen the ardent belief in the actual 



9 r 2 POLITICAL COMMUNITIES [ Ch. IX 

existence of one's own might, and this is important for positive self- 
assurance in case of conflict. Therefore, all those having vested interests 
in the political structure tend systematically to cultivate this prestige 
sentiment. 

Nowadays one-usually refers to those polities diat appear to be the 
bearers of power prestige as the "Great Powers." Among a plurality 
of co-existing polities, some, the Great .Powers, usually ascribe to them- ' 
selves and usurp an interest in political and economic processes over a 
wide orbit. Today such orbits encompass the whole surface of the planet. 
During Hellenic Antiquity, the "King," that is, the Persian king, de- 
spite his defeat, was the most widely recognized Great Power. Sparta 
turned to him in order to impose, with his sanction, the King's Peace 
(Peace of Antalcidas) upon the Hellenic world [387 B.C.], Later on, 
before the establishment of an empire, the Roman polity assumed such 
a role. However, for general reasons of "power dynamics," the Great 
Powers are very often expansive powers; that is, they are associations 
aiming at expanding the territories of their respective political com- 
munities by the use or the threat of force. Yet Great Powers arc not 
necessarily and not always oriented towards expansion. Their attitude 
in this respect often changes, and in these changes economic factors 
play a weighty part. 

For a time British policv, for instance, quite deliberately lemmciated 
further political expansion. It ■ vsnounced even the retention of colonies 
by means of force in favor of 9 "little England'' policy, resting upon an 
isolationist limitation and n r?H;;nce on an economic primacy held to be 
unshakable. Influential representatives of the Roman rule by notables 
would have liked to carry through a similar program of a "little Rome" 
after the Punic Wars, to restrict Roman political subjection to Italy 
and the neighboring islands. The Spartan aristocrats, so far as they 
were able, quite deliberately limited their political expansion for the 
sake of isolation. They restricted themselves to the smashing of all 
other political structures that endangered their power and prestige. They 
favored the particularism of city states. Usually, in such cases, and in 
many similar ones, the ruling groups of notables (the Roman nobility 
of office, the English and other liberal notables, the Spartan overlords) 
harbor more or less distinct fears lest a perpetual "imperialism" produce 
an "imperator," that is, a charismatic warlord, who might gain the 
ascendancy at their expense. However, like the Romans, the British, 
after a short time, were forced out of their policy of self-restraint and 
pressed into political expansion. This occurred, in part, through capital- 
ist interests in expansion. ■ ' * 



4 ] The Economic Foundations of "Imperialism' 9 1 3 

4. The Economic Foundations of "Imperialism" 

One might be inclined to believe that the formation as well as the 
expansion of Great Power structures is always and primarily determined 
economically. The assumption that trade, especially if it is intensive and 
if it already exists in an area, is the normal prerequisite and the reason 
for its political unification might readily be generalized. In individual 
cases this assumption does actually hold- The example of the Zollverein* 
lies close at hand, and there are numerous others. Closer attention, how- 
ever, very often reveals that this coincidence is not a necessary one, and 
that the causal nexus by no means always points in a single direction. 

Germany, for instance, has been made into a unified economic ter- 
ritory, that is one whose inhabitants seek to sell their products primarily 
in their own market, only through custom frontiers at her borders, 
which were determined in a purely political manner. Were all custom 
barriers eliminated, the economically determined market for the Eastern 
German cereal surplus, poor in gluten, would not be Western Germany 
but rather England. The economically determined market of the min- 
ing products and the heavy iron goods of Western Germany is by no 
means Eastern Germany; and Western Germany is not, in the main, the 
economically determined supplier of the industrial products for East- 
em Germany, Above all, the interior lines of communications (rail- 
roads) of Germany would not be — and, in part, are not now — eco- 
nomically determined routes for transporting heavy goods between east 
and west. Eastern Germany, however, would be the economic location 
for strong industries, the economically determined market and hinter- 
land for which would be the whole of Western Russia. Such industries 
are now cut off by Russian custom barriers and have been moved to 
Poland, directly behind the Russian custom frontier. Through this de- 
velopment, as is known, the political Anschluss of the Russian Poles to 
the Russian imperial idea, which seemed to be politically out of the 
question, has been brought into the realm of possibility. Thus, in this 
case, purely economically determined marKet relations have a politically 
unifying effect. 

Germany, however, has been politically united against the economic 
determinants as such. It is not unusual for the frontiers of a polity to 
conflict with the mere geographically given conditions of economic loca- 
tion; the political frontiers may encompass areas that, in terms of eco- 
nomic factors, strive to separate. In such situations, tensions among 
economic interests nearly always arise. However, if the political bond is 
once created, it is very often, so incomparably stronger that under other- 
wise favorable conditions (e.g. the existence of a common language) 



Q I 4 POLITICAL COMMUNITIES [ Ck. IX 

nobody would even think of political separation because of such eco- 
nomic tensions. This applies, for instance, to Germany. 

[Excursus:] Empire formation does not always follow the routes of 
export trade, although nowadays we are inclined to see things in this 
imperialist way. As a rule, the "continental" imperialism — Russian, and 
American — just like the "overseas imperialism" of the British and of 
those modeled after it, follow the tracks of previously existing capitalist 
interests, especially in foreign areas that are politically weak. And of 
course, at least for the formation of great overseas dominions of the 
past — in the overseas empires of Athens, Carthage, and Rome — export 
trade played its decisive part. 

Yet, even in these ancient polities other economic interests were at 
least of equal and often of far greater importance than were commercial 
profits: ground rents, farmed-out taxes, office fees, and similar gains 
were especially desired. In foreign trade, in turn, the interest in selling 
definitely receded into the background as a motive for expansion. In the 
age of modem capitalism the interest in exporting to foreign territories 
is dominant, but in the ancient states the interest was rather in the pos- 
session of territories from which goods (raw materials) could be im- 
ported. 

Among the great states that have formed on the inland plains, the 
exchange of goods played no regular or decisive part. The trading of 
goods are most relevant for the river-border states of the Orient, espe- 
cially for Egypt; that is, for states that in this respect were similar to 
overseas states. The "empire" of the Mongols, however, certainly did 
not rest on any intensive trade in goods. There, the mobility of the ruling 
stratum of horsemen made up for the lack of material means of com- 
munication and made centralized administration possible. Neither the 
empires of China, Persia, or Imperial Rome after its transformation 
from a coastal to a continental empire, were originated or maintained 
on the basis of a pre-existing and a particularly intensive inland traffic 
in goods or highly developed means of communication. The continental 
expansion of Rome was undoubtedly very strongly determined by 
capitalist interests; and these interests were above all the interests of 
tax-farmers, office hunters, and land speculators. They were not, in the 
first place, the interests of groups pursuing a particularly intensive trade 
in goods. 

The expansion of Persia was not in any way served by capitalist 
interest groups. Such groups did not exist there as motivating forces or 
as pace-makers, and just as little did they serve the founders of the Chi- 
nese empire or the founders of the Carolingian monarchy. 

Of course, even in these cases, the economic importance of trade was 



4 ] - ike Economic Foundations of "Im-perialism" 9 1 5 

not altogether absent; yet other motives have played their part in every 
political "veriand expansion of the past, including the Crusades, These 
motives hiive included the interest in higher royal incomes, in prebends, 
fiefs, offices, and social honors for the vassals, knights, officers, officials, 
the younger sons ot hereditary officeholders, and so on. The interests of 
trading seaports have not, of course, been so decisive, although they were 
important as secondary factors: the first Crusade was mainly an overland 
campaign. 

By no means has trade always pointed the way for political expan- 
sion- Hie causa] nexus has very often beep the reverse. Among the em- 
pires named above, (hose i-vhich had an administration technically able 
to establish at least overland means of communication did so for ad- 
ministrative purposes. In principle, this b^s often been the exclusive pur- 
pose, regardless of whether or not the means of communication were 
advantageous for existing or future trading needs. 

Under presenf-day conditions, Russia may welt be considered a coihj- 
t try whose means of communication ("railroads today) have been pri- 
marily determined politically. The Austrian southern railroad- is another 
example. (Its shaic? are still called ")ombards," a term loaded with 
political reminiscences.) And there is hardly a polity without "strategic 
railroads." Nevertheless, many projects of this kind have ben under- 
taken with the concomitant expectation of a traffic guaranteeing long- 
run profitableness. It was no different in the past-. On the one hand, it 
cannot be proved that the ancient Roman military highroads served a 
commercial purpose; and. it certainly w:>s not the case for the Persian 
and Roman mail posts, which served exclusively political purposes; on 
the other, the development ol trade in the past has of course been the 
normal result of political unification. Political unification first placed 
trade upon an assured and guaranteed legal basis. Even this rule, how- 
ever, is not without exceptions. For, besides depending on pacification 
and formal guarantees of law enforcement, the development of trade has 
been bound to certain economic conditions (especially the development 
of capitalism). Moreover, the evolution of capitalism may be strangled 
by the manner in which a unified political structure is administered. 
This was the case, for instance, in the Lite Roman Empire. Here a uni- 
"fied structure took the place of a league of city states; it was based 
upon a strong subsistence agrarian economy. This increasingly made for 
liturgies as the way of raising the means for the army and the administra- 
tion; and these directly suffocated capitalism. 8 [End of Excursus.] 

If trade in itself is by no means the decisive factor in political ex- 
pansion, the economic structure in general does co-determine the extent 
and manner of political expansion. Besides women, catde, and slaves, 



9 I 6 POLITICAL COMMUNITIES [ Ck. IX 

scarce land is one of the original and foremost objects of forceful ac- 
quisition. For conquering peasant communities, the natural way is to 
fake the land directly and tc wipe out its settled population. The 
Teutonic Migration has, en the whole, taken this course only to a 
moderate degree. As a compact mass, this movement probably went 
somewhat beyond the present linguistic frontiers, but only in scattered 
zones. How far a land scare* ty, caused by overpopulation, contributed, 
how far the political prcsf-.re ;;f other tribes, or simply good opportuni- 
ties, must be left open. In any case, for a long time some of the individ- 
ual groups who went out for . o infest r eserved their ciaims to the arable 
land back home,, in case they shouia return. 

In other than peasant c.o;nm unities, too, the more or less violently 
taken lands are Important for the way in which the victor will exploit 
his rights. As Franz Oppenheir-ier has righdy emphasized, ground rent 
is frequently the product of violent politic: 7 subjection. 10 Given a sub- 
sistence economy and a feudal structure this subjection means, of course, 
that the peasantry of the incoroorared area vill not be wiped out but 
rather will be spared and m?,de tributary to the conqueror, who becomes 
the landlord. This has happened wherever the army was no longer a 
levy composed of self-equipped freemen, or yet a mercenary or bureau- 
cratic mass army, but rather an army of self-equipped knights, as was 
the case with the Persians, the Arabs, the Turks, the Normans, and 
the Occidental feudal vassals in general. 

■ The interest in ground rent has also meant a great deal for pluto- 
cratic trading communities engaged in conquest. As commercial profits 
were preferably invested in land and indebted bondsmen, the normal 
aim of warfare, even in Antiquity, was to gain fertile land fit to yield 
ground rent. The Lelantine War [c. 590 B.C.], which marked a sort of 
epoch in early Hellenic history, was almost wholly carried on at sea 
and among trading cities. But the original object of dispute between 
the leading patricians of Chalcis and Eretria was the fertile Lelantine 
plain. Besides tributes of various sorts, one of the most important privi- 
leges that the Attic Maritime League evidendy offered to the demos of 
the ruling city was to break up the land monopoly of the subject cities. 
The Athenians were to receive the right to acquire and mortgage land 
anywhere. 

The establishment of commercium among cities allied to Rome meant 
in practice the same thing. Also, the overseas interests of the mass of 
Italics settled throughout the Roman sphere of influence certainly repre- 
sented, at least in part, land interests of an essentially capitalist nature, 
as we know them from [Cicero's] speeches against Gaius Verres." 

During its expansion, the capitalist interest in land may eome into 



4 ] The Economic Foundations of "Imperialism" 9 1 7 

conflict with the land interest of the peasantry. Such a conflict has 
played its part in the status struggles in the long epoch ending with the 
Gracchi. The big holders of money, cattle, and men naturally wished 
the newly gained land to he dealt with as public land for lease (age/* 
publicus). As long as ihe regions were not too remote, the peasants 
demanded that the land be partitioned in order to provide for their 
progeny. The compromises between these two interests are distinctly re- 
flected in tradition, although the details are certainly not veiy reliable. 

Rome's overseas expansion, as far as it was economically determined, 
shows features that have since recurred in basic oudine again and again 
and which still recur today. These features occuned in Rome in pro- 
nounced fashion and in gigantic dimensions, for the first time hi history. 
However fluid the transitions to other types may be, these "Roman" 
features are peculiar to what we wish to call imperialist capitalism, or 
rather, they provide the conditions for the existence of this specific type. 
These features are rooted in the capitalist interests of tax-farmers, of 
state creditors, of suppliers to the state, of overseas traders privileged 
by the state, and of colonial capitalists. The profit opportunities of all 
these groups rest upon the direct exploitation of political power directed 
towards expansion. 

By forcibly enslaving the inhabitants, or at least tying them to the 
soil Cglehae adscriptio) and exploiting them as plantation labor, the 
acquisition of overseas colonies brings tremendous opportunities for 
profit for capitalist interest-groups. The Carthaginians seem to have 
been the first to have arranged such an organization bn a large scale; 
the Spaniards in South America, the English in the Southern States of 
the Union, and the Dutch in Indonesia were the last to do it in the grand 
manner. The acquisition of overseas colonies also facilitates the compul- 
sory monopolization of trade with these colonies and possibly with other 
areas. Wherever the administrative apparatus of the polity is not suited 
- for the collection of taxes from the newly occupied territories — of this, 
later — the taxes give opportunities for profit to capitalist tax-farmers. 

The material implements of war may be part of the equipment pro- 
vided by" the 'army itself, as is the case in pure feudalism. But if these 
implements are furnished by the polity, rather than by the army, then 
expansion through war and the procurement of armaments to prepare 
for war represent by far the most profitable occasion for loan operations 
an the largest scale. The profit opportunities of capitalist state creditors 
then increase. Even during the Second Punic War capitalist state credi- 
tors prescribed their own conditions to the Roman polity. 

Where the ultimate state creditors are a mass stratum of state rentiers 
(bondholders) such credits provide profit opportunities for bond-issuing 



9 I 8 POLITICAL COMMUNITIES [ Ch, IX 

banks, as is characteristic of our day, The interests of those who supply 
the materials of war point in the same direction. In all this, economic 
forces interested in the emergence of military conflagrations pe) se, no 
matter what be the outcome for their own community, are called into 
life. 

Aristophanes distinguished between industries interested in war and 
industries interested in peace, although as is evident from his enumera- 
tion, the center of gravity in his time was still the self-equipped army. 
The individual citizen gave orders to artisans such as the sword-maker 
and the armorer. 15 But even then the large private commercial store 
houses, often designated as "factories," were above all stores of arma- 
ments. Today the polity as such is almost the sole agent to order war 
materia! and the engines of war. This enhances the capitalist nature of 
the process. Banks, which finance war loans, and today large sections of 
heavy industry are quand mime economically, interested in warfare; the 
direct suppliers of armoi plates and guns are not the only Ones so in- 
terested. A lost war, as well as a successful war, "brings increased busi- 
ness to these banks and industries. Moreover, the powers-that-be in a 
polity are politically and economically interested in the existence of 
large home factories for war engines. This interest compels tht-m to 
allow these factories to provide the whole world with their products, 
political opponents included. 

The extent to which the interests of imperialist capitalism are < oun- 
ter-balanced depends above all on the profitableness of imperialism as 
compared with the capitalist interests of pacifist orientation, insofar as 
purely capitalist motives here play a direct part. And this in f urn is 
closely connected with the extent to which economic needs are satisfied 
by a private or a public economy. The relation between the two is highly 
important for the nature of expansive eonomic tendencies backed up by 
political communities. 

In general and at all times, imperialist capitalism, especially colonial 
booty capitalism based on direct force and compulsory Jabor, has offered 
by far the greatest opportunities for profit. They have been greater by 
far than those normally open to industrial enterprises which worked for 
exports and which oriented themselves to peaceful trade with members 
of other polities. Therefore, imperialist capitalism has always existed 
wherever to any relevant degree the polity per se ? or its subdivisions 
(municipalities), satisfied its wants through a public economy. The 
stronger such an economy has been, the more important imperialist 
capitalism has been. 

Increasing opportunities for profit abroad emerge again today, espe- 
cially in territories that are opened up politically and economically, that 



4 ] Tke Economic Foundations of "Imperialism" 9 1 9 

is, brought into the specifically modern forms of public and private 
enterprise. These opportunities spring from public arms contracts; from 
railroad and other construction tasks carried out by the polity or by 
builders endowed with monopoly rights; from monopolist organizations 
for the collection of levies for trade and industry; from monopolist con- 
cessions; and from government loans. 

The preponderance of such profit opportunities increases, at the 
expense of profits from the usual private trade, the more that public 
enterprises gain in economic importance as a general form of supply- 
ing needs. This tendency is direcdy paralleled by politically backed 
economic expansion and competition among individual polities, whose 
members can afford to invest capital. These members aim at securing 
for themselves such monopolies and shares in public commissions. And 
the importance of the mere "open door" for the private importation of 
goods recedes into the background. 

The safest way of monopolizing for the members of one's own polity 
profit opportunities which are linked to the public economy of the 
foreign territory is to occupy it or at least to subject the foreign political 
power in the form of a "protectorate" or some such arrangement. There- 
fore, this "imperialist" tendency increasingly displaces the "pacifist" 
tendency of expansion, which aims merely at freedom of trade. The 
latter gained the upper hand only so long as the organization of supply 
by private capitalism shifted the optimum of capitalist profit opportuni- 
ties towards pacifist trade and not towards monopolist trade, or at least 
trade not monopolized by political power. 

The universal revival of "imperialist" capitalism, which has always 
been the normal form in which capitalist interests have influenced 
politics, and the revival of political drives for expansion are thus not ac- 
cidental. For the predictable future, the prognosis will have to be made 
in its favor. 

This situation would hardly change fundamentally if for a moment 
we were to make the mental experiment of assuming the individual 
polities to be somehow "state-socialist" communities, that is, organizations 
supplying a maximum amount of their needs through a collective econ- 
omy. They would seek to buy as cheaply as possible indispensable goods 
not produced on their own territory (cotton in Germany, for instance) 
from others that have natural monopolies and would seek to exploit 
them. It is probable that force would be used where it wjuld lead easily 
to favorable conditions of exchange; the weaker party would thereby be 
obliged to pay tribute, if not formally then at least actually. For the rest, 
one cannot see why the strong state-socialist communities should disdain 
to squeeze tribute out of the weaker communities for their own partners 



9 2 O POLITICAL COMMUNITIES [ Ch. IX 

where they could do so, just as happened everywhere during early 
history. Even in a polity without state-socialism the mass of citizens need 
be as little interested in pacifism as is any single stratum. The Attic' 
demos — and not it alone — lived economically off war. War brought 
soldiers' pay and, in case of a victory, tribute from the subjects. This 
tributtj was actually distributed among the full citizens in the hardly 
veiled form of attendance-ri.es at popular assemblies, court hearings, and 
public festivities. Here, every full citizen could direcdy grasp the in- 
terest in imperialist policy and power. Nowadays, the yields flowing 
from abroad to the members of a polity, including those of imperialist 
origin and those actually representing "tribute," do not result in a 
constellation of interests so comprehensible to the masses. For under 
the present economic order, the tribute to "creditor nations" assumes the 
forms of interest payments on debts or of capital profits transferred from 
abroad to the propertied strata of the "creditor nation." Were one to 
imagine these tributes abolished, it would mean for countries like England, 
France, and Germany a very palpable decline of purchasing power 
for home products. This would influence the labor market in an un- 
favorable manner. 

In spite of this, labor in creditor nations is of strongly pacifist mind 
and on the whole shows no interest whatsoever in the continuation and 
compulsory collection of such tributes from foreign debtor communities 
that are in arrears. Nor does labor show an interest in forcibly participat- 
ing in the exploitation of foreign colonial territories and public com- 
missions. This is a natural outcome of the immediate class situation, on 
the one hand, and, on the other, of the internal social and political 
situation of communities in a capitalist era. Those entitled to tribute 
belong to the opponent class, who dominate the community. Every 
successful imperialist policy of coercing the outside normally— or at 
least at first — also strengthens the domestic prestige and therewith the 
power and influence of those classes, status groups, and parties, under 
whose leadership the success has been attained. 

In addition to the pacifist sympathies determined by the social and 
political constellation, there are economic sources of pacifist sympathy 
among the masses, especially among the proletariat. Every investment of 
capital in the production of war engines and war material creates job 
and income opportunities; every- defense contract may become a factor 
directly contributing to prosperity by increasing demand and fostering 
the intensity of business enterprise. Even more so, this may indirectly 
become a source of enhanced confidence in the economic opportunities 
of the participating industries and lead to a speculative boom. Such in- 
vestment, however, withdraws capital from alternate uses and makes it 



4 ] The Economic Foundations of "Imperialism" 921 

more difficult to satisfy demands in other fields. Above all, the means of 
war are raised by way of levies, which the ruling strata, by virtue of. 
their social and political power, usually know how to transfer to the 
masses, quite apart from the limits set to the regimentation of property 
for "mercantilist" considerations. 

Countries litde burdened by military expenses (the United States) 
and especially the small countries (Switzerland, for example) often 
experience a stronger economic expansion than do some of the Great 
Powers and sometimes are more readily admitted to the economic ex- 
ploitation of foreign countries because they do not arouse the fear that 
political intervention might follow economic intrusion. 

Experience shows that the pacifist interests of petty bourgeois and 
proletarian strata very often and very easily fail. This is pardy because 
of the easier accessibility of all unorganized "masses" to emotional in- 
fluences and pardy because of the definite notion (which they enter- 
tain) of some unexpected opportunity somehow arising through war. 
Specific interests, like the hope entertained in overpopulated countries of 
acquiring territories for emigration, are, of course, also important in this 
connection. Another contributing cause is the fact that the "masses," in 
contrast to other interest-groups, subjectively risk a smaller stake in the 
game. In case of a lost war, the monarch has to'fear for his throne; re- 
publican power-holders and groups having vested interests in a republi- 
can constitution have to fear their own victorious general. The majority 
of the propertied bourgeoisie have to fear economic loss from the brakes 
being placed upon business as usual. Under certain circumstances, 
should disorganization follow defeat, the ruling stratum of notables has 
to fear a violent shift in power in favor of the propertyless. The "masses" 
as such, at least in their subjective conception and in the extreme case, 
have nothing concrete to lose but their lives. The valuation and effect 
of this danger strongly fluctuates in their own jninds. On the whole, it 
can. easily be reduced to zero through emotional influence. 



5. The Nation 

The fervor of this emotional influence does not, in the main, have 
an economic origin. It is based upon sentiments of prestige, which often 
extend deep down to the petty-bourgeois masses of states rich in the 
historical attainment of power-positions- The attachment to all this 
political prestige may fuse with a specific belief in responsibility towards 
succeeding generations. The great power structures fer se are then 
held to have a responsibility of their own for the way in which power. 



9 2 2 POLITICAL COMMUNITIES [ Ck. IX 

and prestige are distributed between their own and foreign polities. 
It goes without saying that all those groups who hold the power to 
steer common conduct within a polity will most strongly instill them- 
selves with this idealist fervor of power prestige. They remain the 
specific and most reliable bearers of the idea of the state as an imperialist 
power structure demanding unqualified devotion. 

In addition to the direct and material imperialist interests, discussed 
above, there are the indirecdy material as well as the ideological in- 
terests of strata that are in various ways privileged within a polity and, 
indeed, privileged by its very existence. They comprise especially all 
those who think of themselves as being the specific "partners" of a- 
specific "culture" diffused among the members of the polity. Under the 
influence of these circles, the naked prestige of "power" is unavoidably 
transformed into other special forms of prestige and especially into the 
idea of the "nation." 

If the concept of "nation" can in any way be defined unambiguously, 
it certainly cannot be stated in terms of empirical qualities common to 
those who count as members of the nation. In the sense of those using 
the term at a given time, the concept undoubtedly means, above all, that 
it ti frofer to expect from certain groups a specific sentiment of soli- 
darity in the face of other groups. Thus, the concept belongs in the 
sphere o'f values. Yet, there is no agreement on how these groups should 
be delimited or about what concerted action should result from such 
solidarity. 

In ordinary language, "nation" is, first of all, not identical with the 
. "people of a state," that is, with the membership of a given polity. 
Numerous polities comprise groups who emphatically assert the independ- 
ence of their "nation" in the face of other groups; or they comprise merely 
farts of a group whose members declare themselves to be one homoge- 
nous "nation" (Austria is an example for both). Furthermore, a 
"nation" is not identical with a community speaking the same language; 
that this by no means always suffices is* indicated by the Serbs and 
- Croats, the North Americans, the Irish, and the English. On the con- 
trary, a common language does not seem to be absolutely necessary to a 
"nation." In official documents, besides "Swiss People" one also finds 
the phrase "Swiss Nation." And some language groups do not think 
of themselves as a separate "nation," for example, at least until recently, 
the White Russians. As a rule, however, the pretension to be considered 
a special "nation" is associated with a common language as a culture 
value of the masses; this is predominantly the case in the classic country 
of language conflicts, Austria, and equally so in Russia and in eastern 
Prussia. But this linkage of the common language and "nation" is of 



5 ] __ The Nation 923 

varying intensity; for instance, it is very low jn the United States as well 
as in Canada. 

"National" solidarity among men speaking the same language may be 
Just as well rejected as accepted. Solidarity, instead, may be linked with 
differences in the other great culture value of the masses, namely, a 
religious creed, as is the case with the Serbs and Croats. National soli- 
darity may be connected with differing social structure and mores. and 
hence with "ethnic" elements, as is the case with the German Swiss 
and the Alsatians in the face of the Germans of the Reich, or with the 
Irish facing the British. Yet above all, national solidarity may be linked 
to memories of a common political destiny with other nations, among 
the Alsatians with the French since the Revolutionary War which 
represents their common heroic age, just as among the Baltic Barons 
with the Russians whose political destiny they helped to steer, 

It goes without saying that "national" affiliation need not be based 
upon common blood. Indeed, especially radical "nationalists" are often 
of foreign descent. Furthermore, although a specific common anthro- 
pological type is not irrelevant to nationality, it is neither sufficient nor 
prerequisite to nation founding. Nevertheless, the idea of the "nation" 
is apt to include the notions of common descent and of an essential, 
though freq'uendy indefinite, homogeneity. The "nation" has these no- 
tions in common with the sentiment of solidarity of ethnic communities, 
which is also nourished from various sources, as we have seen before 
[ch. V.:*}]. But the sentiment of ethnic solidarity does not by itself 
make a "nation." Undoubtedly, even the White Russians in the face of 
the Great Russians have always had a sentiment of ethnic solidarity, yet 
even at the present time they would hardly claim to qualify as a separate 
"nation." The Poles of Upper Silesia, until recently, had hardly any 
feeling of solidarity with the "Polish Nation." They felt themselves to 
be a separate ethnic group in the face of the Germans, but for the rest 
they were Prussian subjects and nothing else. 

Whether the Jews may be called a nation" is an old problem. Most 
of the time, the answer will be negative. At any rate, the answers of 
the Russian Jews; of the assimilating West-European and American Jews, 
and of the Zionists would vary in nature and extent. In particular, the 
question would he answered very differently by the peoples of thetr en- 
vironment, for example, by the Russians on the one side and the Amer- 
icans on the other — or at least by those Americans who at the present time 
still maintain American and Jewish nature to be essentially similar, as an 
American President [T.R.] has asserted in an official document. 

Those German-speaking Alsatians who refuse to belong to the Ger- 
man "nation" and who cultivate the memory of political union with 



924 POLITICAL COMMUNITIES [ Ck. IX 

France do not thereby consider themselves simply as members of the 
French "nation." The Negroes of the United States, at least at present, 
consider themselves members of the American "nation," but they will 
hardly ever be so considered by the Southern Whites. 

Only fifteen years ago, men knowing ■the Far East still denied that 
the Chinese qualified as a "nation"; they held them to be only s "race." 
Yet today, not only the Chinese political leaders but also the very same 
observers would judge differently. Thus it seems that a group of people 
under certain conditions may attain the quality of a nation through spe- 
cific behavior, or they may claim this quality as an "attainment" — and 
within short spans of time at that. 

There are, on the other hand, social groups that profess indifference 
to, and even directly relinquish, any evaluational adherence to a single 
nation. At the present time, certain leading strata of the class movement 
of the modern proletariat consider such indifference and relinquishment 
to be an accomplishment. Their argument meets with varying success, 
depending upon political and linguistic affiliations and also upon dif- 
ferent strata of the proletariat; on the whole, their success is rather 
diminishing at the present time. 

An unbroken scale of quite varied and highly changeable attitudes 
toward the idea of the "nation" is to be found among social strata within 
single groups to whom language usage ascribes the quality of "nations." 
The scale extends from emphatic affirmation to emphatic negation and 
finally complete indifference, as may be characteristic of the citizens of 
Luxembourg and of nationally "unawakened" peoples. Feudal strata, 
strata of officials, bourgeois strata of various occupational categories, strata 
of "intellectuals" do not have homogeneous or historically constant atti- 
tudes towards the idea. 

The reasons for the belief that one represents a nation vary gready, 
just as does the empirical conduct that actually results from affiliation or 
lack of it with a nation. The "national sentiments" of the German, the 
Englishman, the North American, the Spaniard, the Frenchman, or the 
Russian do not function in an identical manner — to take only the 
simplest illustration — in relation to the polity, with the geographical 
boundaries of which the "idea" of the nation may come into conflict, 
This antagonism may lead to quite different results. Certainly the 
Italians in the Austrian state would fight Italian troops only if coerced 
into doing so. Large portions of the German Austrians would today fight 
against Germany only with the greatest reluctance; they could not be 
relied upon. The German-Americans, however, even those valuing their 
[former] "nationality" most highly, would fight against Germany, not 
gladly, yet, given the occasion, unconditionally. The Poles in the Get- 



5 ] The Nation 925 

man State would fight readily against a Russian Polish army hut hardly 
against an autonomous Polish army. The Austrian Serbs would fight 
against Serbia with very mixed feelings and only in the hope of attaining 
common autonomy. The Russian Poles would fight more reliably 
against a German than against an Austrian army. 

It is a well-known historical fact that within the same nation the 
intensity of solidarity felt toward the outside is changeable and varies 
greatly in strength. On the whole, this sentiment has grown even where 
interna] conflicts of interest have not diminished. Only sixty years ago 
the [Prussian conservative] Kreuzzettung still appealed for the interven- 
tion of the emperor of Russia in internal German affairs; today, in spite 
of increased class antagonism, this would he difficult to imagine. 

In any case, the differences in national sentiment are both significant 
and fluid and, as is the case in all other fields, fundamentally different 
answers are given to the question: What conclusions are a group of 
people willing to draw from the "national sentiment" found among 
them? No matter how emphatic and subjectively sincere a pathos may 
be formed among them, what sort of specific joint action are they ready 
to develop? The extent to which in the diaspora a custom, more cor- 
rectly, a convention is adhered to as a "national" trait varies just as much 
as does the importance of common conventions for the belief in the 
existence of a separate "nation." In the face of this value concept of 
the "idea of the nation," which empirically is entirely ambiguous, a 
sociological typology would have to analyze all the individual kinds of 
sentiments of group membership and solidarity in their genetic condi- 
tions and in their consequences for the social action of the participants. 
This cannot be attempted here. 

Instead, we shall have to look a little closer into the fact that the 
idea of the nation for its advocates stands in very intimate relation to 
"prestige" interests. The earliest and most energetic Manifestations of the 
idea, in some form, even though it may have been veiled, have con- 
tained the legend of a providential "mission." Those to whom the repre- 
sentatives of the idea zealously turned were expected to shoulder this 
mission. Another element of the early idea was the notion that this 
mission was facilitated solely through the very cultivation of the pe- 
culiarity of the group set off as a nation. Therewith, in so far as its self- 
justification is sought in the value of its content, this mission can con- 
sistendy be thought of only as a specific "culture" mission. The sig- 
nificance of the "nation" is usually anchored in the superiority, or at 
least the irreplaceability, of the culture values that are to be preserved 
and developed only through the cultivation of the peculiarity of the 
group. It therefore goes without saying that, just as those who wield 



926 POLITICAL COMMUNITIES [ Ch. IX 

power in the polity invoke the idea of the state, the intellectuals, as we 
shall tentatively call those who usurp leadership in a KultuTgemein- 
sckaft (that is, within a group of people who by virtue of their pe- 
culiarity have access to certain products that are considered "culture 
goods"), are specifically predestined to propagate the "national" idea. 
This happens when those culture agents 

[The presentation breaks off here. Notes on the margin of the manu- 
script indicate that Weber intended to deal with the idea and develop- 
ment of the nation state throughout history. The following observations 
were found on the margin of the sheet: Cultural prestige and power 
prestige are closely associated. Every victorious war enhances the cultural 
prestige (Germany [1871], japan [1905], etc.). Whether war furthers 
the "development of culture" is another question, one which cannot be 
solved" in a "value neutral" way. It certainly does not do it in an un- 
ambiguous way (see Germany after 1871!). Even on the basis of purely 
empirical criteria it would not seem to do so: Pure art and literature of 
a specifically German character did not develop in the political center of 
Germany.] 



6. The Distribution of Power Within the Political 
Community. Class, Status, Party" 

A. ECONOMICALLY DETERMINED POWER AND THE STATUS ORDER. The 

structure of every legal order directly influences the distribution of power, 
economic or otherwise, within its respective community. This is true 
of all legal orders and not only that of the state. In general, we under- 
stand by "power" the chance of a man or a number of men to realize 
their own will in a social action even against the resistance of others 
who are participating in the action. 

"Economically conditioned" power is not, of course, identical with 
"power" as such. On the contrary, the emergence of economic power 
may be the consequence of power existing on other grounds. Man does 
not strive for power only in order to enrich himself economically. Power, 
including economic power, may be valued for its own sake. Very fre- 
quently the striving for power is also conditioned by the social honor 
it entails. Not all power, however, entails social honor: The typical 
American Boss, as well as the typical big speculator, deliberately re- 
linquishes social honor. Quite generally, "merefeconomic" power, and 
especially "naked" money power, is by no means a recognized basis of 
social honor. Nor is power the only basis of social honor. Indeed, social 
honor, or presage, may even be the basis of economic power, and very 
frequently has been. Power, as well as honor, may be guaranteed by 



6 ] Distribution of Power: Class, Status, Party 9 2 7 

the legal order, but, at least normally, it is not their primary source. 
The legal order is rather an additional factor that enhances the chanoe 
to hold power or honor; but it can not always secure them. 

The way in which social honor is distributed in a community be- 
tween typical groups participating in this distribution we call the 
"status order." The social order and the economic order are related in a 
similar manner to the legal order. However, the economic order merely 
defines the way in which economic goods and services are distributed 
and used. Of couise, the status order is strongly influenced by it, and 
in turn reacts upon it. 

Now: "classes," "status groups," and "parties" are phenomena of the 
distribution of power within a community. 

B. DETERMINATION OF CLASS SITUATION BY MARKET SITUATION. In 

our terminology, "classes" are not communities; they merely represent 
possible, and frequent, bases for social action. We may speak of a 
"class" when (1) a number of people have in common a specific causal 
component of their life chances, insofar as (2) this component is repre- 
sented exclusively by economic interests in the possession of goods and 
opportunities for income, and (3) is represented under the conditions of 
the commodity or labor markets. This is "class situation." 

It is the most elemental economic fact that the way in which the 
disposition over material property is distributed among a plurality of 
people, meeting competitively in the market for the purpose of exchange, 
in itself creates specific life chances. The mode of distribution, in accord 
with the law of marginal utility, excludes the non-wealthy from com- 
peting for highly valued goods; it favors the owners and, in fact, gives 
to them a monopoly to acquire such goods. Other things being equal, 
the mode of distribution monopolizes the opportunities for profitable 
deals for all those who, provided with goods, do not necessarily have 
to exchange them. It increases, at least generally, their power in the price 
struggle with those who, being propertyrfess, have nothing to offer but 
their labor or the resulting products, and who are compelled to get rid of' 
these products in order to subsist at all. The mode of distribution gives to 
the propertied a monopoly on the possibility of transferring property 
from the sphere of use as "wealth" to the sphere of "capital," that is, 
it gives them the entrepreneurial function and all chances to share 
direcdy or indirectly in returns on capital. All this holds true within the 
area in which pure market conditions prevail. "Property" and "lack of 
property" are, therefore, the basic categories of all class situations. It 
does not matter whether these two categories become effective in the 
competitive struggles of the consumers or of the producers. 

Within these categories, however, class situations are further dif- 



928 POLITICAL COMMUNITIES [ Ck. IX 

ferentiated: on the one hand, according to the kind of property that is 
usable for returns; and, on the other hand, according to the kind of 
services that can be offered in the market. Ownership of dwellings; 
workshops; warehouses; stores; agriculturally usable land in large or 
small holdings — a quantitative difference with possibly qualitative con- 
sequences; ownership of mines; catde; men (slaves); disposition over 
mobile instruments of production, or capital goods of^ali sorts, especially 
money or objects that can easily be exchanged for money; disposition 
over products of one's own labor or of others' labor differing according 
to their various distances from consumability; disposition over trans- 
ferable monopolies of any kind — all these distinctions differentiate the 
class situations of the propertied just as does the "meaning" which they 
can give to the use of property, especially to property which has money 
equivalence. Accordingly, the propertied, for instance, may belong to 
the class of rentiers or to the class of entrepreneurs. 

Those who have no property but who offer services are differentiated 
just as much according to their kinds of services as according to the way 
in which they make use of these services, in a continuous or discon- 
tinuous relation to a recipient. But always this is the generic connota- 
tion of the concept of class; that the'kind of chance in the market is 
the decisive moment which presents, a -common condition for the in- 
dividual's fate. Class situation is, in this sense, ultimately market situa- 
tion. The effect of naked possession fer se, which among catde breeders 
gives the non-owning slave or serf into the power of the catde owner, is 
only a fore-runner of real "class", formation. However, in the catde loan 
and in the naked severity of the law of debts in such communities fox 
the first time mere "possession" as such emerges as decisive for the fate 
of the individual; this is much in contrast to crop-raising communities, 
which are based on labor. The creditor-debtor relation becomes the basis 
of "class situations" first in the cities, where a "credit market," however 
primitive, with rates of interest increasing according to the extent of 
dearth and factual monopolization of lending in the hands of a plutocracy 
could develop. Therewith "class straggles" begin; 

Those men whose fate is not determined by the chance of using 
goods or services for themselves on the market, e.g,, slaves, are not, how- 
ever, a class in the technical sense of the term. They are, rather, a 
status group. 

c. social action FLOWiNc from class interbst. According to our 
terminology, the factor that creates "class" is unambiguously economic 
interest, and indeed, only those interests involved in the existence of 
the market. Nevertheless, the concept of class-interest is an ambiguous 
one: even as an empirical concept it is ambiguous as soon as one under- 



6] 



Distribution of Power: Class, Status, Party 



929 



stands by it something other than the factual direction of interests follow- 
ing with a certain probability from the class situation for a certain aver- 
age of those people subjected to the class situation. The class situation 
and other circumstances remaining the same, the direction in which 
the individual worker, for instance, is likely to pursue his interests may 
vary widely, according to whether he is constitutionally qualified for the 
task at hand to a high, to an average, or to a low degree. In the same 
way, the direction of interests may vary according to whether or not 
social action of a larger or smaller portion of those commonly affected 
by the class situation, or even an association among them, e.g., a trade 
union, has grown out of the class situation, from which the individual 
may expect promising results for himself. The emergence of an associa- 
tion or even of mere social action from a common class situation is by 
no means a universal phenomenon. 

The class situation may be restricted in its efforts to the generation of 
essentially similar reactions, that is to say, within our terminology, of 
"mass behavior." However, it may not even have this result. Further- 
more, often merely amorphous social action emerges. For example, the 
"grumbling" of workers known in ancient Oriental ethics: The moral 
disapproval of the work-master's conduct, which in its practical sig- 
nificance was probably equivalent to an increasingly typical phenomenon 
of precisely the latest industrial development, namely, the slowdown of 
laborers by virtue of tacit agreement. The degree in which "social action" 
and possibly associations emerge from the mass behavior of the members 
of a class is linked to general cultural conditions, especially to those of 
an intellectual sort. It is also linked to the extent of the contrasts that 
have already evolved, and is especially linked to the transparency of the 
connections between the causes and the consequences of the class situa- 
tion. For however different life chances may be, this fact in itself, 
according to all experience, by no means gives birth to "class action" 
(social action by the members of a class). For that, the real conditions 
arid the results of the class situation must be distinctly recognizable. For 
only then the contrast of life chances can be felt not as an absolutely 
given fact to be accepted, but as a resultant from either (1) the given 
distribution of property, or (2) the structure of the concrete economic 
order. It is only then that people may react against the class structure 
not only through acts of intermittent and irrational protest, but in the 
form of rational association. There have been "class situations'* <of the 
first category (1), of a specifically naked and transparent sortv in the 
urban centers of Antiquity and during the Middle Ages; especially then 
•when great fortunes were accumulated by factually monopolized trading 
in local industrial products or in foodstuffs; furthermore, under certain 



9 3 O POLITICAL COMMUNITIES [ Ch. IX 

conditions, in the rural economy of the most diverse periods, when 
agriculture was increasingly exploited in a profit-making manner. The 
most important historical example of the second category (2) is the 
class situation of the modem proletariat. 

d. types of class strugglb. Thus every class may be the carrier 
of any one of the innumerable possible forms of class action, but this is 
not necessarily so. In any case, a class does not in itself constitute a 
group CGemeinschaft). To treat "class" conceptually as being equivalent 
to "group" leads to distortion. That men in the same class situation reg- 
ularly react in mass actions to such tangible situations as economic ones 
in the direction of those interests that are most adequate to their average 
number is an important and after all simple fact for the understanding 
of historical events. However, this fact must not lead to that kind of 
pseudo-scientific operation with the concepts of class and class interests 
which is so frequent these days and which has found its most classic 
expression in the statement of a talented author, that the individual may 
be in error concerning his interests but that the class is infallible about 
its interests. 

If classes as such are not groups, nevertheless class situations emerge 
oily on the basis of social action. However, social action that brings 
forth class situations is not basically action among members of the 
identical class; it is an action among members of different classes. Social 
actions that direcdy determine the class situation of the worker and the 
entrepreneur are: the tabor market, the commodities market, and the 
capitalistic enterprise. But, in its turn, the existence of a capitalistic en- 
terprise presupposes that a very specific kind of social action exists to 
protect die possession of goods per se, and especially the power of in- 
dividuals to dispose, in principle fieely, over the means of production: a 
certain kind of legal order. Each kind of class situation, and above all 
when it rests upon the power of property ■per se, will become most 
clearly efficacious when all other determinants of reciprocal relations 
are, as far as possible, eliminated in dieir significance. It is in this way 
that the use of the power of property in the market obtains its most 
sovereign importance. 

Now status groups hinder the strict carrying through of the sheer 
market principle. In the present context they are of interest only from 
this one point of view. Before we briefly consider them, note that not 
much of a general nature can be said about the more specific kinds of 
antagonism between classes (in our meaning of the term). The great 
shift, which has been going on continuously in the past, and up to our 
times, may be summarized, although at a cost of some precision: the 
struggle in which class situations are effective has progressively shifted 



6 ] , Distribution of Power: Class, Status, Party 931 

from consumption credit toward, first, competitive struggles in the com- 
modity market and then toward wage disputes on the labor market. The 
class struggles of Antiquity — to the extent that they were genuine class 
struggles and not struggles between status groups — were initially carried 
on by peasants and perhaps also artisans threatened by debt bondage 
and struggling against urban creditors. For debt bondage is the normal 
result of the differentiation of wealth in commercial cities, especially 
in seaport cities. A similar situation has existed among catde breeders. 
Debt relationships as such produced class action up to the days of 
Catilina. Along with this, and with an increase in provision of grain for ^ 
the city by transporting it from the outside, the struggle over the means '" 
of sustenance emerged. It centered in the first place around the pro- 
vision of bread and determination of the price of bread. It lasted through- 
out Antiquity and the entire Middle Ages. The propertyless flocked 
together against those who actually and supposedly were interested in 
the dearth of bread. This fight spread until it involved all those com- 
modities essential to the way of life and to handicraft production. There 
were only incipient discussions of wage disputes in Antiquity and in 
the Middle Ages. But they have been slowly increasing up into modern* 
times. In the earlier periods they were completely secondary to slave ' 
rebellions as well as to conflicts in the commodity market. 

The propertyless of Antiquity and of the Middle Ages protested 
against monopolies, pre-emption, forestalling, and the withholding of 
goods from the market in order to raise prices. Today the central issue 
is the determination of the price of labor. The transition is represented 
by the fight for access to the market and for the determination of the 
price of products. Such fights went on between merchants and workers 
in the putting-out system of domestic handicraft during the transition 
to modem times. Since it is quite a general phenomenon we must men- 
tion here that the class antagonisms that are conditioned through the 
market situations are usually most bitter between those who actually and 
direcdy participate as opponents in price wars. It is not the rentier, the 
share-holder, and the banker who suffer the ill will of the worker, but 
almost exclusively the manufacturer and the business executives who 
are the direct opponents of workers in wage conflicts. This is so in spite 
of the fact that it is precisely the cash boxes of the rentier, the share- . 
holder, and the banker into which the more or less unearned gains flow, 
rather than into the pockets of the manufacturers or of the business 
executives. This simple state of affairs has very frequently been decisive 
for the role the class situation has played in the formation of political 
parties. For example, it has made possible the varieties of patriarchal 
socialism and the frequent attempts — formerly, at least — of threatened 



9 3 i POLITICAL COMMUNITIES [ Cfe. IX 

status groups to form alliances with the proletariat against the bour- 
geoisie. 

E. status honor. In contrast to classes, Stande (status grou-ps^ are 
normally groups. They are, however, often of an amorphous kind. In 
contrast to the purely economically determined "class situation," we wish 
to designate as status situation every typical component of the life of 
men that is determined by a specific, positive or negative, social estima- 
tion of honor. This honor may be connected with any quality shared by 
a plurality, and, of course, it can be knit to a class situation: class dis- 
tinctions are linked in the most varied ways with status distinctions. 
Property as such is not always recognized as a status qualification, but 
in the long run it is, and with extraordinary regularity. In the sub- 
sistence economy of neighborhood associations, it is often simply the 
richest who is the "chieftain." However, this often is only an honorific 
preference. For example, in the so-called pure modern democracy, that is, 
one devoid of any expressly ordered status privileges for individuals, it 
may be that only the families coming under approximately the same tax 
class dance with one another. This example is reported of certain smaller 
Swiss cities. But status honor need not necessarily be linked with a class 
situation. On the contrary, it normally stands in sharp opposition to the 
pretensions of sheer property. 

Both propertied and propertyless people can belong to the same 
status group, and frequently they do with very tangible consequences. 
This equality of social esteem may, however, in the long run become 
quite precarious. The equality of status among American gentlemen, for 
instance, is expressed by the fact that outside the subordination de-* 
termined by the different functions of business, it would be considered 
strictly repugnant — wherever the old tradition still prevails — if even the 
richest boss, while playing billiards or cards in his club would not treat 
his clerk as in every sense fully his equal in. birthright, but would bestow 
upon him the condescending status-conscious "benevolence" which the 
German boss can never dissever from his attitude. This is one of the 
most important reasons why in America the German clubs have never 
been able to attain the attraction that the American clubs have. 

In content, status honor is normally expressed by the fact that above 
all else a specific style of life is expected from all those who wish to 
belong to the circle. Linked with this expectation are restrictions on 
social intercourse (that is, intercourse which is not subservient to eco- 
nomic or any other purposes). These restrictions may confine normal 
marriages to within the status circle and may lead to complete en- 
dogamous closure. Whenever this is not a mere individual and socially 
irrelevant imitation of another style of life, but consensual action of this 
closing character, the status development is under way. 



6 ] Distribution of Power: Class, Status, Party ' 933 

In its characteristic form, stratification by status groups on the basis 
of conventional styles of life evolves at the present time in the United 
States out of the traditional democracy. For example, only the resident 
of a certain street ("the Street") is considered as belonging to "society," 
is qualified for social intercourse, and is visited and invited. Above all, 
this differentiation evolves in such a way as to make for strict submission 
to the fashion that is dominant at a given time in society. This sub- 
mission to fashion also exists among men in America to a degree un- 
known in Germany; it appears as an indication of the fact that a given 
man puts forward a claim to qualify as a gendeman. This submission 
decides, at least 'prima facie, that be will be treated as such. And this 
recognition becomes just as important for his employment chances in 
swank establishments, and above all, for social intercourse and marriage 
with "esteemed" families, as the qualification for dueling among Ger- 
mans. As for the rest, status honor is usurped by certain families resident 
for a long time, and, of course, correspondingly wealthy (e.g. F.F.V., 
the First Families of Virginia), or by the actual or alleged descendants 
of the "Indian Princess" Pocahontas, of the Pilgrim fathers, or of the 
Knickerbockers, the members of almost inaccessible sects and all sorts of 
circles setting themselves apart by means of any other characteristics 
and badges. In this case stratification is purely conventional and rests 
largely on usurpation (as does almost all status honor in its beginning). 
But the road to legal privilege, positive or negative, is easily traveled 
as soon as a certain stratification of the social order has in fact been 
"lived in" and has achieved stability by virtue of a stable distribution of 
economic power. 

f. ethnic segregation and CASTE. Where the consequences have 
been realized to their full extent, the status group evolves into a closed 
caste. Status distinctions are then guaranteed not merely by conventions 
and laws, but also by religious sanctions. This occurs in such a way that 
every physical contact with a member of any caste that is considered to 
-be lower by the members of a higher caste is considered as making for a 
ritualistic impurity and a stigma which must he expiated by a religious 
act. In addition, individual castes develop quite distinct cults and gods. 

In general, however, the status structure reaches such extreme con- 
sequences only where there are underlying differences which are held 
to he "ethnic." The caste is, indeed, the normal form in which ethnic 
communities that believe in blood relationship and exclude exogamous 
marriage and social intercourse usually associate with one another. As 
mentioned before [ch. VI:vi;6], such a caste situation is part of the phe- 
nomenon of pariah peoples and is found all over the world. These peo- 
ple form communities, acquire specific occupational traditions of handi- 
crafts or of other arts, and cultivate a belief in their ethnic community. 



9 3 4 POLITICAL COMMUNITIES [ Ck. IX 

They live in a diaspora strictly segregated from all personal intercourse, 
except that of an unavoidable sort, and their situation is legally pre- 
carious. Yet, by virtue of their economic indispensability, they are tol- 
erated, indeed frequently privileged, and they live interspersed in the 
political communities. The Jews are the most impressive historical 
example. 

A status segregation grown into a caste differs in its structure from a 
mere ethnic segregation: the caste structure transforms the horizontal 
and unconnected coexistences of ethnically segregated groups into a ver- 
tical social system of super- and subordination. Correctly formulated: a 
comprehensive association integrates the ethnically divided communities 
into one political unit. They differ precisely in this way: ethnic co- 
existence, based on mutual repulsion and disdain, allows each ethnic 
community to consider its own honor as the highest one; the caste struc- 
ture brings about a socif?- subordination and an acknowledgement of 
"more honor" in favor of the privileged caste and status groups. This is 
due to the fact that in the caste structure ethnic distinctions as such 
have become "functional" distinctions within the political association 
(warriors, priests, artisans that are politically important for war and 
for building, and so on). But even pariah peoples who are most despised 
(for example, the Jews) are usually apt to continue cultivating the be- 
lief in their own specific "honor," a belief that is equally peculiar to 
ethnic and to status groups. 

However, with the negatively privileged status groups the sense of 
dignity takes a specific deviation. A sense of dignity is the precipitation 
in individuals of social honor and of conventional demands which a, 
positively privileged status group raises for the deportment of its mem- 
bers. The sense of dignity that characterizes positively privileged status 
groups is naturally related to their "being" which does not transcend 
itself, that is, it is related to their "beauty and excellence" (<caAo)caya&'a). 
Their kingdom is "of this world." They live for the present and by ex- 
ploiting dieir great past. The sense of dignity of the negatively privileged 
strata naturally refers to a future lying beyond the present, whether it is 
of this life or of another. In other words, it must be nurtured by the 
belief in a providential mission and by a belief in a specific honor before 
God. The chosen people's dignity is nurtured by a belief either that in 
the beyond "the last will be the first," or that in this life a Messiah will 
appear to bring forth into the light of the world which has cast them 
out the hidden honor of the pariah people. This simple state of affairs, 
and not the resentment which is so strongly emphasized in Nietzsche's 
much-admired construction in the Genealogy of Morals, is the source of 
the religiosity cultivated by pariah status groups (see above, ch. VI:vi:5); 



6 ] Distribution of Power: Chss, Status, Party 9 3 5 

moreover, resentment applies only to a limited extent; for one of 
v Nietzsche's main examples, Buddhism, it is not at all applicable. 

For the rest, the development of status groups from ethnic segrega- 
tions is by no means the normal phenomenon. On the contrary. Since 
objective "racial differences" are by no means behind every subjective 
sentiment of an ethnic community, the question of an ultimately racial 
foundation of status structure is righdy a question of the concrete in- 
dividual case. Very frequendy a status group is instrumental in the 
production of a thoroughbred anthropological type. Certainly status 
groups are to a high degree effective in producing extreme types, for they 
select personally qualified individuals (e.g. the knighthood selects those 
who are fit for warfare, physically and psychically). But individual selec- 
tion is far from being the only, or the predominant, way in which status 
groups are formed: political membership or class situation has at all 
times been at least as frequendy decisive. And today the class situation 
is by far the predominant factor. After all, the possibility of a style of 
life expected for members of a status group is usually conditioned 
economically. 

G. status privileges. For all practical purposes, stratification by 
status goes hand in hand with a monopolization of ideal and material 
goods or opportunities, in a manner we have come to know as typical. 
Besides the specific status honor, which always rests upon distance and 
exclusiveness, honorific preferences may consist of the privilege of wear- 
ing special costumes, of eating special dishes taboo to others, of carrying 
arms — which is most obvious in its consequences — , the right to be a 
dilettante, for example, to play certain musical instruments. However, 
material monopolies provide the most effective motives for the exclusive- 
ness of a status group; althcagh, in themselves, they are rarely sufficient, 
almost always they come into play to some extent. Within a status circle 
there is the question of inter -i: image: the interest of the families in the 
monopolization of potential bridegrooms is at least of equal importance 
and is parallel to the interest in the monopolization of daughters. The 
daughters of the members must be provided for. With an increased 
closure of the status group, the conventional preferential opportunities 
for special employment grow into a legal monopoly of special offices for 
the members. Certain goods become objects for monopolization by status 
groups, typically, entailed estates, and frequendy also the possession of 
serfs or bondsmen and, finally, special trades. This monopolization oc- 
curs positively when the status group is exclusively entitled to own and 
to manage them; and negatively when, in order to maintain its specific 
way of life, the status group must not own and manage them. For the 
decisive role of a style of life in status honor means that status groups 



936 POLITICAL COMMUNITIES [ Ch. IX 

are the specific bearers of all conventions. In whatever way it may be 
manifest, all stylization of life either originates in status groups or is at 
least conserved by them. Even if the principles of status conventions 
differ greatly, they reveal certain typical traits, especially among the 
most privileged strata. Quite generally, among privileged status groups 
there is a status disqualification that operates against the performance of 
common physical labor. This disqualification is now "setting in" in 
America against the old tradition of esteem for labor. Very frequently 
every rational economic pursuit, and especially entrepreneurial activity, 
is looked upon as a disqualification of status. Artistic and literary activity 
is also considered degrading work as soon as it is exploited for income, or 
at least when it is connected with hard physical exertion. An example 
is the sculptor working like a mason in his dusty smock as over against 
the painter in his salon-like studio and those forms of musical practice 
that are acceptable to the status group. 

H. ECONOMIC CONDITIONS AND EFFECTS OF STATUS STRATIFICATION. 

The frequent disqualification of the gainfully employed as such is a 
direct result of the principle of status stratification, and of course, of 
this principle's opposition to a distribution of power which is regulated 
exclusively through the market. These two factors operate along with 
various individual ones, which will be touched upon below. 

We have seen above that the market and its processes knows no 
personal distinctions; "functional" interests dominate it. It knows noth- 
ing of honor. The status order means precisely the reverse: stratification 
in terms of honor and styles of life peculiar to status groups as such. 
The status order would be threatened at its very root if mere economic 
acquisition and naked economic power still bearing the stigma of its 
extra-status origin could bestow upon anyone who has won them the 
same or even greater honor as the vested interests claim for themselves. 
After all, given equality of status honor, property per se represents an 
addition even if it is not overtly acknowledged to be such. Therefore all 
groups having interest in the status order react with special sharpness 
precisely against the pretensions of purely economic acquisition. In most 
cases they react the more vigorously the more they feel themselves 
threatened. Calderon's respectful treatment of the peasant, for instance, 
as opposed to Shakespeare's simultaneous ostensible disdain of the 
canaille illustrates the different way in which a firmly structured status 
ordo: -reacts as compared with a status order that has become economi- 
cally precarious. This is an example of a state of affairs that recurs every- 
where. Precisely because of the rigorous reactions against the claims of 
property per se, the "parvenu" is never accepted, personally and without 
reservation, by the privileged status groups, no matter how completely 



6 } Distribution of Power; Class, Status, Party 9 37 

his style of life has been adjusted to theirs. They will only accept his 
descendants who have been educated in the conventions of their status 
group and who have never besmirched its honor by their own economic 
labor. 

As to the general effect of the status order, only one consequence 
can be stated, but it is a very important one: the hindrance of the free 
development of the market. This occurs first for those goods that status 
groups direcdy withhold from free exchange by monopolization, which 
may be effected either legally or conventionally. For example, in many 
Hellenic cities during the "status era" and also originally in Rome, the 
inherited estate (as shown by the old formula for placing spendthrifts 
under a guardian) M was monopolized, as were the estates of knights, 
peasants, priests, and especially the clientele of the craft and merchant 
guilds. The market is restricted, and the power of naked property per se, 
which gives its stamp to class formation, is pushed into the background. 
The results of this process can be most varied. Of course, they do not 
necessarily weaken the contrasts in the economic situation. Frequently 
'they strengthen these contrasts, and in any case, where stratification by 
status permeates a community as strongly as was the case in all political 
communities of Antiquity and of the Middle Ages, one can never speak 
of a genuinely free market competition as we understand it today. There 
are wider effects than this direct exclusion of special goods from the 
market. From the conflict between the status order and the purely 
economic order mentioned above, it follows that in most instances the 
notion of honor peculiar to status absolutely abhors that which is essen- 
tial to the market: hard bargaining. Honor abhors hard '■ bargaining 
among peers and occasionally it taboos it for the members of a status 
group in general. Therefore, everywhere some status groups, and usually 
the most influential, consider almost any kind of overt participation in 
economic acquisition as absolutely stigmatizing. 

With some over-simplification, one might thus say that classes are 
stratified according to their relations to the production and acquisition of 
goods; whereas status groups are stratified according to the principles of 
their consumption of goods as represented by special styles of life. 

. An "occupational status group," too, is a status group proper. For 
normally, it successfully claims social honor only by virtue of the special 
style of life which may be determined by it. The differences between 
classes and status groups frequendy overlap. It is precisely^ those status 
communities most stricdy segregated jn terms of honor (viz. the Indian 
castes) who today show, although within very rigid limits, a relatively 
high degree of indifference to pecuniary income. However, the Brah- 
mins seek such income in many different ways. 



938 POLITICAL COMMUNITIES [ Ck. IX 

As to the general economic conditions making for the predominance 
of stratification by status, only the following can be said. When the 
bases of the acquisition and distribution of goods are relatively stable, 
stratification by status is favored. Every technological repercussion and 
economic transformation threatens stratification by status and pushes the 
class situation into the foreground. Epochs and countries in which the 
naked class situation is of predominant significance are regularly the 
periods of technical and economic transformations. And every slowing 
down of the change in economic stratification leads, in due course, to 
the growth of status structures and makes for a resuscitation of the 
important role of social honor. 

1. parties. Whereas the genuine place of classes is within the eco- 
nomic order, the place of status groups is within the social order, that 
is,, within the sphere of the distribution of honor. From within these 
spheres, classes and status groups influence. one another and the legal 
order and are in turn influenced by it. "Parties" reside in the sphere of 
power. Their action is oriented toward the acquisition of social power, 
that is to say, toward influencing social action no matter what its content 
may be. In principle, parties may exist in a social club as well as in a 
state. As over against the actions of classes and status groups, for which 
this is not necessarily the case, party-oriented social action always in- 
volves association. For it is always directed toward a goal which is 
striven for in a planned manner. This goal may be a cause (the party 
may aim at realizing a program fox ideal or material purposes), or the 
goal may be personal (sinecures, power, and from these, honor for the 
leader and the followers of the party). Usually the party aims at all ' 
these simultaneously. Parties are, therefore, only possible within groups 
that have an associational character, that is, some rational order and a 
staff of persons available who are ready to enforce it. For parties aim 
precisely at influencing this staff, and if possible, to recruit from it party 
'members. 

In any individual case, parties may represent interests determined 
through class situation or status situation, and they may recruit their 
following respectively from one or the other. But they need be neither 
purely class nor purely status parties; in fact, they are more likely to be 
mixed types, and sometimes they are neither. They may represent 
ephemeral or enduring structures. Their means of attaining power may 
be quite varied, ranging from naked violence of any sort to canvassing 
for votes with coarse or subtle means: money, social influence, the force 
of speech, suggestion, clumsy hoax, and so on to the rougher or more 
artful tactics of obstruction in parliamentary bodies. 

The sociological structure of parties differs in a basic way according 



6 ] __ Distribution of Power: Class, Status, Party 9 3 9 

to the kind of social action which they struggle to influence; that means, 
they differ according to whether or not the community is stratified by 
status or by classes. Above all else, they vary according to the structure 
of domination. For their leaders normally deal with its conquest. In our 
general terminology, parties are not only products of modern forms of 
domination. We shall also designate as parties the ancient and medieval 
ones, despite the fact that they differ basically from modern parties. 
Since a party always struggles for political control Qierrschaft), its 
organization too is frequently strict and "authoritarian.' 1 Because of these 
variations between the forms of domination, it is impossible to say any- 
thing about the structure of parties without discussing them first. There- 
fore, we shall now turn to this central phenomenon of all social organi- 
zation. 

Before we do this, we should add one more general observation 
about classes, status groups and parties: The fact that they presuppose a 
larger association, especially the framework of a polity, does not mean 
that they are confined to it. On the contrary, at all times it has been the 
order of the day that such association (even when it aims at the use of 
military force in common) reaches beyond the state boundaries. This 
can be seen in the [interlocal] solidarity of interests of oligarchs and 
democrats in Hellas, of Guelphs and Ghibellines in the Middle Ages, 
and within the Calvinist party during the age of religious struggles; 
and all the way up to the solidarity of landlords (International Con- 
gresses of Agriculture), princes (Holy Alliance, Karlsbad Decrees 
[of 1819]), socialist workers, conservatives (the longing of Prussian con- 
servatives for Russian intervention in 1 850). But their aim is not neces- 
sarily the establishment of a new territorial dominion. In the main they 
aim to influence the existing polity. 



NOTES 

1. This is the early formulation of territorial political organization and of the 
state, which Weber later summarized in sec, 17 of Part One, ch. I. (R) 

2. CamOTTa— well-organized large-scale criminal gang operating in Southern 
Italy, especially Naples: first appearance c. 1830; achieved effective power over 
Naples municipal government in the iSpo's, was defeated in the elections of 1901 
through the «ffort of the Honest Government League, but flared up repeaiedly in 
later times, especially about 191 1 . (Rh) 

3. Cf. Soc. of Law, above, ch, VHI:m:i and 5,andvi: 1. (W) 

4. Cf. in this respect the role of the "military societies" as police organs 
among the Plains Indians, as described by K. N. Llewellyn and E. A. Hoebel, 
The Cheyenne Way (1941), esp. c. 5. (Rh) 

5. Cf. E. Fischer, Schweizergeschickte (3rd ed. 1947) J 50. (Rh) 

6. For a recent survey and synthesis of such studies, see R. Thumwald, 



9 4° POLITICAL COMMUNITIES [ Ch. IX 

Werden, Wandel und Gesutlttmg von Stoat und Kidtur (1934); for illustrations 
of the type of society mentioned in the following sentences, see R. F. Barton, 
Ifugao Law C'9'9) and The Kalingas (1948). (Rh) 

7. See Reste arabischen Heidentums (sec. ed., 1897; also Medina vot dent 
Islam CSkiZTXttund Vorarbetten, vol. IV, 1, 1889). (W)' ' 

8. The German Customs Union (Zolivertiw) was gradually established 
under Prussian leadership in the 1820's and 1830's. After January 1, 18.14, it 
comprised all German states with the exception of Austria and two smaller states, 
i.e., practically 1 that part of Germany which under Bismarck's leadership 
emerged in 1871 as the new Gerrmn fieich. In this development of German 
unity under Prussian hegemony, but also toward the exclusion of Austria, which 
became final through the Prussia n-Austri an war of 1866, the Zollvereiu consti- 
tuted an important step. (Rh) 

9. Cf. Weber, Agrarverhaltnisse, in GAzSW, 271, 27^, 295^ (W) 

10. On Franz Oppenheimer, see supra, Part One, ch. II, nn. 3 and 2.2. (Wi) 

11. Gaius Verres (c. 120-43 B.C.), Roman magistrate who as governor of 
Sicily ruthlessly exploited the local population. On their behalf he was in 70 b.c. 
prosecuted in the Repeiu-ndae (extortion) Court bv Cicero, whose "Verrine" ora- 
tions contain much valuable information on agrui-Jii conditions — specifically, on 
the decline of peasant farming in favor of capitalistic, slave -ope rated latifundia— 
in the-Roman provinces. Cf.ai=o Weber, Agrarverhtiltrhse, in GAzSW, 2^2f. (Wi) 

12. Cf. now Victor Erirenberg, The People uf Aristophanes (New York: 
Schockcn paperback, 1962), chs. V (<;sp. i23f.) and XI (esp. 3o7fF.). (Wi) 

13. All subheadings by Geiih dnj Mills. The major terminological change in 
this section is the elimination cf the dichotomy of "communal" versus "societal" 
action and the substitution of "group" for "community." (R) 

14. On the bona yaterna av'taque of the Roman disemancipation formula, cf. 
also infra, ch. XVI:v, at n. 33, (Wi) 



CHAPTER A 

DOMINATION AND 
LEGITIMACY 



„ i . Domination by Economic Power and by Authority 1 

Domination in the most general sense is one o£ the most important 
elements of social action. Of course, not every form of social action re- 
veals a structure of dominancy. But in most of the varieties of social 
action domination plays a considerable role, even where it is not obvious 
at first sight. Thus, for example, in linguistic communities the elevation 
by authoritative fiat of a dialect to the status of an official language of a 
political entity has very often had a decisive influence on the develop- 
ment of a large community with a common literary language, as, for 
instance, Germany. 2 On the other hand, political separation has de- 
termined the final form of a corresponding linguistic differentiation, as, 
for instance, in the case of Holland as against Germany. 3 Furthermore, 
the domination exercised in the schools stereotypes the form and the 
predominance of the official school language most enduringly and 
decisively. Without exception every sphere of social action is profoundly 
influenced by structures of dominancy. In a great number of cases the 
emergence of rational association from amorphous social action has been 
due to domination and the way in which it has been exercised. Even 
where this is not the case, the structure of dominancy and its unfolding 
is decisive in determining the form of social action and its orientation 
toward a "goal." Indeed, domination has played the decisive role par- 
ticularly in the economically most important social structures of the past 
and present, viz., the manor on the one hand, and the large-scale capi- 
talistic enterprise on the other. 

Domination constitutes a special case of power, as we shall see 

[94 A 



9 4 2 DOMINATION AND LEGITIMACY [ Ck. X 

presently. As in the case of other forms of power, those who exercise 
domination do not apply it exclusively, or even usually, to the pursuit 
of purely economic ends, such as, for example, a plentiful supply of 
economic goods. It is true, however, that the control over economic 
goods, i.e., economic power, is a frequent, often purposively willed, con- 
sequence of domination as well as one of its most important instruments. 
Not every position of economic power, however, represents domination 
in our sense of the word. Nor does domination utilize in every case 
economic power for its foundation and maintenance. But in the vast 
majority of cases, and indeed in the most important ones, this is just 
what happens in one way or another and often to such an extent that 
the mode of applying economic means for the purpose of maintaining 
domination, in turn, exercises a determining influence on the structure 
of domination. Furthermore, the great majority of all economic organiza- 
tions, among them the most important and the most modern ones, reveal 
a structure of dominancy. The crucial characteristics of any form of 
domination may, it is true, not be correlated in any clearcut fashion with 
any particular form of economic organization. Yet, the structure of 
dominancy is in many cases both a factor of great economic importance 
and, at least to some extent, a result of economic conditions. 

Our first aim here is that of stating merely general propositions re- 
garding the relationship between forms of economic organization and 
of domination- Because of this very general character, these propositions 
will inevitably be abstract and sometimes also somewhat indefinite. For 
our purpose we need, first of all, a more exact definition of what we 
mean by "domination" and its relationship to the general term "power." 
Domination in the quite general sense of power, i.e., of the possibility 
of imposing one's own will upon the behavior of other persons, can 
emerge in the most diverse forms. If, as has occasionally been done, one 
looks upon the claims which the law accords to one person against one 
or more others as a power to issue commands to debtors or to those to 
whom no such claim is accorded, one may thereby conceive of the whole 
system of modern private law as the decentralization of domination in 
the hands of those to whom the legal rights are accorded. From this 
angle, the worker would have the power to command, i.e., "domination," 
over the entrepreneur to the extent of his wage claim, and the civil 
servant over the king to the extent of his salary claim. Such a termi- 
nology would be rather forced and, in any case, it would not be of more 
than provisional value since a distinction in kind must be made between 
"commands" directed by the judicial authority to an adjudged debtor 
and "commands" directed by the claimant himself to a debtor prior to 
judgment. However, a position ordinarily designated as "dominating" 



aa 



i ] Domination by Economic Power and by Authority 9 4 3 

can emerge from the social relations in a drawing room as well as in the 
market, from the rostrum of a lecture-hall as well as from the command 
post of a regiment, from an erotic or charitable relationship as well as 
from scholarly discussion or athletics. Such a broad definition would, 
however, render the term "domination" scientifically useless. A compre- 
hensive classification of all forms, conditions, and concrete contents of 
"domination" in that widest sense is impossible here. We will only call 
to mind that, in addition to numerous other possible types, there are 
two diametrically contrasting types of domination, viz., domination by 
virtue of a constellation of interests (in particular: by virtue of a posi- 
tion of monopoly), and domination by virtue of authority, i.e., power 
to command and duty to obey. 

The purest type of the former is monopolistic domination in the 
market; of the latter, patriarchal, magisterial, or princely power. In its 
purest form, the first is based upon influence derived exclusively from 
the possession of goods or marketable skills guaranteed in some way 
and acting upon the conduct of those dominated, who remain, however, 
formally free and are motivated simply by the pursuit of their own 
interests. The latter kind of domination rests upon alleged absolute duty 
to obey, regardless of personal motives or interests. The borderline be- 
tween these two types of domination is fluid. Any large central bank or 
credit institution, for instance, exercises a "dominating" influence on 
the capital market by virtue of its monopolistic position. It can impose 
upon its potential debtors conditions for the granting of credit, thus 
influencing to a marked degree their economic behavior for the sake of 
the liquidity of its, own resources. The potential debtors, if they really 
need the credit, must in their own interest submit to these conditions 
and must even guarantee this submission by supplying collateral security. 
The credit banks do not, however, pretend thatfthey exercise "authority," 
i.e., that they claim "submission" on the part of the dominated without 
regard to the latters* own interests; they simply pursue their own in- 
terests and realize them best when the dominated persons, acting with 
formal freedom, rationally pursue their own interests as they are forced 
upon them by objective circumstances. 

Even the owner of an incomplete monopoly finds himself in that 
same position if, despite existing competition, he is able by and large 
to "prescribe" prices to both exchange partners and competitors; in other 
words, if by his own conduct he can impose upon them a way of conduct 
according to his own interest, without, however, imposing on them the 
slightest "obligation" to submit to this domination. Any type of domina- 
tion by virtue of constellation of interests may, however, be transformed 
gradually into domination by authority. This applies particularly to 



94 4 DOMINATION AND LEGITIMACY [Ck. X 

domination originally Founded on a position of monopoly. A bank, for 
instance, in order to control more effectively a debtor corporation, may 
demand as a condition for credit that some member of its board be made 
a member of the board of the debtor corporation. That board, in turn, 
can give decisive orders to the management by virtue of the Iatter's ob- 
ligation to obey. 

Or a central bank of issue causes the credit institutions to agree on 
uniform terms of credit and in this way tries, by virtue of its position of 
power, to secure to itself a continuous control and supervision of the 
relationships between the credit institutions and their customers. It may 
then utilize its control for ends of currency management or for the 
purpose of influencing the business cycle or for political ends such as, 
for instance, the preparation of financial readiness for war. The latter 
kind of use will be made in particular where the central bank itself is 
exposed to influence from the political power. Theoretically, it is con- 
ceivable that such controls can actually be established, that the ends for 
and the ways of its exercise become articulated in reglementations, that 
special agencies are created for its exercise and special appellate agencies 
for the resolution of questions of doubt, and that, finally, the controls 
are constantly made more strict. In such a case this kind of domination 
might become quite like the authoritative domination of a bureaucratic 
state agency over its subordinates, and the subordination would assume 
the character of a relationship of obedience to authority. 

The same observation can be made with respect to the domination 
by the breweries over the tavern owners whom they supply with their 
equipment, or the domination to which book dealers would have to sub- > 
mit if there should some day be a German publishers* cartel with power 
to issue and withhold retailers' licenses, or the domination of the gaso- 
line dealers by the Standard Oil Company, or the domination exercised 
through their common sales office by the German coal producers over 
the coal dealers. All. these retailers may well be reduced to employed 
sales agents, little different from linemen working outside the employers 
plant or other private employees but subject to the authority of a de- 
partment chief. The transitions are gradual from the ancient debtor's 
factual dependency on his creditor to formal servitude for debt; or, in 
the Middle Ages and in modern times, from the craftsman's dependence 
on the market-wise exporter over the various forms of dependency of 
the home industry to the completely authoritarian labor regulation of 
the sweatshop worker. And from there other gradations lead to the 
position of the secretary, the engineer, or the worker in the office or 
plant, who is subject to a discipline no longer different in its nature from 
that of the civil service or the army, although it has been created by a 



i ] Domination by Economic Power and by Authority 9 4 5 

contract concluded -in the labor market by formally "equal" parties 
through the "voluntary" acceptance of the terms offered by the em- 
ployer. More important than the difference between private and public 
employment is certainly that between the military service and the other 
dtuatkms. The latter are concluded and terminated voluntarily, while 
the former is imposed by compulsion, at least in those countries where, 
as in ours, the ancient system of mercenary service has been replaced by 
the draft. Yet, even the relationship of political allegiance can be en- 
tered into and, to some extent, be dissolved voluntarily; the same holds 
true of the feudal and, under certain circumstances, even of the patri- 
monial dependency relationships of the past. Thus even in these cases 
the transitions are but gradual to those relationships of authority, for 
instance slavery, which are completely involuntary and, for the subject, 
normally nonterminable. Obviously, a certain minimum interest of the 
subordinate in his own obeying will normally constitute one of the in- 
dispensable motives of obedience even in the completely authoritarian 
duty-relationship. Throughout, transitions are thus vague and changing. 
And yet, if we wish at all to obtain fruitful distinctions within the con- 
tinuous stream of actual phenomena, we must not overlook the clear-cut 
antithesis between factual power which arises completely out of posses- 
sion and by way of interest compromises in the market, and, on- the other 
hand, the authoritarian power of a patriarch or monarch with its appeal 
to the duty of obedience simply as such. The varieties of power are in 
no way exhausted by the examples just given- Even mere possession 

—can be a basis of power in forms other than that of the market, As we 
pointed out before,-even in socially undifferentiated situations wealth, 
accompanied by a corresponding way of life, creates prestige, correspond- 
ing to the position in present society of one who "keeps an open house" 
or the lady who has her "salon." Under certain circumstances, every 
one of these relationships may assume authoritarian traits. Domination 
in' the broader sense can be produced not only by the exchange rela- 
.tionships of the market but also by those of "society"; such phenomena 
may range all the way from the "drawing room lion" to the patented 
arbiter elegantiamm* of imperial Rome or the courts of love of the 
ladies of Provence. 8 Indeed, such situations of domination can be found 
also outside the sphere of private markets and relationships. Even with- 
out any formal power of command an "empire state" or, more correctly, 
those individuals who are the decisive ones within it either through au- 
thority or through the market, can exercise aufar-reaching and occa- 

— sfcnally even a despotic hegemony. A typical illustration is afforded by 
Prussia's position within the German Customs Union or, later, in the 
German Reich, To some, although much lesser extent, New York's posi- 



946 DOMINATION AND LEGITIMACY [ Ch. X 

tion within the United States affords another illustration. In the German 
Customs Union the Prussian officials were dominant, because their 
state's territory constituted the largest and thus the decisive market; in 
the German Reich they are paramount because they dispose of the 
largest net of railroads, the greatest number of university positions, etc., 
and can thus cripple the corresponding administrative departments of 
the other, formally equal, states. New York can exercise political power 
because it is theseat of the great financial powers. All such forms of 
power are based upon constellations of interests. They thus resemble 
those which occur in .the market, and in the course of development they 
can easily be transformed into formally regulated relationships of au- 
thority or, more correcdy, into associations with heterocephalous power' 
of command and coercive apparatus. Indeed, because of the very absence 
of rules, domination which originates in the market or other interest 
constellations may be felt to be much more oppressive than an authority 
in which the duties of obedience are set cut clearly and expressly. That 
aspect must not affect, however, the terminology of the sociologist. 

In the following discussion we shall use the term domination ex- 
clusively in that nanower sense which excludes from its scope those 
-situations in which power has its source- in a formally free interplay of 
interested parties such as occurs especially in the market. In other words, 
in our terminology domination shall be identical with authoritarian 
fower of command. 

To be more specific, domination will thus mean the situation in 
which the manifested will ^command') of the ruler or rulers is meant 
to influence the conduct of one or more others (tfee ruled') and actually 
does influence it in such a way that their conduct to a socially relevant 
degree occurs as if the ruled had made the content of the command the 
maxim of their conduct for its very own sake. Looked upon from the 
other end, this situation will be called obedience. 

further notes: i. The definition sounds awkward, especially due 
to the use of the "as if" formula, This cannot be avoided, however. The 
merely external fact of the order being obeyed is not sufficient to signify 
domination in our sense; we cannot overlook the meaning of the fact that 
the command is accepted as a "valid" norm. On the other hand, how- 
ever, the causal chain extending from the command to the actual fact of 
compliance can be quite varied. Psychologically, the command may have 
achieved its effect upon the ruled either through empathy or through 
inspiration or through persuasion by rational argument or through some 
combination of these three principal types of influence of one person 
over another. 8 In a concrete case the performance of the command may 
have been motivated by the ruled's own conviction of its propriety, or 



i ] Domination by Economic Power and by Authority 9 4 7 

by his sense of duty, or by fear, or by "dull" custom, or by a desire to 
obtain some benefit for himself. Sociologically, those differences are not 
necessarily relevant. On the other hand, the sociological character of 
domination will differ according to the basic differences in the major 
modes of legitimation. 

2. Many transitions exist, as we have seen, between that narrower con- 
cept of domination as we have defined it now and those situations of 
setting the tone in the market, the drawing room, in a discussion, etc., 
which we have discussed earlier. We shall briefly revert to some of these 
latter cases so as to elucidate more clearly the former. 

It is obvious that relationships of domination may exist reciprocally. 
In modern bureaucracy, among officials of different departments, .each is 
subject to the others' powers of command insofar as the latter have juris- 
diction. There are no conceptual difficulties involved, but where a 
customer places with a shoemaker an order for a pair of shoes, can it 
then be said that either one has control over the other? The answer 
will depend upon the circumstances of each individual case, hut almost 
always will it be found that in some limited respect the will of the one 
has influenced that of the other even against that other's reluctance and 
that, consequently, to that extent one has dominated over the other. No 
precise concept of domination could be built up, however, upon the 
basis of such considerations; and this statement holds true for all rela- 
tionships of exchange, including those of intangibles. Or what shall we 
say of the village craftsman who, as is often the case in Asia, is employed 
at fixed terms by the village? Is he, within his vocational jurisdiction, a 
ruler, or is he the ruled, and, if so, by whom? One will be inclined 
rather not to apply the concept of domination to such relationships, 
except with respect to the powers which he, the craftsman, exercises 
over his assistants or which are exercised over him by those persons who 
are to control him by virtue of their official position. As soon -as we do 
this, we narrow the concept of domination to that technical one which 
we have defined above. Yet, the position of a village chief, that is, a 
person of official authority, may be exactly like that of the village crafts- 
man. The distinction between private business and public office, as we 
know it, is the result of development and it is not at all so firmly rooted 
elsewhere as it is with us in Germany. In the popular American view, 
a judge's job is a business just as a banker's. He, the judge, simply is a 
man who has been granted the monopoly to give a person a decision 
with the help of which the latter may enforce some performance against 
another or, as the case may he, may shield himself against the claims of 
others. By virtue of this monopoly the judge enjoys direcdy or indirecdy 
a number of benefits, legitimate or illegitimate, and for their enjoyment 



9 4 8 DOMINATION AND LEGITIMACY [ Ck. X 

he pays a portion of his fees to the party boss to whom he owes his job. 
To all of these, the village chief, the judge, the banker, the crafts- 
man, we shall ascribe domination, wherever they claim, and to a socially 
relevant degree find obedience to, commands given and received as 
such. No usable concept of domination can be defined in any way other 
than by rtierenct i- power of command; but we must never forget that 
here, as everywhere else in life, everything is "in transition." It should 
he self-evident that the sociologist is guided exclusively by the factual 
existence of such a power of command, in contrast to the lawyer's in- 
terest in the theoretical content of a legal norm. As far as sociology is 
concerned power of command does not exist unless the authority which • 
is claimed by somebody is actually heeded to a socially relevant degree. 
Yet, the sociologist will normally start from the observation that "factual" 
powers of command usually claim to exist "by virtue of law/' It is exactly 
for this reason that the sociologist cannot help operating with the con- 
ceptual apparatus of the law. 



2. Direct Democracy and Rule by Notables', 

We are primarily interested in "domination" insofar as it is com- 
bined with "administration." Every domination Loth expresses itself and 
functions through administration. Every administration, on the other 
hand, needs domination, because it is always necessary that some powers 
of command be in the hands of somebody. Possibly the power of com- 
mand may appear in a rather innocent garb; the ruler may be regarded 
as their "servant" by the ruled, and he may look upon himself in that 
way. This phenomenon occurs in its purest form in the so-called, "im- 
mediately democratic" administration ["direct democracy"]. 

This kind of administration is called democratic for two reasons 
which need not necessarily coincide. The first reason is that it is based 
upon the assumption that everybody is equally qualified to conduct the 
public affairs. The second: that in this kind of administration the scope 
of power of command is kept at a minimum. Administrative functions 
are rotated, or determined by drawing lots, or assigned for short periods 
by election. All important decisions are reserved to the common resolu- 
tion of all; the administrative functionaries have only to prepare and 
carry out the resolutions and to conduct "current business" in accordance 
with the directives of the general assembly. This type of administration 
can be found in many private associations, in certain political communi- 
ties such as the Swiss Landesgemeinden or certain townships in the 
United States, or in universities (insofar as the administration lies in 



2 ] -Direct Democracy and Rtde by Notables 9 4 9 

the hands of the rector and the deans), 8 as well as in numerous other 
organizations of a similar kind- However modest the administrative func- 
tion may be, some functionary must have some power of command, and 
his position is thus always in suspense between that of a mere servant 
and that of master. It is against the very development of the latter that 
the "democratic" limits of his position are directed. However, "equality" 
and "minimization" of the dominant powers of functionaries are also 
found in many aristocratic groups as against the members of their own 
ruling layer. Illustrations are afforded by the aristocracy of Venice, 
Sparta or that of the full professors of a German university. They all 
have been using those same "democratic" forms of rotation of office, 
drawing lots, or short-term election. 

Normally this kind of administration occur? in organizations which 
fulfill the following conditions: 

i ) the organization must be local or otherwise limited in the num- 
ber of members; 2) the social positions of the members must not gready 
differ from each other; 3) the administrative functions must be relatively 
simple and stable; 4) however, there must be a certain minimum devel- 
opment of training in objectively determining ways and means. T^iis 
latter requirement exists, for instance, in the direct democratic adminis- 
trations in Switzerland and the United States just as it existed in the 
Russian mir within the confines of its traditional scope of business. We 
do not look, however, upon this kind of administration as the historical 
starting point of any typical course of development but rather as a 
marginal type case, which lends itself well as the starting point of in- 
vestigation. Neither taking turns nor drawing lots nor election are 
"primitive" forms of picking the functionaries qf an organization. 

Wherever it exists, direct democratic administration is unstable. 
With every development of economic differentiation arises the proba- 
bility that administration will fall into the hands of the wealthy. The 
reason is not that they would have superior personal qualities or more 
comprehensive knowledge, but simply that they can afford to take the 
time to carry on the administrative functions cheaply or without any 
pay and as part-time jobs. Those, however, who are forced to work for 
1 living would have to sacrifice time, which means income, and the more 
intense labor grows, the more intolerable does this sacrifice become. The 
rearers of that superiority are thus not simply those who enjoy high in- 
»mes hut rather those who have an income without personal labor or 
lerive it from intermittent labor. Under otherwise equal conditions a 
nodem manufacturer can thus get away from his work less easily and is 
lorrespondingly less available for administrative functions than a land- 
owner or a medieval merchant patrician, both of whom have not had 



9 5° DOMINATION AND LEGITIMACY [ Ch. X 

to work uninterruptedly. For the same reason the directors of the great 
university clinics and institutes are the least suited to be rectors; al- 
though they have plenty of administrative experience, their time is too 
much occupied with their regular work. Hence in the measure in which 
those who have to work are becoming unable to get away from it, direct 
democratic administration will tend to turn into rule by notables 
(honor atinres'). 

We have already met the type as that of the bearer of a special social 
honor connected with the mode of living. 9 Here we now encounter 
another indispensable requirement, viz., that capacity to take care of 
social administration and rule as an honorific duty which derives from 
economic position. Hence we shall tentatively define honoratiores as 
follows: , 

Persons who, first, are enjoying an income earned without, or with 
^ comparatively little, labor, or at least of such a kind that they can afford 
* to assume administrative functions in addition to whatever business ac- 
i tivities they may be carrying on; and who, second, by virtue of such 
Income, have a mode of life which attributes to them the social "pres- 
tige" of a status honor and thus renders them fit for being called to rule. 
Frequently such rule by konoratiores has developed in the form of 
deliberating bodies in which the affairs to be brought before the com- 
munity are discussed in advance; such bodies easily come to anticipate 
the resolutions of the community or to eliminate them and thus to 
establish, by virtue of their prestige, a monopoly of the honoraiiores. 
The development of the rule by honoratiores in this way has existed a 
long time in local communities and thus particularly in the neighbor- 
hood association. Those honoratiores of olden times had a character quite 
different, however, from those who emerge in the rationalized direct 
democracy of the present. The original qualification was old age. In all 
communities which orient their social conduct toward tradition, i.e., 
toward convention, customary law or sacred law, the elders are, so to 
speak, the natural honoratiores not only because of their prestige of 
wider experience, but also because they know the traditions. Their con- 
sent, advance approval (irpo/JcwAcv/ia), or ratification (auctoritas) 10 guar- 
antees the properness of a resolution as against the supernatural powers 
just as it is the most effective decision in a case of dispute. Where all 
members of a community are in about the same economic position, the 
"elders" are simply those oldest in the household, the clan, or the 
neighborhood. 

However, the relative prestige of age within a community is subject 
to much change. Wherever the food resources are scarce, he who can 
no longer work is just a burden. Also where war is a -ehronic state of 
affairs, the prestige of the older men is liable to sink below that of the 



2 ] Direct Democracy and Rule hy Notables 9 5 1 

warriors and there often develops a democratic bias of the younger 
groups against the prestige of old age (sexagenarios de fonte).^ The 
same development occurs in periods of economic or political revolution, 
whether violent or peaceful, and also where the practical power of reli- 
gious ideas and thus the veneration of a sacred tradition is little de- 
veloped or on the decline. The prestige of old age is preserved, on .the 
other hand, wherever the objective usefulness of experience or the 
subjective power of tradition are estimated highly. 

Where the elders are deposed, power normally accrues not to youth 
but to the bearers of some other kind of social prestige. In the case of 
economic or status differentiation the councils of elders (ytpovala, sen- 
«frws) may retain its name, but de facto it will be composed of honora- 
tiores in the sense discussed above, i.e., "economic" hqnoratiores, or 
bearers of status honor whose power ultimately is also based upon 
their wealth. 

On the other hand, the battle cry that a "democratic" administra- 
tion must be obtained or preserved may become a powerful tool of the 
poor in their fight against the honoratiores, but also of economically 
powerful groups which are not admitted to status honor. In that case 
democratic administration becomes a matter of struggle between political 
parties, especially since the honoratiores, by virtue of their status pres- 
tige and the dependency on them of certain groups, can create for 
themselves "security troops" 1 * from among the poor. As soon as it is 
thus made the object of a struggle for power, direct democratic adminis- 
tration loses its specific feature, the undeveloped state of domination. 
A political party, after all, exists for the very purpose of fighting for 
domination in the specific sense, and it thus necessarily tends toward 
a strict hierarchical structure, however carefully it may be trying to 
hide this fact. 

Something similar to this social alienation of the members, who 
lived in substantially the same manner in the marginal case of "pure" 
democracy, occurs where the group grows beyond a certain size or 
where the administrative function becomes too difficult to be satisfac- 
torily taken care of by anyone whom rotation, the lot, or election may 
happen to designate. The conditions of administration of mass structures 
ire radically different from those obtaining in small associations resting 
upon neighborly or personal relationships. As soon as mass administra- 
tion is involved, the meaning of democracy changes so radically that it 
no longer makes sense for the sociologist to ascribe to the' term the 
fame meaning as in the case discussed so far. 

The growing complexity of the administrative tasks and the sheer 
expansion of their scope increasingly result in the technical superiority 
)f those who have had training and experience, and will thus inevitably 



9 5 2 DOMINATION AND LEGITIMACY [ Ck. X 

favor the continuity of at least some of the functionaries. Hence, there 
always exists the probability of the rise .of a special, perennial structure 
for administrative purposes, which of necessity means for the exercise 
of rule. As mentioned before, this structure may be one of konoratiores, 
acting as equal "colleagues," or it may turn out to be "monocratic," so 
that all functionaries are integrated into a hierarchy culminating in 
one single head. 



3. Organizational Structure and 'the Bases of Legitimate 
Authority 

The predominance of the members of such a structure of domination 
rests upon the so-called "law of the small number." The ruling minority 
can quickly reach understanding among its members; it is thus able at 
any time quickly to initiate that rationally organized action which is 
necessary to preserve its position of power. Consequently it can easily 
squelch any action of the masses (Massen- oder Gemeinschaftshandeln') 
threatening its power as long as the opponents have not created the same 
kind of organization for the planned direction of their own struggle 
for domination. Another benefit of the small number is the ease of 
secrecy as to the intentions and resolutions of the rulers and the state 
of their information; the larger the circle grows, the more difficult or 
improbable it becomes to guard such secrets. Wherever increasing stress 
is placed upon "official secrecy," we take it as a symptom of either an 
intention of the rulers to tighten the reins of their rule or of a feeling 
on their part that their rule is being threatened. But every domination 
established as a continuing one must in some decisive point be secret 
rule. 

Generally speaking, however, the specific arrangements for domina- 
tion, as they are established by association, show the following char- 
acteristics : 

A circle of people who are accustomed to obedience to the orders 
of leaders and who also have a personal interest in the continuance of 
the domination by virtue of their own participation and the resulting 
benefits, have divided among themselves the exercise of those functions 
which will serve the continuation of the domination and are holding 
themselves continuously ready for their exercise. (This is what is meant 
by "organization.")" Those leaders who do not derive from grant by 
others the powers of command claimed and exercised by them, we shall 
call masters; while the term apparatus shall mean the circle of those 
persons who are holding themselves at the disposal of the master or 
masters in the manner just defined. 



3 } Structure and Bases of Legitimate Authority 9 5 3 

The sociological character of the structure of any particular case 
of domination is determined by the kind of relationship between the 
master or masters and the apparatus, the kind of relationship of both 
to the ruled, and by its specific organizational structure, i.e., its specific 
way of distributing the powers of command. There can also be con- 
sidered, of course, a good many other elements, which may then be 
used to establish a great number of varying sociological classifications. 
For our limited purposes, we shall emphasize those basic types of domi- 
nation which result when we search for the ultimate grounds of the 
validity of a domination, in other words, when we inquire into those 
grounds upon which there are based the claims of obedience made by 
the master against the "officials" and of both against the ruled. 

We have encountered the problem of legitimacy already in our dis- 
cussion of the legal order. Now we shall have to indicate its broader 
significance. For a domination, this kind of justification of its legitimacy 
is much more than, a matter of theoretical or philosophical speculation; 
it rather constitutes the basis of very ka\ differences in the empirical 
structure of domination. The reason for this fact lies in the generally 
observable need of any power, or even of any advantage of life, to 
justify itself. 

The fates of human beings are not equal. Men differ in their 
states of health or wealth or social status or what not. Simple observa- 
tion shows that in every such situation he who is more favored feels 
the never ceasing need to look upon his position as in some way 
"legitimate," upon his advantage as "deserved," and the other's disadvan- 
tage as being brought about by the latter's "fault." That the purely 
accidental causes of the difference may be ever so obvious makes no 
d'Pt'erence. 

This same need makes itself felt in the relation between positively 
and negatively privileged groups of human beings. Every highly privi- 
leged group develops the myth of its natural, especially its blood, 
superiority. Under conditions of stable distribution of power and, con- 
sequently, of status order, that myth is accepted by the negatively*privi- 
leged strata. Such a situation exists as long as the masses continue in 
that natural state of theirs in which thought about the order of domi- 
nation remains but little developed, which means, as long as no urgent 
needs render the state of affairs "problematical." But in times in which 
the class situation has become unambiguously and openly visible to 
everyone as the factor determining every man's individual fate, that 
very myth of the highly privileged about everyone having deserved 
his particular lot has often, become one of the most passionately hated 
objects of attack; one ought only to think of certain struggles of late 
Antiquity and of the Middle Ages, and quite particularly of the class 



9 5 4 DOMINATION AND LEGITIMACY [ Ck. X 

straggle of out own time in which such myths and the claim of legiti- 
mate domination based upon it have been the target of the most power- 
ful and most effective attacks. 

Indeed, the continued exercise of every domination (in our techni- 
cal sense of the word) always has the strongest need of self-justifica- 
tion through appealing to the principles of its legitimation. Of such 
ultimate principles, there are only three : 

The "validity" of a power of command may be expressed, first, in a 
system of consciously made rational rules (which may be either agreed 
upon or imposed from above), which meet with obedience as generally 
binding norms whenever such obedience is claimed by him whom the 
rule designates. In that case every single bearer of powers of command 
is legitimated by that system of rational norms, and his power is legiti- 
mate insofar as it corresponds with the norm. Obedience is thus given 
to the norms rather than to the person. 

The validity of a power of command can also rest, however, upon 
personal authority. 

Such personal authority can, in turn, be founded upon the sacred- 
ness of tradition, i.e., of that which is customary and has always been 
so and prescribes obedience to some particular person. 

Or, personal authority can have its source in the very opposite, 
viz., the surrender to the extraordinary, the belief in charisma, i.e., 
actual revelation or grace resting in such a person as a savior, a 
prophet, or a hero. 

The "pure" types of domination correspond to these three possible 
types of legitimation. The forms of domination occurring in historical 
reality constitute combinations, mixtures, adaptations, or modifications 
of these "pure" types. 

nationally regulated association within a structure of domination 
finds its typical expression in bureaucracy. Traditionally prescribed 
social action is typically represented by fatriarchalism. The charismatic 
structure of domination rests upon individual authority which is based 
neither upon rational rules nor upon tradition. Here too we shall proceed 
from the type that is the most rational and the one most familiar to 
us: modern bureaucratic administration. 



NOTES 

i . Unless otherwise indicated, all notes are by Rheinstein. 

2. Among numerous German dialects and ways in which the language was 
used in poetry, literature, and polite parlance, acceptance as the standard was 
achieved by that form which was used in the late fourteenth and fifteenth cen- 



Notes 955 

tunes by the imperial chancery, first in Prague and then in Vienna, especially 
when » style close to it was used by Luther in his translation of the Bible. 

3. The low-German dialect spoken in the present Netherlands achieved, in 
the form in which it is used in the Province of South Holland, the status of a 
separate language when the United Provinces separated from Germany and the 
Dutch dialect became the language of officialdom and of the Bible translation 
(Statenbijbel, 1626-1635). Significantly no such status as a separate language 
was achieved by any one of the Swiss German dialects; as there was no central 
chancery in the loose Swiss Confederation, High German remained the official 
language in spite of the political separation from Germany, which took place a 
century earlier than that of the Netherlands. 

4. Arbiter eUgmtiantm — According to Tacitus (Ann. XVI 18), Gaius Pe- 
tronius, who is probably identical with the satirist Petronius Arbiter, was called 
by Nero the "arbiter of elegance" to whose judgment he bowed in matters of 
taste. Petronius and his title have been popularized through Henry Sienkiewicz' 
novel Quo Vadis. 

5. On courts of love, tee Part Two, ch. I, n. 10, 

6. On empathy and inspiration as factors influencing the attitude of other 
persons, see Part Two, ch. I:»:b. 

7. Of. above, PartOne,di.III:i9f.(R) 

8. At the German universities both the president (Rektor) and the deans 
are elected hy the full professors for one-year terms; together with the senate they 
administer the affairs of the university and represent it, especially as against the 
ministry of education, by which the universities are supervised. 

9. Seech.IX:6:Eand"Soc.ofLaw, , 'ch.VIII:(v.(R) ' 

10. Auctorltas [sc. patrum] Oat.) — the approval of the Roman Senate as 
required for the validity of certain resolutions or the popular assemblies (comitia); 
on the varying phrases of political significance of the requirement, see Jolowicz, 
Historical Introduction to Ronton Law (i9$2~), 30, 

1 1 . "Men of sixty, off the bridge!" — a Roman proverb of uncertain origin, 
which was generally associated by ancient authors with an imputed old practice of 
human sacrifice under which useless old men were thrown off a bridge into the 
Tiber. A less generally held interpretation, which Weber has in mind here, is re- 
ported in a fragment of Varro's de vita yop. Rom. lib. IV (II. 1 1 ); this derives the 
saying from the exclusion of men over military age from the voting assembly of 
the people in its military array on the campus Martius, access to which was over a 
bridge. Cf. art. "sexagenaries" in Pauly-Wissowa, RE, and ser., II (1923), 2o$t. 
(Rh/Wi) 

12. Weber uses the word Schutztmppe, a term primarily known at the. time 
'as the designation for the colonial troops in the German overseas holdings; par- 
ticularly prominent was the Schutztruj>pe in Southwest Africa, which repressed 
the Hereto uprising between 1904 and 1908. (R) 

13. Cf. Part One, ch. IIIM3. (R) 



CHAPTER A 1 

BUREAUCRACY 



i . Characteristics of Modern Bureaucracy 

Modern officialdom functions in the following manner: 
J. There is the principle of official jurisdictional areas, which are 

generally ordered by rules, that is, by laws or administrative regulations. 

This means: 

(i) The regular activities required For the purposes of' the bureau- 

cratically governed structure are assigned as official duties. 

(2) The authority to give the commands required for the discharge 
or these duties is distributed in a stable way and is strictly delimited by 
rules concerning the coercive means, physical, sacerdotal, or otherwise, 
whkh may be placed at the disposal of officials. 

(3) Methodical provision is made for the regular and continuous 
fulfillment of these duties and for the exercise of the corresponding 
rights; only persons who qualify under general rules are employed. 

in the sphere of the state these three elements constitute a bureau- 
craLie agency, in the sphere of the private economy they constitute a 
bureaucratic enterprise. Bureaucracy, thus understood, is fully developed 
in political and ecclesiastical communities only in the modern state, and 
in the private economy only in the most advanced institutions of capital- 
ism. Permanent agencies, with fixed jurisdiction, are not the historical 
rule but rather the exception. This is even true of large political struc- 
tures such as those of the ancient Orient, the Germanic and Mongolian 
empires of conquest, and of many feudal states. In all these cases, the 
ruier executes the most important measures through personal trustees, 
table-companions, or court-servants. Their commissions and powers are 
not precisely delimited and are temporarily called into being for each 
case. 

' [956] 



i ] Characteristics of Modern Bureaucracy 9 5 7 

II, The principles of office hierarchy and of channels of appeal 
Qnstanzenzug) stipulate a clearly established system of super- and sub- 
ordination in which there is a supervision of the lower offices by the 
higher ones. Such a system offers the governed the possibility of appeal- 
ing, in a precisely regulated manner, the decision of a lower office to 
the corresponding superior authority. With the full development of the 
bureaucratic type, th^ office hierarchy is monocrat'tcally organized. The 
principle of hierarchical office authority is found in all bureaucratic 
structures: in state and ecclesiastical structures as well as in large party 
organizations and private enterprises. It does not matter for the char- 
acter of bureaucracy whether its authority is called "private" or "public." 

When the principle of jurisdictional "competency" is fully carried 
through, hierarchical subordination — at least in public office — does not 
mean that the "higher" authority is authorized simply to take over the 
business of the "lower." Indeed, the opposite is the rule; once an office 
has been set up, a new incumbent will always be appointed if a 
vacancy occurs. 

III. The management of the modern office is based upon written 
documents (the "hies"), which are preserved in their original or draft 
form, and upon a staff of subaltern officials and scribes of all sorts. The 
body of officials working in an agency along with the respective ap- 
paratus of material implements and the files makes up a bureau (in 
private enterprises often called the "counting house," Kontor). 

In principle, the modem organization of the civil service separates 
the bureau from the private domicile of the official and. in general, 
segregates official activity from the sphere of private life. Public monies 
and equipment are divorced from the private property of the official. 
This condition is everywhere the product of a long development. Nowa- 
days, it is found in public as well as in private enterprises; in the latter, 
the principle extends even to the entrepreneur at the top. In princi- 
ple, the Kontor (office) is separated from the household, business from 
private correspondence, and business assets from private wealth. The 
more consistently the modern type of business management has been 
carried through, the more are these separations the case. The beginnings 
of this process are to be found as early as the Middle Ages. 

It is the peculiarity of the modern entrepreneur that he conducts 
himself as the "first official" of his enterprise, in the very same way 
in which the ruler of a specifically modern bureaucratic state [Frederick 
II of Prussia] spoke of himself as "the first servant" of the state. The 
idea that the bureau activities of the state are intrinsically different in 
character from the management of private office^ is a continental Euro- 



9 5 8 BUREAUCRACY [ Ck. XI 

pean notion and, by way of contrast, is totally foreign to the American 
way. 

IV. Office management, at least all specialized office management 
— and sucfllf Management is distinctly modem — usually presupposes 
thorough training in 3 field of specialization, finis, too, holds increasingly 
for the modem executive and employee of ai private enterprise, just as it 
does for the state officials. 

V. When the officers fully developed, official activity demands the 
full working capacity of the official, irrespective of the fact, that the 
length of his obligatory working hours in the bureau may be limited. 
In the normal case, this too is only the product of a long development, 
in the public as well as in the private office. Formerly the normal state 
of affairs was the reverse: Official business was discharged as a secondary 
activity, 

VI. The management of the office follows general rules, which are 
more or less stable, more or less exhaustive, and which can be learned. 
Knowledge of these rules represents a special technical expertise which 
the officials possess. It involves jurisprudence, administrative or busi- 
ness management. 

The reduction of modem office management to rules is deeply 
embedded in its very nature. The theory of modern public administra- 
tion, for instance, assumes that the authority to order certain matters by 
decree — which has been legally granted to an agency — does not entitle 
the agency to regulate the matter by individual commands given for 
each case, but only to regulate the matter abstractly. This stands in 
extreme contrast to the regulation of all relationships through individual 
privileges and bestowals of favor, which, as we shall see, is absolutely 
dominant in patrimonialism, at least in so far as such relationships are 
not fixed by sacred tradition. 



2. The Position of the Official Within and Outside of 
Bureaucracy 

All this results in the following for the internal and external posi- 
tion of the official : 



I. OFFICE HOLDING AS A VOCATION - 

That the office is a "vocation" (Jieruf) finds expression, first, in the 
requirement of a prescribed course of training, which demands the 
entire working capacity for a long period of time, and in generally 



2 ] The Position of the Official 959 

prescribed special examinations as prerequisites of employment. Further- 
more, it finds expression in that the position of the official is in the 
nature of a "duty" (Pflicht). This determines the character of his rela- 
tions in the following manner: Legally and actually, office holding is 
not considered ownership of a source of income, to be exploited for 
rents or emoluments in exchange for the rendering of certain services, 
as was normally the case during the Middle Ages and frequently up 
to the threshold of recent times, nor is office holding considered a 
common exchange of services, as in the case of free employment con- 
tracts. Rather, entrance into an office, including one in the private 
economy, is considered an acceptance of a specific duty of fealty to the 
purpose of the office (Amtstreue) in return for the grant of a secure 
existence. It is decisive for the modem loyalty to an office that, in the 
pure type, it does not establish a relationship to a person, like the 
vassals or disciple's faith under feudal or patrimonial authority, but 
rather is devoted to impersonal and functional purposes. These pur- 
poses, of course, frequendy gain an ideological halo from cultural 
values, such as state, church, community, party or enterprise, which 
appear as surrogates for a this-worldly or other-worldly personal mas- 
ter and which are embodied by a given group. 

The political official — at least in the fully developed modern state 
— is not considered the personal servant of a ruler. Likewise, the bishop, 
the priest and the preacher are in fact no longer, as in early Christian 
times, carriers of a purely personal charisma, which offers other-worldly 
sacred values under the personal mandate of a master, and in principle 
responsible only to him, to everybody who appears worthy of tbem and 
asks for them. In spite of the partial survival of the old theory, they 
have become officials in the service of a functional purpose, a purpose 
which in the present-day "church" appears at once impersonated and 
ideologically sanctified. 



II. THE SOCIAL POSITION OF THE OFFICIAL 

A. social esteem and STATU* cofvfvtion. Whether he is in a 
private office or a public bureau, the modern official, too, always strives 
for and usually attains a distincdy elevated social esteem vis-a-vis the 
governed. His social position is protected by prescription about rank 
order and, for the political official, by special prohibitions of the crimi- 
nal code against "insults to the office" and "contempt" of state- and 
church authorities. 

The social position of the official is normally highest where, as in 
old civilized countries, the following conditions prevail: a strong de- 



960 . BUREAUCRACY [ Ch. XI 

mand for administration by trained experts; a strong and stable social 
differentiation, where the official predominantly comes from socially 
and economically privileged strata because of the social distribution 
of power or die costliness of the required training and of status con- 
ventions. The possession of educational certificates or patents — discussed 
below (sec. 1 3 a) — is usually linked with qualification for office; naturally, 
this enhances the "status element" in the social position of the official. 
Sometimes the status factor is explicitly acknowledged; for example, 
in the prescription that the acceptance of an aspirant to an office career 
depends upon the consent ("election') by the members of the official 
body. This is the case in the officer corps of the German army. Similar 
phenomena, which promote a guild-like closure of officialdom, are 
typically found in the patrimonial and, particularly, in prebendal official- 
dom of the past. The desire to resurrect such policies in changed forms 
is by no means infrequent among modem bureaucrats; it played a role, 
for instance, in the demands of the largely proletarianized [zemstvo-] 
officials (the tretii element) during the Russian revolution [of 1905]. 

Usually the social esteem of the officials is especially low where the 
demand for expert administration and the bold of status conventions 
are weak. This is often the case in new settlements by virtue of the 
great economic opportunities and the great instability of their social 
stratification: witness the United States. 

B. APPOINTMENT VERSUS ELECTION: CONSEQUENCES FOR EX- 
PERTISE. Typically, the bureaucratic official is appointed by a superior 
a authority. An official elected by the governed is no longer a purely 
bureaucratic figure. Of course, a formal election may hide an appoint- 
ment — in politics especially by party bosses. This does not depend upon 
legal statutes, but upon the way in which the party mechanism func- 
tions. Once firmly organized, the parties can tutn a formally free elec- 
tion into the mere acclamation of a candidate designated by the party 
chief, or at least into a -contest, conducted according to certain rules, 
for the election of one of two designated candidates. 

In all circumstances, the designation of officials by means of an 
election modifies the rigidity of hierarchical subordination. In princi- 
ple, an official who is elected has an autonomous position vis-a-vis his 
superiors, for he does not derive his position "from above" but "from 
below," or at least ' not from a superior authority of the official hier- 
archy but from powerful party men ("bosses"), who also determine 
his further career. The career of the elected official is not primarily 
dependent upon his chief in the administration. The official who is ■ 
not elected, but appointed by a master, normally functions, from a 
technical point of view, more accurately because it is more likely that 



z ] The Position of the Official 9 6 1 

purely functional points of consideration and qualities will determine 
his selection and career. As laymen, the governed can evalute the 
expert qualifications of a candidate for office only in terms of experi- 
ence, and hence only after his service. Moreover, if political parties 
are involved in any sort of selection of officials by election, they quite 
naturally tend to give decisive weight not to technical competence but 
to the services a follower renders to the party boss. This holds tor the 
designation of otherwise freely elected officials by party bosses when 
they determine the slate of candidates as well as for the free appoint- 
ment of officials by a chief who has himself been elected. The contrast, 
however, is relative: substantially similar conditions hold where legiti- 
mate monarchs and their subordinates appoint officials, except that 
partisan influences are then less controllable. 

Where the demand for administration by trained experts is con- 
siderable, and the party faithful have to take into account an intel- 
lectually developed, educated, and free "public opinion," the use of 
unqualified officials redounds upon the party in power at the next elec- 
tion. Naturally, this is more likely to happen when the officials are 
appointed by the chief. The demand for a trained administration now 
exists in the United States, but wherever, as in the large cities, immi- 
grant votes are "corralled," there is, of course, no effective public 
opinion. Therefore, popular election not only of the administrative 
chief but also of his subordinate officials usually endangers, at least in ' 
very large administrative bodies which are difficult to supervise, the 
expert qualification of the officials as well as the precise functioning 
of the bureaucratic mechanism, besides weakening the dependence of 
the officials upon the hierarchy. The superior qualification and integrity 
of Federal judges appointed by the president, as over and against 
elected judges, in the United States is well known, although both types 
of officials are selected primarily in terms of party considerations. The 
great changes in American metropolitan administrations demanded by 
reformers have been effected essentially by elected mayors working 
with an apparatus of officials who were appointed by them. These 
reforms have thus come about in a "caesarist" fashion. Viewed tech- 
nically, as an organized form of domination, the efficiency of "caesar- 
ism," which often grows out of democracy, rests in general upon the 
position of the "caesar" as a free trustee of the masses (of the army 
or of the citizenry), who is unfettered by tradition. The "caesar" is 
thus the unrestrained master of a body of highly qualified military 
officers and officials whom he selects freely and personally without 
regard to tradition or to any other impediments. Such "rule of the per- 



Q 6 2 BUREAUCRACY [ Ck. XI 

sonal genius," however, stands in conflict with the formally "demo- 
cratic" principle of a generally elected officialdom. 

C. TENURE AND THE INVERSE RELATIONSHIP BETWEEN JUDICIAL 

independence and social prestige. Normally, the position of the 
official is held for life, at least in public bureaucracies, and this is in 
creasingly the case for all similar structures. As a factual rule, tenure for 
life is presupposed even where notice can be given or periodic reap- 
pointment occurs. In a private enterprise, the fact -of such tenure 
normally differentiates the official from the worker. Such legal or actual 
life-tenure, however, is not viewed as a proprietary right of the official to the 
possession of office as was the case in many structures of authority of the 
past. Wherever legal guarantees against discretionary dismissal or trans- 
fer are developed, as in Germany for all judicial and increasingly also 
for administrative officials, they merely serve the purpose of guarantee- 
ing a strictly impersonal discharge of specific office duties. 

Within the bureaucracy, therefore, the measure of "independence" 
legally guaranteed in this manner by tenure is not always a source 
of increased status for the official whose position is thus secured. In- 
deed, often the reverse holds, especially in communities with an old 
culture and a high degree of differentiation. For the subordination 
under the arbitrary rule of the master also guarantees the maintenance 
of the conventional seigneurial style of living for the official, and it does 
this the better, the stricter it is. Therefore the conventional esteem for 
the official may rise precisely because of the absence of such legal 
guarantees, in the same way as, during the Middle Ages, the esteem 
of the minhteriales rose at the expense of the freeman and that of the 
king's judge at the expense of the folk judge. In Germany, the mili- 
tary officer or the administrative official can be removed from office at 
any time, or at least far more readily than the "independent" judge, 
who never pays with loss of his office for even the grossest offense 
against the "code of honor" or against the conventions of the salon. For 
this very reason the judge is, if other things are equal, considered less 
socially acceptable by "high society" than are officers and administrative 
officials whose greater dependence on the master is a better guarantee 
for the conformity of their life style with status conventions. Of course, 
the average official strives for a civil-service law which in addition to 
materially securing his old age would also provide increased guarantees 
against his arbitrary removal from office. This striving, however, has 
its limits. A very strong development of the "right to the office" naturally 
makes it more difficult to staff offices with an eye to technical efficiency 
and decreases the career opportunities of ambitious candidates. This, 
as well as the preference of officials to be dependent upon their equals 



2 ] - The Position of the Official 96 3 

rather than upon the socially inferior governed strata, makes for the 
fact that officialdom on the whole does not "suffer" much under its 
dependency from the "higher-up." The present conservative movement 
among the Baden clergy, occasioned by the anxiety of a threatening 
separation of church and state, was admittedly determined by the desire 
not to be turned "from a master into a servant of the parish." 1 

D. RANK AS THE BASIS OF REGULAR SALARY. The official 3S a 

rule receives a monetary compensation in the form of a salary, normally 
fixed, and the old age security provided by a pension. The salary is not 
measured like a wage in terms of work done, hut according to "status," 
that is, according to the kind of function (the "rank") and, possibly, 
according to the length of service. The relatively great security of the 
official's income, as well as the rewards of social esteem, make the 
office a sought-after position, especially in countries which no longer 
provide opportunities for colonial profits. In such countries, this situa- 
tion permits relatively low salaries for officials. 

E. FIXED CAREER LINES AND STATUS RIGIDnT. The official is Set 

for a "career" within the hierarchical order of the public service. He 
expects to move from the lower, less important and less well paid, to 
the higher positions. The average official naturally desires a mechanical 
fixing of the conditions of promotion: if not of the offices, at least of 
the salary levels. He wants these conditions fixed in terms of "seniority," 
or possibly according to grades achieved in a system of examinations. 
Here and there, such grades actually form a character indelebilis of the 
official and have lifelong effects on his career. To this is joined the de- 
sire to reinforce the right to office and to increase status group closure 
and economic security. All of this makes for a tendency to consider 
the offices as "prebends" of those qualified by educational certificates. 
The necessity of weighing general personal and intellectual qualifications 
without concern for the often subaltern character of such patents of 
specialized education, has brought it about that the highest political 
offices, especially the "ministerial" positions, are as a rule filled without 
reference to such certificates. 



3. Monetary and Financial Presuppositions of 
Bureaucracy 

The development of the money economy is a presupposition of a 
modern bureaucracy insofar as the compensation of officials today takes 
the form of money salaries. The money economy is of very great impor- 



964 BUREAUCRACY [ Ch. XI 

tance for the whole bearing c^ bureaucracy, yet by itself it is by no 
means decisive for the existence of bureaucracy. 

Historical examples of relatively clearly developed and quantita- 
tively IsTgt: bureaucracies are: (aJ^Egypt, during the period of the New 
Kingdom, although with strong patrimonial elements; (b) die later 
Roman -Principate, and especially the Diocletian, monarchy and the 
Byzantine polity which developed out of it; these, top, contained strong 
feudal and patrimonial admixtures; (c) the Roman. Catholic Churchy 
increasingly so since the end if the thirteenth century, (d) China, from 
the time of Shi Hwangti ui;til die present, but with strong patrimonial 
and prebendal elements; (t 1 i . -2/gr purer forms, the modern European 
states and, increasingly, all public bodies since the 'time of f. princely 
absolutism; (0 the large modern capitalist enterprise, proportional to 
its size and complexity. ( % 

To a very great extent or predominantly, <""ses (a) to (d) rested upon 
compensation of the officials in kind. They nevertheless displayed many 
of the traits and effects characteristic of bureaucracy. The historical 
mode] of afl later bureaucracies — the New Kingdom in Egypt- -is at the 
same time one of the most grandiose examples of an* organized natural 
economy. This coincidence of bureaucracy and natural economy is 
understandable oaly in view of the quite unique conditions that existed 
in Egypt, for the reservations — they are quite considerable — which one 
must make in classifying these structures as bureaucracies are based 
precisely on the prevalence of a natural economy. A certain measure 
of a developed money economy is the normal precondition at least for 
the unchanged survival, if not for the establishment, of pure bureau- 
cratic administrations. 

According to historical experience, without a money economy the 
bureaucratic structure can hardly avoid undergoing substantial internal 
changes, or indeed transformation into another struc'ure. The allocation 
of fixed income in kind from the magazines of the lord or from his 
current intake — which has been the rule in Egypt and China for mil- 
lennia and played an important part in the later Roman monarchy as 
well as elsewhere — easily means a first step toward appropriation of 
the sources of taxation by the official and their exploitation as private 
property. Income rn kind has protected the official against the often 
sharp fluctuations in the purchasing power of money. But whenever the 
lord's power subsides, payments in kind, which are based on taxes in 
kind, tend to become irregular. In this case, the official will have direct 
recourse to the tributaries of his bailiwick, whether or not he is author- 
ized. The idea of protecting the official against such oscillations by 
mortgaging or transferring the levies and therewith the power to tax, 



3 ] __ Economic Presuppositions of Bureaucracy 965 

or by transferring the use of profitable lands of the lord to the official, 
is close at hand, and every central authority which is not tighdy organ- 
ized is tempted to take this course, either voluntarily or because the 
officials compel it to do so. The official may satisfy himself with the use 
of these resources up to the level of his salary claim and then hand 
over the surplus. But this solution contains strong temptations and 
therefore usually yields results unsatisfactory to the lord. Hence the 
alternative process involves fixing the official's monetary obligations. 
This often occurred in the early history of German officialdom, and it 
happened on the largest scale in all Eastern satrap administrations: the 
official hands over a stipulated amount and retains the surplus. 



A. EXCURSUS ON TAX-FARMING 

In such cases the official is economically in a position rather similar 
to that of the entrepreneurial tax-farmer. Indeed, office-farming, includ- 
ing even the leasing of office to the highest bidder, is regularly found. 
In the private economy, the transformation of the [Carolingian] mano- 
rial or villicatio structure into a system of tenancy relations is one of 
the most important among numerous examples. By tenancy arrange- 
ments the lord can transfer the trouble of transforming his income-in- 
land into money-income to the office-farmer or to the official who must 
render a fixed sum. This seems to have been the case with some Oriental 
governors in Antiquity. And above all, the farming out of public tax 
collection in lieu of the lord's own management of tax-gathering served 
this purpose. One consequence is the possibility of the advance, so very 
important in the history of public finances, towards regular budgeting: 
A firm estimate of revenues, and correspondingly of expenditures, can 
take the place of the hand-to-mouth living from the immediate but un- 
predictable inflows which is so typical of all early stages of public 
•finances. On the other hand, however, the control and full exploita- 
tion of the fiscal resources for the lord's own use is surrendered and 
perhaps, depending upon the measure of freedom left to the official or 
the office- or tax-farmer, the long-run yield capacity even endangered 
by ruthless exploitation, since a capitalist will not have the same long- 
run interest in preservation of the subjects' ability to pay as the political 
lord. 

The lord seeks to safeguard himself against this loss of control by 
regulations. The mode of tax-farming or the transfer of taxes can thus 
vary widely; depending upon the distribution of power between the 
lord and the fanner, the latter's interest in the full exploitation of the 



966 BUREAUCRACY [ Ch. XI 

paying capacity of the subjects or the lord's interest in the conservation 
of this capacity may predominate. The nature of the tax-farming system 
in the Ptolemaic empire, for instance, was clearly determined by the 
balance of the joint or the opposing influence of these motives: the 
elimination of oscillations in the yields, the possibility of budgeting, the 
safeguarding of the subjects' capacity to. pay by protecting them against 
uneconomical exploitation, and state control of the tax-farmer's yields 
for the sake of appropriating the maximum possible. As in Hellas and 
in Rome, the tax-farmer was still a private capitalist. The collection 
of the taxes, however, was bureauciatically executed and controlled by 
the Ptolemaic state. The farmer's profit consisted only in a share of the 
potential surplus over and above his fee which, in fact, constituted a 
minimum guarantee [to the state]; his risk consisted in the possibility 
of yields that were lower than this sum. 



B. OFFICE PURCHASE, PREBENDAL AND FEUDAL ADMINISTRATION 

The purely economic conception of the office as a private source of 
income for the official can also lead to the direct purchase of offices. 
This occurs when the lord finds himself in a position in which he re- 
quires not only a current income but money capital — for instance, for 
warfare or for debt payments. The purchase of office as a regular insti- 
tution has existed especially in modem states — in the Papal State as 
well as in France and England, in the cases of sinecures as well as of, 
more important offices (for example, officers' commissions) well into 
the nineteenth century. In individual cases, the economic meaning of 
such a purchase of office can be altered so that the purchasing sum is 
pardy or wholly in the nature of bail deposited to assure faithful serv- 
ice, but this has not been the rule. 

Every sort of assignment of usufructs, tributes and services claimed 
by the lord to the official for personal exploitation always means an 
abandonment of typical bureaucratic organization. The official in such 
positions has a property right to his office. This is the case to a still 
higher degree when official duty and compensation are interrelated 
in such a way that the official does not transfer to the lord any of the 
yields gained from the objects left to him, but handles these objects 
for his private ends and in turn renders to the lord services of a per- 
sonal or a military, political, or ecclesiastical character. 

We shall speak of prebends and of a -prebendal organization of 
offices in all cases of life-long assignment to officials of rent payments 
deriving from material goods, or of the essentially economic usufruct of 



i 



3 ] * Economic Presuppositions of bureaucracy 9&7 

land or other sources of rent, in compensation for the fulfillment of real 
or fictitious duties of office, for the economic support of which the goods 
in question have been permanently allocated by the lord. 

The transition [from such prebendal organization of office] to 
salaried officialdom is quite fluid. Very often the economic endowment 
of priesthoods has been "prebendal," as in Antiquity and the Middle 
Ages, and even up to the modern period. But in almost all periods the 
same form has been found also in other areas. In Chinese sacerdotal 
law, the prebendal character of all offices forced the mourning official 
to resign his office, for during the ritual mourning period for the father 
or other household authorities abstention from the enjoyment of pos- 
sessions was prescribed — and the office was considered purely a source 
for rent. (Originally this prescription was aimed at avoiding the ill-will 
of the deceased master of the house, to whom the possessions had 
belonged.) 

When not only economic but also lordly [political] rights are 
bestowed [upon the official] to exercise on his own, and when this is 
associated- with the stipulation of personal services to the lord to be ren- 
dered in return, a further step away from salaried bureaucracy has 
been taken. The nature of the prerogatives conferred can vary; for 
instance, in the case of a political official they may tend more toward 
seigneurial or more toward office authority. In both instances, but most 
definitely in the latter case, the specific nature of bureaucratic organiza- 
tion is completely destroyed and we enter into the realm of feudal 
organization of domination. 

All assignments of services and usufructs in kind as endowments 
for officials tend to loosen the bureaucratic mechanism, and especially 
to weaken hierarchic subordination, which is most strictly developed 
in the discipline of modern officialdom. A precision similar to that of the 
contractually employed official of the modern Occident can only be 
attained — under very energetic leadership— where the subjection of 
the officials to the lord is also personally absolute, i.e., where slaves or 
employees treated like slaves are used for administration. 



C. EXCURSUS ON THE SUPERIORITY OF STATUS INCENTIVES OVER 
PHYSICAL COERCION 

In the natural economies of the ancient world, the Egyptian officials 
were slaves of the Pharaoh, if not legally, then in fact. The Roman 
latifundia owners preferred to commission slaves with the direct man- 
agement of money matters, because of the possibility of subjecting them 



968 BUREAUCRACY [ Cfe. XI 

to torture. In China, similar results have been sought by the prodigious 
use of the bamboo as a disciplinary instrument. The chances, however, 
for such direct means of coercion to function with steadiness are ex- 
tremely unfavorable. According to experience, the relative optimum for 
the success and maintenance of a rigorous mechanization of the bureau- 
cratic apparatus is offered by an assured salary connected with the op- 
portunity of a career that is not dependent upon mere accident and 
arbitrariness. Taut discipline and control which at the same time have 
consideration for the official's sense of honor, and the development of 
prestige sentiments of the status group as well as the possibility of public 
criticism, also work in the same direction. With all this, the bureau- 
cratic apparatus functions more assuredly than does legal enslavement 
of the functionaries. A strong status sentiment among officials not only 
is compatible with the official's readiness to subordinate himself to his 
superior without any will of his own, but — as in the case with the of- 
ficer — status sentiments are the compensatory consequence of such 
subordination, serving to maintain the official's self-respect. The purely 
impersonal character of the office, with its separation of the private 
sphere from that of the official activities, facilitates the official's integra- 
tion into the. given functional conditions of the disciplined mechanism. 



D. SUMMARY 

Even though the full development of a money economy is thus not 
an indispensable precondition for bureaucratization, bureaucracy as a 
permanent structure is knit to the one presupposition of the availability 
of continuous revenues to maintain it. Where such income cannot be 
derived from private profits, as it is in the bureaucratic organization of 
modem enterprises, or from land rents, as in the manor, a stable system 
of taxation is the precondition for the permanent existence of bureau- 
cratic administration. For well-known general reasons only a fully 
developed money economy offers a secure basis for such a taxation system. 
Hence the degree of administrative bureaucratization has in urban com- 
munities with fully developed money economies not infrequently been 
relatively greater than in the contemporaneous and much larger terri- 
torial states. As soon, however, as these states have been able to develop 
orderly systems of taxation, bureaucracy has there developed far more 
comprehensively than in the city states where, whenever their size re- 
mained confined to moderate limits, the tendency for a plutocratic and 
collegial administration by notables has corresponded most adequately to 
the requirements. For the basis of bureaucratization has always been 



3 ] Economic Presuppositions of Bureaucracy 969 

a certain development of administrative tasks, both quantitative and 
qualitative. 



4. The Quantitative Development of Administrative 
Tasks 

The first such basis of bureaucratization has been the quantitative 
Extension of administrative tasks. In politics, the big state and the mass 
party are the classic field of bureaucratization. 



EXCURSUS ON THE DEGREE OF BUREAUCRATIZATION IN HISTORICAL 
EMPIRE FORMATIONS 

Our statement is not meant to imply that every historically known 
and genuine formation of big states has brought about a bureaucratic 
administration. For one, the secular survival of an existing great state 
or the homogeneity of a culture borne by it has not always been tied 
to a bureaucratic structure. Both of these linkages, however, occur 
to a great extent in the Chinese empire, to give an example. The nu- 
merous large African kingdoms, and similar formations, have had an 
ephemeral existence primarily because they have lacked an apparatus 
of officials. The Carolingian empire disintegrated when its administra- 
tive organization fell apart, which, however, was predominantly patri- 
monial rather than bureaucratic. On the other hand, the empire of the 
Caliphs and its predecessors on Asiatic soil have lasted for considerable 
periods of time, and their administrative Organization was essentially 
patrimonial and prebendal. The same is true of the [German medieval] 
Holy Roman Empire, in spite of the almost complete absence of 
bureaucracy. All these realms have represented a cultural unity of at 
least approximately the same strength as is usually created by bureau- 
cratic polities. By contrast, the ancient Roman Empire disintegrated 
internally in spite of increasing bureaucratization, or rather precisely 
during its introduction, because the mode of allocation of public bur- 
dens, which was associated with it, favored a natural economy. But it 
should be noted that from the point of view of their purely political 
unity and its degree of intensity, the cohesiveness of the first-named 
formations was essentially unstable and nominal, of the nature of a 
conglomerate, with a steadily diminishing capacity for political action. 
Their relatively great cultural unity flowed in part from ecclesiastic 
structures that were strongly unified and, in the Occidental Middle 



9 7 O BUREAUCRACY [ Cfe. XI 

Ages, increasingly bureaucratic in character; the cultural unity also 
resulted from the far-going homogeneity of their social structures, which 
in turn was the after-erfect and transformation of their former political 
unity. Both are phenomena of the traditional stereotyping of culture 
which favors survival of unstable equilibria. Both factors proved so 
strong a foundation that even grandiose expansionary attempts, such 
as the Crusades, could be undertaken in spite of the lack of political 
unity; they were, one might say, performed as "private undertakings." 
The failure of the Crusades and their often irrational political course, 
however, is associated with the absence of a unified state power to back 
them up. And there is no doubt that the nuclei of intensive, "modern" 
state formation in the Middle Ages developed concomitandy with 
bureaucratic structures, and that in the end the bureaucratically most 
advanced states shattered the conglomerates which rested essentially 
upon unstable equilibria. 

The disintegration of the ancient Roman Empire was partly condi- 
tioned by the very bureaucratization of its army and official apparatus. 
This bureaucratization could be realized only by putting into effect at 
the same time a method of distribution of public burdens which was 
bound to lead to an increase in the relative importance of the natural 
economy. Individual factors of this sort always" enter the picture. 
Furthermore, we cannot assume a direct relationship between bureau- 
cratization and the intensity of the state's external (expansionary) and 
internal (cultural) influence. Certainly a direct proportionality between 
the degree of bureaucratization and the state's expansionary force, can 
only be stated as the "normal," but not as the inevitable rule. For two of 
the most expansive political formations, the Roman empire and the 
British world empire, rested upon bureaucratic foundations only to the 
smallest extent during their most expansive periods. The Norman 
state in England introduced a taut organization on the basis of the feudal 
hierarchy. It is true that to a large extent it received its unity and its push 
through the bureaucratization of the royal exchequer which, in com- 
parison to other political structures of the feudal period, was extremely 
advanced. The fact that later on the English state did not participate in 
the Continental development towards bureaucratization, but remained 
an administration of notables, can be attributed — just like parallels in 
the republican administration of Rome — to the relative absence of a 
continental geography, as well as to some unique preconditions which at 
the present time are disappearing. The dispensability of the large stand- 
ing armies, which a continental state with equally expansive tendencies 
requires for its land frontiers, is among these special preconditions. In 
Rome, bureaucratization advanced with the transition from a coastal to 



4 1 Quantitative Changes of Administrative Tasks 9 7 i 

a continental empire. For the test, the strictly military character of the 
magistrates' powers— -a characteristic of the Roman polity unknown to 
any other people — made up for the lack of a bureaucratic apparatus with 
its technical efficiency, its precision and unity of administrative func- 
tions, especially outside the city limits- Tlte continuity of administration 
wat safeguarded by the unique position of the Senate. In Rome, as in 
Jangland, one presupposition for this dispensability of bureaucracy, which 
should not be forgotten, was that the state authorities increasingly 
"minimized" the scope of their functions at home, restricting them to 
what was absolutely demanded for direct "reasons of state." 

In the continental states, however, power at the beginning of the 
modern period as a rule accumulated in the hands of those princes who 
most relendessly took the course of administrative bureaucratization. It 
is obvious that technically the large modern state is absolutely dependent 
upon a bureaucratic basis. The larger the state, and the more it is a 
great power, the more unconditionally is this the case. 

The United States still bears the character of a polity which, at 
least in the technical sense, is not fully bureaucratized. But the greater 
the zones of friction with the outside and the more urgent the needs 
for administrative unity at home become, the more this character is 
inevitably and gradually giving way formally to the bureaucratic struc- 
ture. Moreover, the partly unbureaucratic form of the state structure of 
the United States is materially balanced by the more stricdy bureau- 
cratic structures of those formations which, in truth, dominate politically, 
namely, -the parties under the leadership of "professionals" or experts in 
organization and election tactics. The increasingly bureaucratic organic 
zation of all genuine mass parties offers the most striking example of the 
role of sheer quantity as a leverage for the bureaucratization of a social 
structure; in Germany, above all the Social Democratic party, and 
abroad both of the American parties are prime examples. 



5. Qualitative Changes of Administrative Tasks: The 
Impact of Cultural, Economic and Technological 
Developments 

Bureaucratization is stimulated more strongly, however, by intensive 
and qualitative expansion of the administrative tasks than by their exten- 
sive and quantitative increase. But the direction bureaucratization takes, 
and the reasons that occasion it, can vary widely. In Egypt, the oldest coun- 
try of bureaucratic state administration, it was the technical necessity of a 



. *3f 



9 7 * BUREAUCRACY [ Cft. XI 

public regulation of the water economy for the whole country and from 
the top which created the apparatus of scribes and officials; very early 
it found its second, realm of operation in the extraordinary, militarily or- 
ganized construction activities. In most cases, as mentioned before, the 
bureaucratic tendency has been promoted by needs arising from the 
creation of standing armies, determined by power politics, and from 
the related development of public finances. But in the modem state, the 
increasing demands for administration also rest on the increasing com- 
plexity of civilization. 

Great power expansions, especially overseas, have, of course, been 
managed by states ruled by notables (Rome, England, Venice). Yet , 
the "intensity" of the administration, that is, the assumption of as many 
tasks as possible by the state apparatus for continuous management and 
discharge in its own establishment was only slighdy developed in the 
great states ruled by notables, especially in Rome and England, 'by com- 
parison with the bureaucratic polities; this will become evident in the 
apprQpriate context. To be sure, the structure of state power has in- 
Huenced culture very strongly both in England and in Rome. But it has 
done so to a very small extent in the form of management and control 
by the state, This holds from justice to education. The growing demands 
on culture, in turn, are determined, though to a varying extent^ by the 
growing wealth of the most influential strata in the state. To this extent 
increasing bureaucratization is a function of the increasing possession of 
consumption goods, and of an increasingly sophisticated technique ©f 
fashioning external life — a technique which corresponds to the oppor- 
tunities provided by such wealth. This reacts upon the standard of living 
and makes for an increasing subjective indispensability of public, inter- 
local, and thus bureaucratic, provision for the most varied wants which 
previously were either unknown or were satisfied locally or by the private 
economy. 

Among purely political factors, the increasing demand of a society 
accustomed to absolute pacification for order and protection ("police") in 
all fields exerts an especially persevering influence in the direction of 
bureaucratization. A direct road leads from mere modifications of the 
blood feud, sacerdotally or by means of arbitration, to the present posi- 
tion of the policeman as the "representative of God on earth." The 
former means still placed the guarantees for the individual's rights and 
security squarely upon the members of his sib who were obligated to 
assist him with oath and vengeance. Other factors operating in the 
direction of bureaucratization are- the manifold tasks of social welfare 
policies which are either saddled upon the modern state by interest 
groups or which the state usurps for reasons of power or for ideological 



5 ] Qualitative Changes of Administrative Tasks 9 7 3 

motives. Of course, these tasks are to a large extent economically de- 
termined. 

Among essentially technical factors, the specifically modem means 
of communication enter the picture as pacemakers of bureaucratization. 
In part, public roads and water-ways, railroads, the telegraph, etc., can 
only be administered publicly; in part, such administration is technically 
expedient. In this respect, the contemporary means of communication 
frequently play a role similar to that of the canals of Mesopotamia and 
the regulation of the Nile in the, ancient Orient. A certain degree of 
development of the means of communication in turn is one of the most 
important prerequisites for the possibility of bureaucratic administration, 
though it alone is not decisive. Certainly in Egypt bureaucratic centraliza- 
tion could, against the backdrop of an almost purely "natural" econ- 
omy, never have reached the degree of perfection which it did without 
the natural route of the Nile. In order to promote bureaucratic cen- 
tralization in modem Persia, the telegraph officials were officially com- 
missioned with reporting to the Shah, over the heads of the local au- 
thorities, all occurrences in the provinces; in addition, everyone received 
the right to remonstrate direcdy by telegraph. The modem Occidental 
state can be administered the way it actually is only because the state 
controls the telegraph network and has the mails and railroads at its 
disposal. (These means of communication, in turn, are intimately con- 
nected with the development of an inter-local traffic of mass goods, 
which therefore is one of the causal factors in the formation of the 
modern state. As we have already seen, this does not hold uncondi- 
tionally for the past.) 



6. The Technical Superiority of Bureaucratic Organiza- 
tion ever Administration by Notables 

■The decisive reason for the advance of bureaucratic organization 
has always been its purely technical superiority over any other form of, 
organization. The fully developed bureaucratic apparatus compares with 
other organizations exactly as does the machine with the non-mechanical 
modes of production. Precision, speed, unambiguity, knowledge of the 
files, continuity, discretion, unity, strict subordination, reduction of fric- 
tion and of material and personal costs^— these are raised to the optimum 
point in the strictly bureaucratic administration, and especially in its'.. 
monocratic form. As compared with all collegiate, honorific, and avoca- 
tional forms of administration, trained bureaucracy is superior on all 



9 7 4 BURBAUCRACY [ Ck. XI 

these points. And as far as complicated tasks are concerned, paid bureau- 
cratic work is not only more precise but, in the last analysis, it is often 
cheaper than even formally unremunerated honorific service. 

Honorific arrangements make administrative work a subsidiary ac- 
tivity: an ^vocation and, for this reason alone, honorific service normally 
functions more slowly. Being less bound to schemata and more formless, 
it is less precise and less unified than bureaucratic administration, also 
because it is less dependent upon superiors. Because th« establishment 
and exploitation of the apparatus of subordinate officials and clerical 
services are almost unavoidably less economical, honorific service is less 
continuous than bureaucratic and frequently quite expensive. This is 
especially the case if one thinks not only of the money costs to the public 
treasury-'-costs which bureaucratic administration, in comparison with 
administration by notables, usuilly increases — but also of the frequent 
economic losses of the governed caused by delays and lack of precision. 
Permanent administration by notables is normally feasible only where 
official business can be satisfactorily transacted as an avocation. With 
the qualitative increase of tasks the administration has to face, admini- 
stration by notables reaches its limits — today even in England. Work 
organized by collegiate bodies, on the other hand, causes friction and 
delay and requires compromises between colliding interests and views. 
The administration, therefore, runs less precisely and is more independ- 
ent of superiors; hence, it is less unified and slower. All advances of 
the Prussian administrative organization, for example, have been and 
will in the future be advances of the bureaucratic, and especially of 
the monocratic, principle. 

Today, it is primarily the capitalist market economy which demands 
that the official business of public administration be discharged pre- 
cisely, unambiguously, continuously, and with as much speed as possi- 
ble. Normally, the very large modern capitalist enterprises are them- 
selves unequalled models of strict bureaucratic organization. Business 
management throughout rests on increasing precision, steadiness, and, 
above all; speed of operations. This, in turn, is determined by the 
peculiar nature of the modem means of communication, including, 
among other things, the news service of the press. The extraordinary 
increase in the speed by which public announcements, as well as eco- 
nomic and political facts, are transmitted exerts a steady and sharp 
pressure in the direction of speeding up the tempo of administrative 
reaction towards various situations. The optimum of such reaction time 
is normally attained only by a stricdy bureaucratic organization. (The 
fact that the bureaucratic apparatus also can, and indeed does, create 



6 ] Technical Superiority of Bureaucracy 97 5 

certain definite impediments for the discharge of business in a manner 
best adapted to the individuality of each case does not belong into the 
present context.) 

Bureaucratization offers above all the optimum possibility for carry- 
ing through the principle of specializing administrative functions ac- 
cording to purely objective considerations. Individual performances are 
allocated to functionaries who have specialized training and who,.by 
constant practice increase their expertise. "Objective" discharge of busi- 
ness primarily means a discharge of business according to calculable 
rules and "without regard for persons." 

"Without regard for persons," however, is also the watchword of the 
market and, in general, of all pursuits of naked economic interests. Con- 
sistent bureaucratic domination means the leveling of "status honor." 
Hence, if the principle of the free market is not at the same time re- 
stricted, it means the universal domination of the "class situation." That 
this consequence of bureaucratic domination has not set in everywhere 
proportional to the extent of bureaucratization is due to the differences 
between possible principles by which polities may supply their re- 
quirements. However, the second element mentioned, calculable rules, 
is the most important one for modem bureaucracy. The peculiarity of 
modem culture, and specifically of its technical and economic basis, de- 
mands this very "calculability" of results. When fully developed, bu- 
reaucracy also stands, in a specific sense, under the principle of sine 
ira ac studio. Bureaucracy develops the more perfecdy, the more it is 
"dehumanized," the .more, completely it succeeds in eliminating from 
official business love, hatred, and all purely personal, irrational, and emo- 
tional elements which escape calculation. This is appraised as its special 
virtue by capitalism. 

The more complicated and specialized modern culture becomes, the 
more its external supporting apparatus demands the personally detached 
and stricdy objective expert, in lieu of the lord of older social structures- 
who was moved by personal sympathy and favor, by grace and gratitude. 
Bureaucracy offers the attitudes demanded by the external apparatus of 
modern culture in the most favorable combination. In particular, only 
bureaucracy has established the foundation for the administration of a 
rational law conceptually systematized on the basis of "statutes," such as 
the later Roman Empire first created with a high degree of technical 
perfection. During the Middle Ages, the reception of this [Roman] 
law coincided with the bureaucratization of legal administration: The 
advance of the rationally trained expert displaced the old trial procedure 
which was bound to tradition or to irrational presuppositions. 



9 7 6 BUREAUCRACY [ Ch. XI 

A. EXCURSUS ON KADI JUSTICE, COMMON LAW AND ROMAN LAW 

The "rational" interpretation of law on the basis of strictly formal 
concepts can be juxtaposed to a kind of adjudication that is primarily 
bound to hallowed traditions. Individual cases which cannot be un- 
ambiguously decided by tradition it either setdes by concrete revela- 
tion (oracle, prophetic dicta, Or ordeal — that is, by charismatic justice) 
or — and only the following two cases interest us here — by a) informal 
judgments rendered in terms of concrete ethical or other practical valua- 
tions ("Kadi-justice," as R. Schmidt* has fittingly called it); or, b) 
formal judgments rendered, not by subsumption under rational concepts, 
but by drawing on "analogies" and by depending upon and interpreting 
concrete "precedents." This is "empirical justice." 

Kadi-justice knows no rational "rules of decision" (Urteilsgrunde') 
whatever, nor does empirical justice of the pure type give any reasons which 
in our sense could he called rational. The concrete valuational character of 
Kadi-justice can advance to a prophetic break with all tradition; Empirical 
justice, on the other hand, can be sublimated and rationalized into a 
"technique." Since non-bureaucratic forms of domination display a 
peculiar co-existence of strict traditionalism and of arbitrariness and 
lordly discretion, combinations and transitional forms between these 
two principles are very frequent. Even today in England, as Mendels- 
sohn has demonstrated, 8 a broad substratum of justice is actually Kadi- 
justice to an extent that is hardly conceivable on the Continent. The 
justice of German juries, which excludes a statement of the reasons for 
their verdict, often functions in practice in the same way. In general, 
one has to beware of believing that "democratic" principles of justice are 
identical with "rational" adjudication (in the sense of formal rationality). 
Indeed, the contrary holds. The English and American adjudication of 
the highest courts is still to a great extent empirical, and specifically: 
an adjudication by precedents. In England, the reason for the failure 
of all efforts at a rational codification of law, as well as the failure to 
"receive" the Roman law [at the end of the Middle Ages, when this 
occurred elsewhere in Europe], was due to the successful resistance 
against such rationalization offered by the great and centrally organized 
lawyers' guilds, a monopolistic stratum of notables from whose midst the 
judges of the high courts of the realm were recruited. They retained 
in their hands juristic training as an apprenticeship transmitting an 
empirical and highly developed technology, and they successfully fought 
all moves toward rational law emanating especially from the ecclesiastical 
courts and, for a time, also from the universities, which threatened their so- 
cial and material position. 

The fight of the common law advocates against the Tloman and 



UP" 



6 3 Technical Superiority of Bureaucracy 9 7 7 

ecclesiastical law, and against the power of the church in general, was 
to a considerable degree economically conditioned, namely by the 
lawyer's interest in fees; this is distinctly evidenced by the way in which 
the kings intervened in this struggle. But the power position of the 
lawyers, who emerged victoriously from this struggle, was conditioned 
by political centralization, In Germany, primarily for political reasons, 
a socially powerful status group of notables was lacking. There was no 
status group which, like the English lawyers, could have been the 
carrier of the administration of a national law, which could have raised 
national law to the level of a technology based on apprenticeship, and 
which could have offered resistance to the intrusion of the technically 
superior training of the Roman-taw jurist.. It is noi that Roman law was 
in its substantive provisions better adjusted to the needs of emerging 
capitalism; this did not decide its victory on the Continent. In fact, all 
legal institutions specific to modern capitalism are alien to Roman law 
and are medieval in origin. What was decisive was the rational form 
of Roman law and, above all, the technical necessity to place the trial 
procedure in the hands of rationally trained experts, which meant men 
trained in the universities in Roman law. This necessity arose from the 
increasing complexity of legal cases and the demands of an increasingly 
rationalized economy for a rational procedure of evidence rather than 
the ascertainment of the truth by concrete revelation or sacerdotal 
guarantee which everywhere was the primeval means of proof. Of 
course, this situation was strongly influenced by structural changes in 
the economy. But this factor was efficacious everywhere, including Eng- 
land where the royal power introduced the rational procedure of evi- 
dence primarily for the sake of the merchants. The predominant reasons 
for the differences in the development of substantive law in England 
and Germany do not rest upon this economic factor. As is already ob- 
vious, these differences have sprung from the autonomous development 
of the respective structures of domination: In England, centralized Jus- 
tice and rule by notables; in Germany, absence of political centraliza- 
tion in spite of bureaucratization. England, which in modern times 
was the first and most highly developed capitalist country, thereby re- 
tained a less rational and less bureaucratic judicature. Capitalism in 
England, however, ^ould quite easily come to terms with this because 
the nature of the court constitution and of the trial procedure up to the 
modern period amounted in effect to a far-going denial of justice to the 
economically weak groups. This fact, in association with the high time 
and money expenses of the system of real estate transfers — itself a func- 
• tion of the economic interests of the lawyea; claw — exerted a profound 
influence upon the agrarian structure of England in favor of the ac- 
cumulation and immobilization of landed wealth. 



9 7 8 BUREAUCRACY [ Ck. XI 

During the time of the republic, Roman law itself presented a 
unique mixture of rational and empirical elements, and even of elements 
of Kadt-justice. The appointment of the jury courts as such and the 
praetorian actiones in factum [conceptae], 4 which at first undoubtedly 
were formulated "from case to case," contained elements of Kadi-justice. 
The fearly republican] soealled rt ca»telae-jurisprudence"* and all that 
developed from it, including even a part of the practice of resfonsae of 
the classical jurists [inthe imperial period],* bore an "empirical" char- 
acter. The decisive turn of legal thought toward a rational approach was 
first prepared by the technical nature of the trial instructions based on 
the formulae of the praetorian edict, which were geared to legal con- 
cepts. (Today, under the dominance of the principle of fact pleading, 
the presentation of the facts is decisive, no matter from what legal point 
of view they may make the complaint seem justified. The compulsion 
unambiguously and formally to work out the scope of concepts is now 
lacking; but such a compulsion was produced by the technical culture of 
Roman law at its very height.) Technical factors of trial procedure thus 
played their part in" the development of rational law, factors which re- 
sulted only indirecdy from the structure of the state. But the rationaliza- 
tion of Roman law into a closed system of concepts to be scientifically 
handled was brought to perfection only during the period when the 
polity itself underwent bureaucratization. This rational and systematic 
quality sets off Roman law sharply from all law produced by the Orient 
and by Hellenic culture. 

- The rabbinic responses of the, Talmud are a typical example of. 
empirical justice that is not rational but "rationalist," and at the same 
time strictly fettered by tradition. Pure Kadi-justice is represented in 
every prophetic dictum that follows the pattern: "It is written . . . but I 
say unto you." The more strongly the religious nature of the Kadi's Cor 
some similar judge's) position is emphasized, the more arbitrary — that 
is, the less rule-bound — will the judgment of the individual case be 
within that sphere where it is not fettered by sacred tradition. For a 
generation after the occupation of Tunisia by the French, for instance, 
a very tangible handicap for capitalism remained in that the ecclesiastic 
court (the Chora') decided over land holdings "at discretion," as the 
Europeans put it. We shall deal in another context with the sociological 
foundation of these older types of justice in the structure of domination. 

B. BUREAUCRATIC OBJECTIVITY, RAISON DETAT AND POPULAR WILL 

It is perfectly true that "matter-of-factness" and "expertness" are not 
necessarily identical with the rule of general and abstract norms. Indeed, 



6 ] Technical Superiority of Bureaucracy 9 7 9 

this does not even hold in the case of the modern administration of 
justice. The idea of a "law without gaps" is, of course, under vigorous 
attack. The conception of the modern judge as an automaton into which 
legal documents and fees are stuffed at the top in order that it may spill 
forth the verdict at the bottom along with the reasons, read mechanically 
from codified paragraphs — this conception is angrily rejected, perhaps 
because a certain approximation to this type would precisely be implied 
by a consistent bureaucratization of justice. Thus even in the field of 
law-finding there are areas in which the bureaucratic judge is directly 
held to "individualizing" procedures by the legislator. 

For the field of administrative activity proper, that is, for all state 
activities that fall outside the field of law creation and court procedure, 
one has become accustomed to claims for the freedom and the para- 
mountcy of individual circumstances. General norms are held to play 
primarily a negative role, as barriers to the official's positive and "crea- 
tive" activity which should never be regulated. The bearing of this 
thesis may be disregarded here. Decisive is that this "freely" creative 
administration (and possibly judicature) would not constitute a realm 
of free, arbitrary action and discretion, of ■personally motivated favor 
and valuation, such as we shall find to be the case among pre- 
bureaucratic forms. The rule and the rational pursuit of "objective" * 
purposes, as well as devotion to these, would always constitute the 
norm of conduct. Precisely those views which most strongly glorify the 
"creative" discretion of the official accept, as the ultimate and highest 
lodestar for his behavior in public administration, the specifically 
modern and stricdy "objective" idea of raiscm d'etat. Of course, the sure 
instincts of the bureaucracy for the conditions of maintaining its own 
power in the home state (and through it, in opposition to other states) 
are inseparably fused with this canonization of the abstract and "objec- 
tive" idea of "reasons of state." Most of the time, only the power in- 
terests of the bureaucracy give a concretely exploitable content to this by 
no means unambiguous ideal; in dubious 'cases, it is always these in- 
terests which tip the balance. We cannot discuss this further here. The 
only decisive point for us is that ; in principle a system of rationally 
debatable "reasons" stands behind every act of bureaucratic administra- 
tion, namely, either subsumption under norms, or a weighing of ends* 
and means. 

In this context, too, the attitude of all "democratjc" currents, in the 
sense of currents that would minimize "domination," is necessarily 
ambiguous. "Equality before the law" and the demand for legal guaran- 
tees against arbitrariness demand a formal and rational "objectivity" of 
administration, as opposed to the personal discretion Bowing from the 



980 BUREAUCRACY [ Cfe. XI 

"grace" of the old patrimonial domination. If, however, an "ethos" — 
not to speak of other impulses— takes hold of the masses on some indi- 
vidual question, its postulates of substantive justice, oriented toward 
some concrete instance and person, will unavoidably collide with the 
formalism and the rule-bound and cool "matterof-factness" of bureau- 
cratic administration. Emotions must in that case reject what reason 
demands. 

The propertyless masses especially are not served by the formal 
"equality before the law" and the "calculable" adjudication and ad- 
ministration demanded by bourgeois interests. Naturally, in their eyes 
justice and administration should serve to equalize their economic and - 
social life-opportunities in the face of the propertied classes- justice and 
administration can fulfill this function only if they assume a character 
that is informal because "ethical" with respect to substantive content 
(.Kadi-justice). Not only any sort of "popular justice" — which usually 
does not ask for reasons and norms — but also any intensive influence on 
the administration by so-aJiid "public opinion" — that is, concerted 
action born of irrational "sentiments" and usually staged or directed by 
party bosses or the press — thwarts the rational course of justice just as 
strongly, and under certain circumstances far more so, as the "star 
chamber" proceedings (Kabinettsjustiz) of absolute rulers used to be 
able to do. 



7 . The Concentration of the Means of Administration 

The bureaucratic structure goes hand in hand with the concentra- 
tion of the material means of management in the hands of the master. 
This concentration occurs, for instance, in a well-known and typical 
fashion in the development of big capitalist enterprises, which find their 
essential characteristics in this process. A corresponding process occurs 
in public organizations. 



A. THE BUREAUCRATIZATION OF THE ARMY BY THE STATE 
AND BY PRIVATE CAPITALISM 

The bureaucratically led army of the Pharaohs, the -army of the 
later period of the Roman republic and of the Principate, and, above all, 
the army of the modem military state are characterized by the fact that 
their equipment and provisions are supplied from the magazines of the 
lord. This is in contrast to the levies of agricultural tribes, the armed 



7 ] Concentration of the Means of Administration 9 8 1 

citizenry of ancient cities, the militias of early medieval cities, and all 
feudal armies; for these, the self-equipment and the self-provisioning of 
those obliged to fight was normal. War in out time is a war of machines, 
and this makes centralized provisioning technically necessary, just as 
the dominance of the machine in industry promotes the concentration 
of the means of production and management. In the main, however, 
the bureaucratic armies of the past, equipped and provisioned by the 
lord, came into being when social and economic development had 
diminished, absolutely or relatively, the stratum of citizens who were 
economically able to equip themselves, so that their number was t no 
longer sufficient for putting the required armies in the field. A relative 
decline of these strata sufficed: relative, that is, with respect to the scope 
of the power claim of the polity. Only the bureaucratic army structure 
allows for the development of the professional standing armies which 
are necessary for the constant pacification of large territories as well as 
for wariare against distant enemies, especially enemies overseas. Further, 
military discipline and technical military training can normally be fully 
' developed, at least to its modem high level, only in the bureaucratic army. 
Historically, the bureaucratization of the army has everywhere oc- 
curred along with the shifting of army service from the shoulders of the 
propertied to those of the propertyless. Until this transfer occurs, mili- 
tary service is an honorific privilege of propertied men. Such a transfer 
was made to the native-born unpropertied, for instance, in the armies of 
the Roman generals of the late Republic and of the Empire, as well as 
in modern armies up to the nineteenth century. The burden of service 
has also been transferred to impecunious strangers, as in the mercenary 
armies of all ages.iThis process typically goes hand in hand with the 
general increase in material and intellectual culture. In addition, with 
increasing population density, and hence growing intensity and strain 
of economic work, the acquisitive strata become increasingly unavailable 
for purposes of war. Leaving aside periods of strong ideological fervor, 
the propertied strata with sophisticated and especially with urban culture 
as a rule are little fitted and also litde inclined to do the coarse war 
work of the common soldier. Other circumstances being equal, the 
propertied strata of the countryside tend to be better qualified and 
more strongly inclined to become professional officers. This difference 
between the urban and the rural propertied is equalized only where the 
increasing possibility of mechanized warfare requires the leaders to 
qualify as "technicians." 

The bureaucratization of organized warfare may be carried through 
in the form of private capitalist enterprises, just like any other business. 
Indeed, the procurement of armies and their administratiqn by private 



982 BUREAUCRACY [ Ck. XI 

capitalists has been the rule in mercenary armies, especially those of the 
Occident up to the turn of the eighteenth century. In Brandenburg 
during the Thirty Years' War, the soldier was still the predominant 
owner of the material implements of his business. He owned his 
weapons, horses, and clothing, although the state, in the role, as it were, 
of the merchant of the putting-out system, did already purvey them. 
Later on, in the Prussian standing army, the chief of the company 
owned the material means of warfare, and only since the peace of Tilsit 
[in 1807] has the concentration of the means of warfare in the hands 
of the state definitely come about. Only with this concentration was the 
introduction of uniforms generally carried through. Previously, the 
introduction of uniforms had been left largely to the discretion of the 
regimental chief, with the exception of certain units upon whom the 
king had "bestowed" uniforms (first, in 1620, on the royal Garde Au 
Corps, then repeatedly under Frederick II). 

Such terms as "regiment" and "battalion" usually had quite different 
meanings in the eighteenth century as against today. Only the "bat- 
talion" was a tactical battle unit (as today both are), while the 
"regiment" was an economic management unit created by the entre- 
preneurial position of the colonel. Semiofficial sea-war ventures (like 
the Genoese maone) and army procurement belong to private capital- 
ism's first giant enterprises with a largely bureaucratic character. Their 
"nationalization" in this respect has its modem parallel in the nationali- 
zation of the railroads, which have been controlled by the state from 
their beginnings. 



B. THE CONCENTRATION OF RESOURCES IN OTHER SPHERES, 

INCLUDING THE UNIVERSITY 

In this same way as with army organizations, the bureaucratization 
of administration in other spheres goes hand in hand with the con- 
centration of resources. The ancient administrations through satraps and 
viceroy^., just like those through office farmers, office buyers and, most 
of all, through feudal vassals, all decentralize the means of operation: 
Local requirements, including the cost of the army and of the lower 
officialdom, are as a rule paid first from the local revenues, and only the 
surplus reaches the central treasury. The enfeoffed official meets ex- 
penses entirely out of his own pocket. The bureaucratic state, by con- 
trast, puts its entire administrative expense on the budget and provides 
the lower authorities with the current means of expenditure, the use of 
which the state regulates and controls. This has the same meaning for 



Mil 



7 ] _ Concentration of the Means of Administration 983 

the economy of public administration as For the large centralized capi- 
.talist enterprise. 

In the field of scientific research and instruction, the bureaucratiza- 
tion of the inevitable research institutes of the universities is also a 
function of the increasing demand for material means of operation. 
Liebig's laboratory at Giessen University was the first example of big 
enterprise in this field. Through the concentration of such means in 
the hands of the privileged head of the institute the mass of researchers 
and instructors are separated from their "means of production," in the 
same way as the workers are separated from theirs by the capitalist 
enterprises. 



8 . The Leveling of Social Differences 

In spite of its indubitable technical superiority, bureaucracy has 
everywhere been a relatively late development. A number of obstacles 
have contributed to this, and only under certain social and political 
conditions have they definitely receded into the background. 



A. ADMINISTRATIVE DEMOCRATIZATION 

Bureaucratic organization has usually come into power on the basis 
of a leveling of economic and social differences. This leveling has been 
at least relative, and has concerned the significance of social and eco- 
nomic differences for the assumption of administrative functions. 

Bureaucracy inevitably accompanies modern mass democracy, in con- 
trast to the democratic self-government of small homogeneous units. 
This results from its characteristic principle: the abstract regularity of 
the exercise of authority, which is a result of the demand for "equality 
before the law" in the personal and functional sense — hence, of the 
horror of "privilege," and the principled rejection of doing business 
"from case to case." Such regularity also follows from the social pre- 
conditions of its origin. Any non-bjreai-'cr^ic administration of a large 
social structure rests in some way upon the fact that existing social, 
material, or honorific preferences and ranks are connected with ad- 
ministrative functions and duties. This usually means that an economic 
or a social exploitation of position, which every sort of administrative 
activity provides to its bearers, is the compensation for the assumption of 
administrative functions. 

Bureaucratization and democratization within the administration of 



984 BUREAUCRACY [ Ck. XI 

the state therefore signify an increase of the cash expenditures of the 
public treasury, in spite of the fact that bureaucratic administration is 
usually more "economical" in character than other forms. Until recent 
times — at least from the point of view of the treasury — the cheapest way 
of satisfying the need for administration was to leave almost the entire 
local administration and lower judicature to the landlords of Eastern 
Prussia. The same is true of the administration by justices of the peace 
in England. Mass democracy which makes a clean sweep of the feudal, 
patrimonial, and — at least in intent — the plutocratic privileges in ad- 
ministration unavoidably has to put paid professional labor in place of 
the historically inherited "avocational" administration by notables. 



■£. MASK PARTIES AND THE BUREAUCRATIC CONSEQUENCES OF 
DEM OCR AT1Z ATI ON 

This applies not only to the state. For it is no accident that in their 
own organizations the democratic mass parties have completely binken 
with traditional rule by notables based upon personal relationships and 
personal esteem. Such personal structures still persist among many old 
conservative as well as old liberal parties, but democratic mass parties 
are bureaucratically organized under the leadership oF party officials, 
professional party and trade union secretaries, etc. In Germany, for 
instance, this has happened in the Social Democratic party and in the 
agrarian mass-movement; in England earliest in the caucus democracy 
of Gladstone and Chamberlain which spread from Birmingham in the 
1870's. In the United States, both parties since Jackson's administration 
have developed bureaucratically. In France, however, attempts to or- 
ganize disciplined political parties on the basis of an election system that 
would compel bureaucratic organization have repeatedly failed. The 
resistance of local circles of notables against the otherwise unavoidable 
bureaucratization of the parties, which would encompass the entire 
country and break their influence, could not be overcome. Every ad- 
vance of simple election techniques based on numbers alone as, for 
instance, the system of proportional representation, means a strict and 
inter-local bureaucratic organization of the parties and therewith an in- 
creasing domination of party bureaucracy and discipline, as well as the 
elimination of the local circles of notables — at least this holds for large 
states. 

The progress of bureaucratization within the state administration 
itself is a phenomenon paralleling the development of democracy, as is 
quite obvious in France, North America, and now in England. Of 
course, one must always remember that the term "democratization" can 



8 ] The Levelling of Social Differences 985 

be misleading. The demos itself, in the sense of a shapeless mass, never 
"governs" larger associations, but rather is governed. What changes is 
only the way in which the executive leaders are selected and the 
measure of influence which the demos, or better, which social circles 
from its midst are able to exert. upon the content and the direction of 
administrative activities by means of "public opinion." "Democratiza- 
tion," in the sense here intended, does not necessarily mean an increas- 
ingly active share of the subjects in government. This may be a result of 
democratization, but it is not necessarily the case. 

We must expressly recall at this point that the political concept of 
democracy, deduced from the "equal rights" of the governed, includes 
these further postulates: CO prevention of the development of a closed 
status group of officials in the interest of a universal accessibility of 
office, and (2) minimization of the authority of officialdom in the in- 
terest of expanding the sphere of influence of "public opinion" as^far as 
practicable. Hence, wherever possible, political democracy strives to 
shorten the term of office through election and recall, and to be relieved 
from a limitation to candidates with special expert qualifications. 
Thereby democracy inevitably comes into conflict with the bureaucratic 
tendencies which have been produced by its very fight against the 
notables- The loose term "democratization" cannot be used here, in so 
far as it is understood to mean the minimization of the civil servants' 
power in favor of the greatest possible "direct" rule of the demos, which 
in, practice means the respective party leaders of the demos. The de- 
risive aspect here-^-indeed it is rather exclusively so — is the leveling of 
the governed in face of the governing and bureaucratically articulated 
group, which in its rum may occupy a quire autocratic position, both in 
fact and in form. 



C. EXCURSUS: HISTORICAL EXAMPLES OF PASSIVE DEMOCRATIZATION 

In Russia, the destruction of the position of the old seigneurial 
nobility through the regulation of the mestnichestvo Crank order) system 
and the consequent permeation of the old nobility by an office nobility 
[under Peter the Great] were characteristic transitional phenomena in 
the development of bureaucracy. In China, the estimation of rank and 
the qualification for office according to the number of examinations 
passed' have similar significance, although with an — at least in theory — 
even more pronounced rigour. In France the Revolution and, more de- 
cisively, Bonapartism have made the bureaucracy all-powerful. In the 
Catholic church, first the feudal and then all independent local inter- 
mediary powers were eliminated. This was begun by Gregory VII and 



986 BUREAUCRACY [ Ck. XI 

continued through the Council of Trent and the Vatican Council, and 
it was completed by the edicts of Pius X. The transformation of these 
local powers into pure functionaries of the central authority was con- 
nected with the constant increase in the factual significance of the 
formally quite dependent Kaplane [auxiliary clergymen supervising lay 
organizations], a process which above all was based on the political party 
organization of Catholicism. Hence this process meant an advance of 
bureaucracy and at the same time of "passive" democratization, as it 
were, that is, the leveling of the governed. In the same way, the substitu- 
tion of the bureaucratic army for the self-equipped army of notables is 
everywhere a process of "passive" democratization, in the sense in which 
this applies to every establishment of an absolute military monarchy in 
the place of a feudal state or of a republic of notables. The same holds, 
in- principle, even for the development of the state in Egypt in spite of 
all the peculiarities involved. Under the Roman Principate the bureau- 
cratization of the provincial administration in the field of tax collection, 
for instance, went hand in hand with the elimination of the plutocracy 
of a capitalist class, which, under the Republic, had been all-powerful; 
thus, ancient capitalism itself came to an end. 



D. ECONOMIC AND POLITICAL MOTIVES BEHIND PASSIVE 
DEMOCRATIZATION 

It is obvious that almost always economic conditions of some sort 
play their part in such "democratizing" developments. Very frequently 
we find at the base of the development an economically determined 
origin of new classes, whether plutocratic, petty-bourgeois, or proletarian 
in character. Such classes may call on the aid of, or they may call to 
life or recall to life, a political power of legitimate or of caesarist stamp 
in order to attain economic or social advantages through its political 
assistance. On the other hand, there are equally possible — and histori- 
cally documented — cases in which the initiative came "from on high" 
and was of a purely political nature, drawing advantages from political 
constellations, especially in foreign affairs. Here such leadership ex- 
ploited economic and social antagonisms as well as class interests merely 
as a means for its own purposes, throwing the antagonistic classes out of 
their almost always unstable equilibrium and calling their latent interest 
conflicts into batde. It seems hardly possible to give a general statement 
of this. 

The extent and direction of the course along which economic influ- 
ences have moved, as well as the manner in which political power rela- 
tions exert influence, vary widely. In Hellenic Antiquity, the transition 



■* 



8 ] The Levelling of Social Differences 987 

to disciplined hoplite combat formations, and later in Athens the increas- 
ing importance of the navy, laid the foundation for the conquest of 
political power by the strata on whose shoulders the military burden 
rested at each given time. In Rome, however, the same development 
shook the rule of the office nobility only seemingly and temporarily. 
The modern army, finally, although it has everywhere been a means of 
breaking the power of the notables, has in itself in no way served as a 
lever of active, but rather remained an instrument of merely passive 
democratization. It should be noted, however, that a contributing factor 
in these contrasts has been the fact that the modem army rests upon 
bureaucratic procurement, whereas the ancient citizen army rested eco- 
nomically upon self-equipment. 

The advance of the bureaucratic structure rests upon "technical" 
superiority. In consequence — as always in the area of "techniques" — 
we find that the advance proceeded most slowly wherever older struc- 
tural forms were in their own way technically highly developed and 
functionally particularly well adapted to the requirements at hand. This 
was the case, for instance, in the administration of notables in England, 
and hence England was the slowest of all countries to succumb to 
bureaucratization or, indeed, is still only partly in the process of doing 
so. This is the same general phenomenon as when areas which have 
highly developed gas illumination works or steam railroads, with large 
fixed capital, offer stronger obstacles to electrification than completely 
new areas which are opened up for electrification. 



9. The Objective and Subjective Bases of Bureaucratic 
Perpetuity 

Once fully established, bureaucracy is among those social structures 
which are the hardest to destroy. Bureaucracy is the means of transform- 
ing social action into rationally organized action. Therefore, as an instru- 
ment of rationally organizing authority relations, bureaucracy was and 
is a power instrument of the first order for one who controls the bureau- 
cratic apparatus. Under otherwise equal conditions, rationally organized 
and directed action (Gesellschaftshandeln) is superior to every kind of 
collective behavior (Massenhandeln) and also social action (Getwem- 
schaftshancteln') opposing it. Where administration has been completely 
bureaucratized, the resulting system of domination is practically in- 
destructible. * 

The individual bureaucrat cannot squirm out of the apparatus into 



988 BUREAUCRACY [ Ctt. XI 

which he has been harnessed. In contrast to the "notable" performing 
administrative tasks as a honorific duty or as a subsidiary occupation 
(avocation), the professional bureaucrat is chained to his activity in his 
■entire economic and ideological existence. In the great majority of cases 
he is only a small cog in a ceaselessly moving mechanism which pre- 
scribes to him an essentially fixed route of march. The official is en- 
trusted with specialized tasks, and normally the mechanism cannot be 
put into motion or arrested by him, but only from the very top. The 
individual bureaucrat is, above all, forged to the common interest of all 
die functionaries in the perpetuation of the apparatus and the per- 
sistence of its rationally, organized uomindrion. 

The ruled, for their part, cannot dispense with or replace the 
bureaucratic apparatus once it exists, for it rests upon expert training, 
a functional specialization of work, and an attitude set on habitual 
virtuosity in the mastery of single yet methM'-aily integrated functions. 
If the apparatus stops working, or if its work is interrupted by force, 
chaos results, which it is difficult to master by improvised replacements 
from among the governed. This holds for public administration as well 
as for private economic management. Increasingly the material fate of 
the masses depends upon the continuous and correct functioning of 
the ever more bureaucratic organizations of private capitalism, and the 
idea of eliminating them becomes more and more Utopian. 

Increasingly, all order in public and private organizations is depend- 
ent on the system of files and the discipline of officialdom, that means, 
its habit of painstaking obedience within its wonted sphere of action. 
The latter is the more decisive element, however important in practice 
the files are. The naive idea of Bakuninism of destroying the basis of 
"acquired rights" together with "domisttiari H by destroying the public 
documents overlooks that the settled Orientation of man for observing 
the accustomed rules and regulations wtf Rtrvivc independendy of Ae 
documents. Every reorganization of defined or scattered army units, as 
well as every restoration of an administrative order destroyed by revolts, 
panics, or other catastrophes, is effected by an appeal to this conditioned 
orientation, bred both in the officials and in the subjects, of obedient 
adjustment to such [social and political] orders. If the appeal is success- 
ful it brings, as it were, the disturbed mechanism to "snap into gear" 
again. 

The objective indispensability of the once-existing apparatus, in con- 
nection with its peculiarly "impersonal" character, means that the 
mechanism — in contrast to the feudal order based upon personal loyalty 
— is easily made to work for anybody who knows how to gain control 
over it. A rationally ordered officialdom continues to function smoothly 



9 ] Bases of Bureaucratic Perpetuity 989 

after the enemy has occupied the territory; he merely needs to change 
the top officials. It continues to operate because it is to the vital inter- 
est of everyone concerned, including above all the enemy. After Bis- 
marck had, during the long course of his years in power, brought his 
ministerial colleagues into unconditional bureaucratic dependence by 
eliminating all independent statesmen, he saw to his surprise that upon 
his resignation they continued to administer their offices unconcernedly 
and undismayedly, as if it had not been the ingenious lord and very 
creator of these tools who had left, but merely some individual figure in 
the bureaucratic machine which had been exchanged for some other 
figure. In spite of all the changes of masters in France since the time of 
the First Empire, the power apparatus remained essentially the same. 
Such an apparatus makes "revolution," in the sense of the forceful 
creation of entirely new formations of authority, more and more im- 
possible — technically, because of its control over the modern means of 
communication (telegraph eft;.), and also because of its increasingly 
, rationalized inner structure. The place of "revolutions" is under this 
process taken by coups d'etat, as again France demonstrates in the 
classical manner sihce all successful transformations there have been of 
this nature. 



jo. The Indeterminate Economic Con'sequences of 
Bureaucratization 

It is clear that the bureaucratic organization of a- social structure, 
and especially of a political one, can and regularly does have far- 
reaching economic consequences. But what sort of consequences? Of 
course, in any individual case it depends upon the distribution of eco- 
nomic and social power, and especially upon the sphere that is occupied 
by (he emerging bureaucratic mechanism. The consequences of bureauc- 
racy depend therefore upon the direction which the powers using the 
apparatus give to it. Very frequently a crypto-plutocratic distribution of 
power has been the result. 

In England, but especially in the United States, party donors regu- 
larly stand behind the bureaucratic party organizations. They have 
financed these parties and have been able to influence them to 2 large 
extent. The breweries in England, and in Germany the so-called "heavy 
industry" and the Hansa League 7 with their election funds are well 
enough known in this respect. In political and especially in state forma- 
tions, too, bureaucratization and social leveling with the associated 



9 9° 6URBAUCRACY [ Ck. XI 

breaking up of the opposing local and feudal privileges have in modem 
times frequently benefitted the interests of capitalism or have been car- 
ried out in direct alliance with capitalist interests; witness the great 
historical alliance of the absolute princes with capitalist interests. In 
general, a legal leveling and destruction of firmly established local struc- 
tures ruled by notables has usually benefitted the scope of capitalist 
activity. But, on the other hand, there is also an effect of bureaucradza- 
tion that meets the petty-bourgeois interest in a safe traditional "living," 
or even a state-socialist effect that strangulates opportunities for private 
profit. This has undoubtedly been active in several cases of historically 
far-reaching importance, particularly during Antiquity; it is perhaps also 
to be expected in future developments in our world. 

The very different effects of political organizations which were, at 
least in principle, quite similar in Egypt under the Phaiaohs, in Hel- 
lenistic, and in Roman times, show the very different economic conse- 
quences of bureaucratization which are possible, depending upon the 
direction of other factors present. The mere fact of bureaucratic or- 
ganization does not unambiguously tell us about the concrete direction 
of its economic effects, which are always in some manner present. At 
least it does not tell us as much as can be told about its relatively level- 
ing social effect. Even in this respect one has to remember that bureauc- 
racy as such is a precision instrument which can put itself at the disposal 
of quite varied interests, purely political as well as purely economic 
ones, or any other sort. Therefore, the measure of its parallelism with 
democratization must not be exaggerated, however typical it may be 
Under certain conditions, strata of feudal lords have also put this instru- 
ment into their service. There is also the possibility — and often it has 
become a fact, as for instance in the Roman Principate and in some 
forms of absolutist state structures — that bureaucratization of the ad- 
ministration is deliberately connected with the formation of status 
groups, or is entangled with it by the force of the existing groupings of 
social power. The explicit reservation of offices for certain status groups 
is very frequent, and empirical reservations are even more frequent. 



1 1 . The Power Position of the Bureaucracy 

A. THE POLITICAL IRRELEVANCE OF FUNCTIONAL INDISFENSABILITY 

The democratization of society in its totality, and in the modern 
sense of the term, whether actual or perhaps merely formal, is an 
especially favorable basis of bureaucratization, but by no means the only 



n ] The Power Position of the Bureaucracy 9 9 i 

possible one. After all, bureaucracy has merely the [limited] striving to 
level those powers that stand in its way in those concrete areas that, in 
the individual case, it seeks to occupy. We must remember the fact 
which we have encountered several times and which we shall have to 
discuss repeatedly: that "democracy" as such is opposed to the "rule" of 
bureaucracy, in spite and perhaps because of its unavoidable yet un- 
intended promotion of bureaucratization- Under certain conditions, 
democracy creates palpable breaks in the bureauratic pattern and impedi- 
ments to bureaucratic organization. Hence, one must in every individual 
historical case analyze in which of the special directions bureaucratiza- 
tion has there developed. 

For this reason, it must also remain an open question whether the 
power of bureaucracy is increasing in the modern states in which it 
is spreading. The fact that bureaucratic organization is technically the 
most highly developed power instrument in the hands of its controller 
does not determine the weight that bureaucracy as such is capable of 
procuring for its own opinions in a particular social structure. The ever- 
increasing "indispensability" of the officialdom, swollen to the millions, 
is no more decisive on this point than is the economic indispensability 
of the proletarians for the strength of the social and political power 
position of that class (a view which some representatives of the prole- 
tarian movement hold). 8 If "indispensability" were decisive, the equally 
"indispensable"' slaves ought to have held this position of power in any 
economy where slave labor prevailed and consequendy freemen, as is 
the rule, shunned work as degrading. Whether the power of bureauc- 
racy as such increases cannot be decided a •priori from such reasons. The 
drawing in of economic interest groups or other non-official experts, or 
the drawing in of lay representatives, the establishment of local, inter- 
local, or central parliamentary or other representative bodies, or of 
occupational associations — these seem to run direcdy against the bu- 
reaucratic tendency. How far this appearance is the truth must be 
discussed in another chapter, rather than in the framework of this 
purely formal and typological (feastiisriscJt) discussion. In general, only 
the following can be said here: 

The power position of a fully developed bureaucracy is always great, 
under normal conditions overtowering. The political "master" always 
finds himself, vis-it-vis the trained official, in the position of a dilettante 
facing the expert. This holds whether the "master," whom the bureauc- 
racy serves, is the "people" equipped with the weapons of legislative 
initiative, referendum, and the right to remove officials; or a parliament 
elected on a more aristocratic or more democratic basis and equipped 
with the right or the tie facto power to vote a lack of confidence; or an 



9 9 2 BUREAUCRACY [ Ck. XI 

aristocratic collegiate body, legally or actually based on self-recruitment; 
or a popularly elected president or an "absolute" or "constitutional" 
hereditary monarch. 



B. ADMINISTRATIVE SECRECY 

This superiority of the professional insider every bureaucracy seeks 
further to increase through the means of keeping secret its knowledge 
and intentions. Bureaucratic administration always tends to exclude the 
public, to hide its knowledge and action from criticism as well as it 
can. Prussian church authorities now threaten to use disciplinary 
measures against pastors who make reprimands or other admonitory 
measures in any way accessible to third parties, charging that in doing 
so theybecome "guilty" of facilitating a possible criticism of the church 
authorities. The treasury officials of the Persian Shah have made a "secret 
science of their budgetary art and even use a secret script. The official 
statistics of Prussia, in general, make public only what cannot do any 
harm to the intentions of the power-wielding bureaucracy. This tend- 
ency toward secrecy is in certain administrative fields a consequence of 
their objective nature: namely, wherever power interests of the given 
structure of domination toward the outside are at stake, whether this 
be the case of economic competitors of a private enterprise or that 
of potentially hostile foreign polities in the public field. If it is to be 
successful, the management of diplomacy can be publicly supervised 
only to a very limited extent. The military administration must insist on 
the concealment of its most important measures with the increasing 
significance of purely technical aspects. Political parties do not proceed 
difrerendy, in spite of all the ostensible publicity of the party conven- 
tions and "Catholic Congresses" (Katholikentage).* With the increasing 
bureaucratization of party organizations, this secrecy will prevail even 
more. Foreign trade policy, in Germany for instance, brings about a 
concealment of production statistics. Every fighting posture of a social 
structure toward the outside tends in itself to have the effect of buttressing 
the position of the group in power. 

However, the pure power interests of bureaucracy exert their effects 
far beyond these areas of functionally motivated secrecy. The concept of 
the "office secret" is the specific invention of bureaucracy, and few 
things it defends so fanatically as this attitude which, outside of the 
specific areas mentioned, cannot be justified with purely functional 
arguments. In facing a parliament, the bureaucracy fights, out of a 
sure power instinct, every one of that institution's attempts to gain 
through its own means (as, e.g., through the so-called "right of parlia- 



1 1 ] The Power Position of the Bureaucracy 9 9 3 

mentary investigation") 10 expert knowledge from the interested parties. 
Bureaucracy naturally prefers a poorly informed, and hence powerless, 
parliament — at least insofar as this ignorance is compatible with the 
bureaucracy's own interests. 



C. THE RULERS DEPENDENCE ON THE BUREAUCRACY 

The absolute monarch, too, is powerless in face of the superior 
knowledge of the bureaucratic expert — in a certain sense more so than 
any other political head. All the irate decrees of Frederick the Great 
concerning the "abolition of serfdom" were derailed in the course of 
their realization because the official mechanism simply ignored them as 
the occasional ideas of a dilettante. A constitutional king, whenever he 
is in agreement with a socially important part of the governed, very 
fluently exerts a greater influence upon the course of administration 
than does the absolute monarch since he can control the experts 
better because of the at least relatively public character of criticism, 
whereas the absolute monarch is dependent for information sciely upon 
the bureaucracy. The Russian Tsar of the ancien rdgime {b^bre the 
appointment of a Prime Minister in 1905] was rarely able to put across 
permanently anything that displeased his bureaucracy and violated its 
power intereft, Hfc ministries, which were subordinated directly to him 
as the autocrat, represented, as Leroy-Beaulieu very correcdy observed, 
a conglomerate of satrapies which fought among each other with all 
the means of personal intrigue and bombarded each other with volumi- 
nous "Memoranda," in the face of which the monarch as a dilettante 
was quite helpless." 

The concentration of the power of the central bureaucracy in a single 
pair of hands is inevitable with every transition to constitutional govern- 
ment. Officialdom is placed under a monocratic head, the prime minis- 
ter, through whose hands everything has to go before it gets to the 
'monarch. This puts the latter to a large extent under the tutelage of 
the chief of the bureaucracy. Wilhelm II, in his well-known conflict 
with Bismarck, fought against this principle, hut had to withdraw his 
attack very soon." Under the rule of expert knowledge, the influence 
of the monarch can' attain steadiness only through continuous com- 
munication with the bureaucratic chiefs which is methodically planned 
and directed by the central head of the bureaucracy. At the same time, 
constitutionalism binds the bureaucracy and the ruler into a community 
of interests against the power-seeking of the party chiefs in the parlia- 
mentary bodies. But against the bureaucracy the ruler remains power- 
less for this very reason, unless he finds support in parliament. The 



994 BUREAUCRACY [ Ch. XI 

desertion of the "Great of the Reich," here the Prussian ministers and 
top Reich officials, brought a monarch into approximately the same 
situation in November 1918 as did the parallel event under the condi- 
tions of the feudal state in 1076," This, however, is an exception, 
for the power position of a monarch is on the whole far stronger vis-a-vis 
bureaucratic officials than it was in any feudal or in a "stereotyped" 
patrimonial state. This is because of the constant presence of aspirants 
for promotion with whom the monarch can easily replace inconvenient 
and independent officials. Other circumstances being equal, only eco- 
nomically independent officials, that is, officials wfv belong to the 
propertied strata, can permit themselves to risk the loss of their offices. 
Today as always, the recruitment of officials from among propertyless 
strata increases the power of the rulers. Only officials who belong to a 
socially influential stratum which the monarch believes to have to take 
into account as support of his person, like the so-called Kanahehellen 
in Prussia, can permanendy and completely paralyze the substance of 
his will. 1 * 

Only the expert knowledge of private economic interest groups in 
the field of "business" is superior to the expert knowledge of the 
bureaucracy. This is so because the exact knowledge of facts in their 
field is of direct significance for economic survival. Errors in official 
statistics do not have direct economic consequences for the responsible 
official, but miscalculations in a capitalist enterprise are paid for by 
losses, perhaps by its existence. Moreover, the "secret," as a means of 
power, is more safely hidden in the books of an enterprise than it is in 
the files of public authorities. For this reason alone authorities are held 1 
within narrow boundaries when they seek to influence economic life in 
the capitalist epoch, and very frequendy their measures take an unfore- 
seen and unintended course or are made illusory by the superior expert 
knowledge of the interested groups. 



j 2. Excursus on Collegiate Bodies and Interest Groups 

Since the specialized knowledge of the expert became more and 
more the foundation for the power of the officeholder, an early concern 
of the ruler was how to exploit the special knowledge of experts with- 
out having to abdicate in their favor. With the qualitative extension 
of administrative tasks and therewith the indispensability of expert 
knowledge, it typically happens that the lord no longer is satisfied by 
occasional consultation with proven confidants or even with an assembly 
of such men called together intermittently and in difficult situations. 



12 ] ^Excursus on Collegiate Bodies & Interest Groups 9 9 5 

He begins to surround himself with collegiate bodies which deliberate 
and resolve in continuous session (.Conseil d'£tat, Privy Council, Gen- 
eraldirektorium, Cabinet, Divan, Tsungli Yamen, Wai-vm pu, etc.). 
The Rate von Haus aus are a characteristic transitional phenomenon 
in this development. 

The position of such collegiate bodies naturally varies according to 
whether they themselves become the highest administrative authority, 
or whether a central and monocrotic authority, or several such author- 
ities, stand at their side. In addition, a great deal depends upon their 
procedure. When the type is fully developed, such bodies meet — 
either actually or as a fiction — with the lord in the chair, and all 
important matters are resolved, after elucidation by the formal position 
papers of the responsible experts and the reasoned vota of other mem- 
bers, by a decision which the lord will sanction or reject by an edict. 
This kind of collegiate body thus is the typical form in which the 
ruler, who increasingly turns into a "dilettante," at the same time ex- 
ploits expert knowledge and— what Frequently remains unnoticed — 
seeks to fend off the threatening dominance of the experts. He keeps 
one expert in check by others, and by such cumbersome procedures 
seeks personally to gain a comprehensive picture as well as the cer- 
tainty that nobody prompts him into arbitrary decisions. Often the ruler 
expects to assure himself a maximum of personal influence less from 
personally presiding over the collegiate bodies than from having written 
memoranda submitted to him. Frederick William I of Prussia, whose 
actu:ii influence on the administration was very significant, almost 
never attended the. cOile^ianrly organized sessions of the cabinet minis- 
ters. He rendered his decisions tin Wiitien presentations by means of 
marginal comments or edicts which were sent to the ministers from 
the "cibinct," via the Feldjager, after consultation with the "cabinet"- 
servants personally attached to the king. The Cabinet, in Russia as well 
as in Prussia and in other states, thus developed into a personal fortress 
in which the ruler sought refuge, so to speak, from expert knowledge 
and the impersonal and functional routimz;Uion of administration. The 
hatred of the bureaucratic departments turned against the Cabinet, just • 
as did the distrust of the subjects in case of failure. 

By the collegiate principle the ruler furthermore tries to fashion 
a sort of synthesis of specialized experts into a collective unit. His 
success in doing this cannot be ascertained in general. The phenomenon 
itself, however, is common to very different forms of state, -from the 
patrimonial and feudal to the early bureaucratic, and it is especially 
typical for early princely absolutism. The collegiate principle has proved 
itself to be one of the strongest educative means for "matter-of-factness" 



9 9 6 BUREAUCRACY [ Ch. XI 

in administration. It also made it possible to counsel with socially influ- 
ential private persons and thus to combine in some measure the authority 
of notables and the practical knowledge of private enterprisers with the 
specialized expertness of professional bureaucrats. The collegiate bodies 
were one of the first institutions to allow the development of the modem 
concept of "public authorities," in the sense of enduring structures in- 
dependent of the person. 

As long as an expert knowledge of administrative affairs was the 
exclusive product of a long empirical practice, and administrative norms 
were not regulations but elements of tradition, the council of elders — 
often with priests, "elder statesmen," and notables participating — was 
the adequate form for collegiate authorises, which in the beginning 
merely gave counsel to the ruler, But since such bodies, in contrast to 
the changing rulers, were perennial formations, they often usurped 
actual power. The Roman Senate and the Venetian Council, as well 
as the Athenian Areopagus until its downfall and replacement by the 
rule of the demagogos, acted in this manner. We must, of course, 
sharply distinguish such authorities from the corporate bodies under 
discussion here. 

In spite of manifold transitions, collegiate bodies, as a type, emerge 
on the basis of the rational specialization of functions and the rule 
of expert knowledge. On the other hand, they must be distinguished 
from advisory bodies selected from among private and interested circles, 
which are frequendy found in the modern state and whose nucleus 
is not formed of officials or of former officials. These collegiate bodies 
must also be distinguished sociologically from the collegiate supervisory' 
"board of directors" (iAufsichtsrai) found in the bureaucratic structures 
of the modem private economy (joint stock corporation). This distinc- 
tion must be made in spite of the fact that such corporate bodies not 
in frequendy complete themselves by drawing in notables from among 
disinterested circles for the sake of their expert knowledge or in order 
to exploit them for representation and advertising. Normally [in Ger- 
many] such bodies do not consociate experts for their special knowl- 
edge, but rather the representatives of the paramount economic interests, 
especially of the banks financing the enterprise — and such men by no 
means hold merely advisory positions. They have at least a controlling 
voice, and very often they occupy an actually dominant position. Such 
bodies are to be compared (not without some distortion) to the as- 
semblies of the great independent holders of feudal fiefs and offices and 
other socially powerful interest groups of patrimonial or feudal polities. 
Occasionally, however, these have been the precursors of the "councils" 
which emerged in consequence of an increased intensity of adminis- 



12 ] Excursus on Collegiate Bodies & Interest Groufs 997 

tration, and even more frequently they have been precursors of cor- 
porations of such privileged status groups. 

With great regularity the bureaucratic collegiate principle was 
transferred from the central authority to the most varied lower author- 
ities. Within locally closed, and especially within urban units, collegiate 
administration is the original form of the rule of notables, as we indi- 
cated before [XI: 3:0]. Originally it worked through elected, later on, 
usually, or at least in part, through co-opted councilors, colleges of 
magistrates, decuriones and scahini. Such bodies are a normal element 
of organized "self-government," that is, the management of administra- 
tive affairs by local interest groups under the control of the bureaucratic 
authorities of the state. The above-mentioned examples of the Venetian 
Council and even more so of the Roman Senate represent transfers of 
the rule of notables, normally rooted in local political associations, to 
great overseas empires. In the bureaucratic state, collegiate administra- 
tion disappears again once progress in the means of communication and 
the increasing technical demands upon the administration necessitate 
quick and unambiguous decisions and the other motives for full bu- 
reaucratization and monocracy, which we discussed above, push them- 
selves dominandy to the fore. Collegiate administration disappears 
when, from the point of view of the ruler's interests, a strictly unified 
administrative leadership appears to be more important than thorough- 
ness in the preparation of administrative decisions. This is the case as 
soon as parliamentary institutions develop and — usually at th^ same 
time — as criticism from the outside and publicity increase. \ 

Under these modem conditions die thoroughly rationalized system 
of specialized ministers and [territorial] prefects, as in France, offers 
significant opportunities for pushing the old forms everywhere into the 
background, probably supplemented by the interest groups, normally 
in the form of advisory bodies recruited from among the economically 
and socially most influential strata. This practice, which we have men- 
tioned above, is becoming increasingly frequent and gradually may well 
be ordered more formally. 

This latter development, which seeks to put the concrete experience 
of the interest groups into the service of a rational administration by 
trained specialized officials, will certainly be important in the future 
and further increase the power of bureaucracy. It is well known how 
Bismarck sought to make use of the plan for a "National Economic 
Council" as a weapon against the Reichstag, accusing the opposing 
majority — to whom he would have never granted the right to pariia- 
mentary investigation as practiced in England — of trying to prevent 
officialdom, in the interests of parliamentary power, from becoming 



9 9% BUREAUCRACY [ Ck. XI 

"too knowing." What position the organized interest groups may in 
this manner obtain within the administration in the future cannot 
be discussed in the present context. 

Only with the bureaucratization of the state and of law in general 
can one see a definite possibility of a sharp conceptual separation of an 
"objective" legal order from the "subjective" rights of the individual 
which it guarantees, as well as that of the further distinction between 
"public" law, which regulates the relationships of the public agencies 
among each other and with the subjects, and "private" law which 
regulates the relationships of the governed individuals among them- 
selves. These distinctions presuppose the conceptual separation- of the 
"state," as an abstract bearer of sovereign prerogatives and the creator of 
legal norms, from all personal authority of individu^^These conceptual 
distinctions are necessarily remote from the nature of pre bureaucratic, 
especially from patrimonial and feudal, structures of authority. They 
were first conceived and realized in urban communities; for as soon a> 
their officeholders were appointed by periixjic elections, the individual 
power -holder, even if he was in the highest position, wss obviously 
no longer identical with the man who possessed authority "in his own 
right." Iffct it was left to the complete depersonalization of administra- 
tive management by bureaucracy and the rational systems tization of law 
to realize the separation of the public and the private sphere fully and in 
principle. 



1 3 . Bureaucracy and Education 



A. EDUCATIONAL SPECIALIZATION, DEGREE HUNTING 
AND STATUS SEEKINC 

We cunnot here analyze the far-reaching and general cultural effects 
that the ndvance of the rational bureaucratic structure of domination 
develops quite independently of the areas in which it Likes hold. Natu- 
rally, bureaucracy promotes a "rationalist" way of life, but the concept 
of rationalism allows for widely differing contents. Quite generally, one 
can only say that the bureaucratization of all domination very strongly 
furthers the development of "rational matter-of-factness" and the per- 
sonality type of the professional expert. This has far-reaching ramifica- 
tions, but only one important element of the process can be briefly 
indicated here: its effect upon the nature of education and personal 
culture CErziehung -and Bildung). 



13 ] Bureaucracy and Education 9 9 9 

Educational institutions on the European continent, especially the 
institutions of higher learning — the universities, as well as technical 
academies, business colleges, gymnasia, and other secondary schools — , 
are dominated and influenced by the need for the kind of "education" 
which is bred by the system of specialized examinations or tests of 
expertise (Fachfrufungswesen) increasingly indispensable for modern 
bureaucracies. 

The "examination for expertise" in the modern sense was and is 
found also outside the strictly bureaucratic structures: today, for in- 
stance, in the so-called "free" professions of medicine and law, and in 
the guild-organized trades. Nor is it an indispensable accompaniment 
of bureaucratization: the French, English and American bureaucracies 
have for a long time done without such examinations either entirely 
or to a large extent, using in-service training and performance in the 
party organizations as a substitute. 

"Democracy" takes an ambivalent attitude also towards the system 
of examinations for expertise, as it does towards all the phenomena of 
the bureaucratization which, nevertheless, it promotes. On the one 
hand, the system of examinations means, or at least appears to mean, 
selection of the qualified from all social strata in place of the rule by 
notables. But on the other, democracy fears that examinations and patents 
of education Will create a privileged "caste," and for that reason op- 
poses such a system. 

Finally, the examination for expertise is found already in pre- 
bureaucratic or semibureaucratic epochs. Indeed, its earliest regular 
historical locus is in iprebendally organized structures of domination. 
The expectation of prebends, first of church prebends — as in the Islamic 
Orient and in the Occidental Middle Ages — and then, as was especially 
the case in China, also of secular prebends, is the typical prize for 
which people study and are examined. These examinations, however, 
have only in part the character of tests for specialized "expertise." 

Only the modern development of full bureaucratization brings- the sys- 
tem of rational examinations for expertise irresistibly to the fore. The 
American Civil-Service Reform movement gradually imports expert 
training and specialized examinations into the United States; the exami- 
nation system also advances into all other countries from its main 
(European) breeding ground, Germany. The increasing bureaucratiza- 
tion of administration enhances the importance of the specialized 
examination in England. In China, the attempt to replace the old semi- 
patrimonial bureaucracy by a modern bureaucracy brought the expert 
examination; it took the place' of the fonder and quite differently struc- 
tured system of examinations. The bureaucratization of capitalism, with 



IOOO BUREAUCRACY • [ Ck. XI 

its demand for expertly trained technicians, clerks, etc., carries such 
examinations all over the world. 

This development is, above all, greatly furthered by the social 
prestige of the "patent of education" acquired through such specialized 
examinations, the more so since this prestige can again be turned to 
economic advantage. The role played in former days by the "proof 
of ancestry," as prerequisite for equality of birth, access to noble pre- 
bends and endowments and, wherever the nobility retained social 
power, for the qualification to state offices, is nowadays taken by the patent 
of education. The elaboration of the diplomas from universities, business 
and engineering colleges, and the universal clamor for the creation of 
further educational certificates in all fields serve the formation of a 
privileged stratum in bureaus and in offices. Such certificates support 
their holders' claims for connubium with the notables (in business 
offices, too, they raise hope for preferment, with the boss's daughter), 
claims to be admitted into the circles that adhere to "codes of honor," 
claims for a "status-appropriate" salary instead of a wage according 
to performance, claims for assured advancement and old-age insurance, 
and, above all, claims to the monopolization of socially and economically 
advantageous positions. If we hear from all sides demands for the intro- 
duction of regulated curricula culminating in specialized examinations, 
the reason behind this is, of course, not a suddenly awakened "thirst 
for education," but rather the desire to limit the supply of candidates for 
these positions and to monopolize them for the holders of educational 
patents. For such monopolization, the "examination" is today the uni- 
versal instrument — hence its irresistible advance. As the curriculum 
required for the acquisition of the patent of education requires con- 
siderable expenses and a long period of gestation, this striving implies 
a repression of talent (of the "charisma") in favor of property, for the 
intellectual costs of the educational patent are always low and decrease, 
rather than increase, with increasing volume. The old requirement of a 
knightly style of life, the prerequisite for capacity to bold a fief, is 
nowadays in Germany replaced by the necessity of participating in 
its 'surviving remnants, the duelling fraternities of the universities which 
grant the patents of education-, in the Angle-Saxon countries, the ath- 
letic and social clubs fulfill the same function. 

On the other hand, bureaucracy strives everywhere for the crea- 
tion of a "right to the office" by the establishment of regular disciplinary 
procedures and by the elimination of the completely arbitrary disposition 
of the superior, over the subordinate official. The bureaucracy seeks to 
secure the official's position, his orderly advancement, and his provi- 
sion, for old age. In this, it is supported by the "democratic" sentiment 



13 ] ' Bureaucracy and Education iooi 

of the governed which demands that domination be minimized; those 
who hold this attitude believe themselves able to discern a weakening 
of authority itself in every weakening of the lord's arbitrary disposition 
over the officials. To this extent bureaucracy, both in business offices 
and in public service, promotes the rise of a specific status group, just 
as did the quite different officeholders of the past. We have already 
pointed out that these status characteristics are usually also exploited 
for, and by their nature contribute to, the technical usefulness of bu- 
reaucracy in fulfilling its specific tasks. 

It is precisely against this unavoidable status character of bureauc- 
racy that "democracy" reacts in its striving to put the election of 
officials for short terms in place of the appointment of officials and to 
substitute the recall of officials by referendum for a regulated discipli- 
nary procedure, thus seeking to replace the arbitrary disposition of the 
hierarchically superordinate "master" by the equally arbitrary disposi- 
tion of the governed or rather, of the party bosses dominating them. 



B. EXCURSUS ON THE CULTIVATED MAN 

Social prestige based upon the advantage of schooling and educa- 
tion as such is by no means specific to bureaucracy. On the contrary. 
But educational prestige in other structures of domination rests upon 
substantially different foundations with respect to content. Expressed 
in slogans, the "cultivated man," rather than the "specialist," was the 
end sought by education and the basis of social esteem in the feudal, 
theocratic, and patrimonial structures of domination, in the English ad- 
ministration by notables, in the old Chinese patrimonial bureaucracy, 
as well as under the rule of demagogues in the Greek states during the 
so-called Democracy, The terns "cultivated man" is used here in a com- 
pletely value-neutral sense; it is understood to mean solely that a quality 
of life conduct which was held to be "cultivated" was the goal of edu- 
cation, rather than a specialized training in some expertise. Such edu- 
cation may have been aimed at a knightly or at an ascetic type, at *a 
literary type (as in China) or at a gymnastic-humanist type (as in 
Hellas), or at a conventional "gentleman" type of the Anglo-Saxon 
variety. A personality "cultivated" in this sense formed the educational 
ideal stamped by the structure of domination and the conditions of 
membership in the ruling stratum of the society in question. The 
qualification of this ruling stratum rested upon the possession of a 
"plus" of such cultural quality (in the quite variable and value-neutral 
sense of the term as used here), rather than upon a "plus" of expert 
knowledge. Military, theological and legal expertise was, of course, 



I O O 2 BUREAUCRACY [ Ch. XI 

intensely cultivated at the same time. But the point of gravity in the 
Hellenic, in the medieval, as well as in the Chinese educational cur- 
riculum was formed hy elements entirely different from those which 
wer^ "useful" in a technical sense. 

Behind all the present discussions about the basic questions of the 
educational system there lurks decisively the struggle of the "specialist" 
type of man against the older type of the "cultivated man," a struggle 
conditioned by the irresistibly expanding bureaucratization of all public 
and private relations of authority and by the ever-increasing importance 
of experts and specialised knowledge. This struggle affects the most 
intimate aspects of personal culture. 



14. Conclusion 

During its advance, bureaucratic organization has had to overcome 
not only those essentially negative obstacles, several times previously 
mentioned, that stood in the way of the required leveling process. In 
addition, administrative structures based on different principles did and 
still do cross paths with bureaucratic organization. Some of these have 
already been mentioned in passing. Not all of the types existing in the 
real world can be discussed here — this would lead us much too far 
afield; we can analyze only some of the most important structural 
principles in much simplified schematic exposition. We shall proceed 
in the main, although not exclusively, by asking the following questions: 

1. How far are these administrative structures in their develop- 
mental chances subject to economic, political or any other external 
determinants, or to an "autonomous" logic inherent in their technical 
structure? 2. What, if any, are the economic effects which these ad- 
ministrative structures exert? In doing this, one must keep one's eye 
on the fluidity and the overlapping of all these organizational principles. 
Their "pure" types, after all, are to be considered merely border cases 
which are of special and indispensable analytical value, and bracket 
historical reality which almost always appears in mixed forms. 

The bureaucratic structure is everywhere a late product of historical 
development. The further back we trace our steps, the more typical is 
the absence of bureaucracy and of officialdom in general. Since bu- 
reaucracy has a "rational" character, with rules, means-ends calculus, 
and matter-of-factness predominating, its rise and expansion has every- 
where had "revolutionary" results, in a special sense still to be discussed, 
as had the advance of rationalism in general. The march of bureaucracy 
accordingly destroyed structures of domination which were not rational 



14 ] Conclusion iooj 

in this sense of the term. Hence we may ask: What were these 
structures? 



NOTES 

Unless otherwise indicated, all notes and emendations are by Roth and Wittich. 

i. The Grand Duchy of Baden was one of the mainstays of liberalism in 
Imperial Germany. After 1900 liberals and Social Democrats began to cooperate. 
The "Great Coalition" of National Liberals, Progressives and Social Democrats 
was directed against the powerful Catholic Center party and conservative Protes- 
tant groups, which tried to gain control over the legislature. Since both Catholic 
priests and Protestant ministers were civil servants, they were opposed to anything 
which might alter their status. 

2. Richard Schmidt, a contemporary (bom 1862) and one-time colleague of 
Weber at Freiburg University, who extensively investigated the development of 
trial procedures and was interested in the problem of the "calculability" of judicial 
decisions. The term is used in his "Die deutsche ZivOprozessrefbrm und ihr 
Verhaltnis zu den avtslandischen Gesetzgebungen," Zeitsckrift fiir Politifc, I (1908), 
366; see also his AUgemeine StaatsUhre (3 vols.; Leipzig 1901-1903). 

3. Albrecht Mendelssohn-Bartholdy, Das Imverium des Richters, Strassburg 
1908. (W) 

4. Trial instruction issued by the praetor to the (lay) judge permitting a 
suit based not on a provision of the civil law (iws), but on the facts of the case 
as stated in the actio. Such cases obtained justiciable standing only by virtue of the 
praetor's acceptance of the formula; he thus played an innovatory role somewhat 
similar to that of the English equity courts. The stereotyped formulae were pub- 
lished in the magistrate's edict. Cf. Gerhard Dulckeit, Ramische Rechtsgeschichie 
Cad. ed., Munich 1957), 144. 

5. Kautelar-furisprwlenz. This term is in German generally used to designate 
the early stage of Roman secular jurisprudence, which was exercised primarily in 
the drafting of contracts (jxtutiones) and in the formulation of contractual pro- 
visions (cautelae). Cf. ch. VIH:»t>:3 and elsewhere in the "Sociology of Law"; 
Dulckeit, op. cit., 146S. 

6. I.e., the law interpretations of the great jurisconsults, which were bind- 
ing on the judges and in fact created a large part'of the classical Roman law. 

7. After the breakup of Chancellor Billow's Liberal-Conservative coalition in 
1909 (cf. Part Two, ch. II, n. 7), the Hansabwtd was established in the fol- 
lowing year as a rallying center for all forces of industrial society — from big bus- 
iness to labor — against the East Elbian aristocracy, whose conservative Reichstag 
representatives had refused the introduction of inheritance taxes for armament 
purposes. Indicative of the rigidity of Imperial Germany's political alignments was 
the fact that labor organizations refused to join the association and the greater part 
of big business deserted it within a year, preferring its old alliance with the big 
agrarian interests. A leading figure of the association was Gustav Stresemann, later 
for six years foreign minister of the Weimar Republic. Cf. J. Riesser, Der Hansa- 
hundQent: Diederichs, 1912). 

8. This is directed, among others, at Robert Michels, to whom Weber wrote 
in November 1906: 

"Indispensability in the economic process means nothing, absolutely nothing 
for the power position and power chances of a class, At a rime when no "cit- 



I O O 4 BUREAUCRACY [ Ch. XI 

izen" worked, the slaves were ten times, nay a thousand times as necessary 
as is tLe proletariat today. What does that matter? The medieval peasant, the 
Negro of the American South, they were aJI absolutely "indispensable." . . . 
The phrase contains a dangerous illusion. . . . Political democratization is the 
only thing which can perhaps be achieved in the foreseeable future, and that 
would he no mean achievement. ... I cannot prevent you from believing in 
more, but I cannot force myself to do so." 
Quoted in Wolfgang Mommsen, Max Weber und die deutsche Politik. 1890- 
iqzo (Tubingen: Mohr, ro^o), 97 and 121. 

9. Kathol'ikentag: An annual conference established in 1858, i>nder the direc- 
tion of a central committee, to discuss ecclesiastical, political arid social welfare 
issues and to represent German Catholicism before the public which was then 
largely Protestant. Discontinued during the Nazi period, the Congress has been 
meeting biannual I y since 1950. 

10. Enqveterecht. Weber assigned great significance to this right of parlia- 
mentary investigation, which the Reichstag was substantially lacking. Cf. below, 
Appendix Hriij. 

11. See Anatole Leroy-Beaulieu, The Empire of the Tsars and the Russians 
(New York: Putnam, 1894), vol. II, pp. 69-86. Weber seems to have used the 
German translation by L. Pezold (3 vols., 1 884-1890)., 

12. Weber refers here to monarchic constitutionalism, the form of govern- 
ment that Bismarck gave to Imperial Germany: the prime minister remained re- 
sponsible to the king, not to parliament, and the army also remained under the 
king's control. In practice, this arrangement gave extraordinary power first to Bis- 
marck, then to the Prussian and Imperial bureaucracy, both vis-a-vis the monarch 
and the parliament. Weber attacked this system in a sensational series of articles 
in the midst of the First World War; see Appendix II, "Parliament and Govern- 
ment in a Reconstructed Germany." A brilliant comparative analysis of monarchic 
constitutionalism was written by the historian who came closest to Weber's socio- 
logical (but not his political) approach : Otto Hinrze, "Das monarchische Prinzip 
und die konstitutionelle Verfassung," Preussische Jahrbiicher, vol. 144, 1911, 
381-412; reprinted in Hinfee's collected writings, ed. by Gerhard Oestreich: ' 
Stoat und Verfassung (Gottingen: Vaudenhoeck and Ruprecht, 1962), 359-^89. 

13. This passage is an addition to the older manuscript; however, it is not 
clear how many changes Weber actually made. Weber wrote the passage not only 
after the downfall of William II and the monarchic bureaucracy, but after he had 
attacked them in the Frankfurter Zeitung in 1917 (see Appendix II). Hence, 
whereas Weber draws in "Parliament and Government in a Reconstructed Ger- 
many" on the earlier part of the chapter, he also seems to draw on that essay in 
the present section. 

In referring to 1076, Weber compares the downfall of William II with the 
desertion of Henry IV by most of his great nobles in the face of the emperor's 
spectacular excommunication by Gregory VTI; ' Henry's dramatic submission at 
Canossa helped him to recoup his political fortunes and began Gregory's decline. 
The incident was one of .the high points in the conflict between papacy and 
empire, which determined much of the course of European history with all its 
eventual consequences for rationalism, capitalism and democracy. (See Weber's 
analysis of caesaropapisrn and hierocracy in ch. XV}t Weber's comparison can 
also be seen in the context of Bismarck's famous dictum at the height of his con- 
flict with the Catholic church that "we will not go to Canossa" (1872). A few 
years later, Bismarck did go, and in 1919 Weber went with the German peace 
delegation to another Canossa: Versailles. 



Notes t 5 



of tfe rXlLS K "i u *?**>** Earned . bill for the construction 

of the Mittel and Kanal the conservative Junler party fought the project. Anions 

officials who stood up to the Kaiser when he ordered them to vote for the Ml 
Sn^ffi r?n° (Ectai , S , w * re t d « b ^ K^d^fe* a „d temporarily suspended 
ST* If*? C ^ CC v F Bi r l0Vs ?"*^<^** CBerlin 1 !^ voH, ™ 
3£ » ^T'^'^ 1 ^^ m ie Mitte ^-Kanal Vorlage aus dem ja£re 
966) (G/M) " **""**• WfraclWtsffwWdStto (Cologne 



CHAPTE 



» XII 



PATRIARCHALISM AND 
PATRIMONIALISM" 



i . The Nature and Origin of Patriarchal Domination 

- Among the prebureaucratic types of domination the most important 
one by far is patriarchal domination. Essentially it is based not on the 
official's corrnitment to an impersonal purpose and not on obedience 
to abstract norms, but on a strictly personal loyalty. The roots of patri- 
archal domination grow out of the master's authority over his house- 
hold. Si ch personal authority has in common with impersonally oriented 
bure .cratic domination stability and an "everyday character." More- 
over, both ultimately find their inner support in the subjects' com- 
pliance with norms. But under bureaucratic domination these norms 
are established rationally, appeal to the sense of abstract legality, and 
presuppose technical training; under patriarchal domination the norms 
derive from tradition: the belief in the inviolability of that which has 
exis f ed from time out of mind. 

The meaning of the norms is fundamentally different under the 
two forms of domination. Under bureaucratic domination the enacted 
norm establishes that the person in power has legitimate authority to 
ksue a specific ruling. Under patriarchal domination the legitimacy of 
the masters orders is guaranteed by personal subjection, and only the 
fact and the limits of his power of control are derived from "norms," 
yet these norms are not enacted but sanctified by tradition. The fact 
that this concrete master is indeed their ruler is always uppermost in 
the minds of his subjects. The master wields his power without re- 
straint, at his own discretion and, above all, unencumbered by rules, 

[1006] 



i ] , - Nature and Origin of Patriarchal Domination 1007 

insofar as it is not limited by tradition or by competing powers. By \ 
contrast, the order of a bureaucratic official goes in principle only 
as far as his special "competence" permits, and this in turn is estab- 
lished by a rule. The objective basis of bureaucratic power is its tech- 
nical indispensability founded on specialized professional knowledge. 
In the case of domestic authority the belief in authority is based on 
personal relations that are perceived as natural. This belief is rooted 
in filial piety, in the close and permanent living together of all de- 
pendents of the household which results in an external and spiritual 
"community of fate." The woman is dependent because of the normal 
superiority of the physical and intellectual energies of the male, and 
the child because of his objective helplessness, the grown-up because 
of habituation, the persistent influence of education and the effect of 
firmly rooted memories from childhood and adolescence, and the servant 
because from childhood on the facts of life have taught him that he 
lacks protection outside the master's power sphere and that he must 
submit to him to gain that protection. Paternal power and filial piety 
are not primarily based oil an actual blood relationship, no matter how 
normal this relationship may be for them. Rather, primitive patriarchal- 
ism continues to view household authority as the power of disposition 
over property even after the (by no means primitive) recognition that 
procreation and birth are ^connected. The children of all women sub- 
ject to the authority of a master are considered "his" children if he 
so wishes, just as the offspring of his pnimals are his property. This 
holds whether the woman is a wife or a slave, and regardless of the 
facts of paternity. The purchase and selling of children is siill a com- 
mon phenomenon in developed cultures, in addition to the renting 
(into the manctjnum) and mortgaging of children and of women. 
Indeed, such transactions are the original form of adjusting manpower 
and labor demand among different households. As late as in Babylonian 
times freemen entered into a "work contract" by selling themselves 
into slavery for a limited time. HowtKi.', the purchase of children 
also serves other, especially religsaus purposes, such as securing the 
continuity of sacrifices offered to the dead; it is a precursor of "adoption.'' 
The household became more differentiated as soon as slavery de- 
veloped into a regular institution and the blood relationship became 
more factual: now the children as free subjects (liben) were distin- 
guished from the slaves. Of course, this distinction did not significantly 
limit the master's discretion, for he alone chose his children. Under 
Roman law even in historical times the master could designate by 
testament a slave as his heir (liber et heres esto) and sell his own child 



I O O 8 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. Xll 

into slavery. But apart from this possibility the slave differed from the 
master's child because he could not become head of a household. Most 
of the time, however, this power of disposition was denied to the master 
or at least curtailed. Moreover, wherever sacred and politically inspired 
limitations were imposed — the latter at first for military reasons — they 
primarily or exclusively concerned the children; however, it took a long 
time before these limitations were firmly established. 

Everywhere the objective basis of solidarity is the permanent shar- 
ing of lodging, food, drink and everyday utensils — in pre-Mohammedan 
Arabia as well as according to the terminology of some Hellenic laws of 
historic times, and generally according to most persistently patriarchal 
systems of law. It depended upon very different arrangements and was 
determined by diverse economic, political and religious conditions 
whether household authority was vested in a woman, or in the eldest 
son or in the economically most competent one (a possibility in the 
Russian extended family). In the same way it depended upon diverse 
factors whether patriarchal power was limited through heteronomous 
enactment, and if so in what fashion, or whether there were no limita- 
tion;; in principle, as in Rome and China. If there were such heteron- 
omous barriers, they could have the'sanction of criminal and civil law, 
as is nowadays the rule, or merely of sacred law, as in Rome, or merely 
the sanction of custom, as was originally the case in all 'places. The 
arbitrary violation of custom evoked the subjects' dissatisfaction and 
disapprobation. This too was an effective protection, for everything 
within this structure of domination is ultimately determined by the 
power of tradition, that is, the belief in the inviolability of what has 
always been (<&s "ewig Gestrigeri'~) . The Talmudic maxim, "Man 
should never change a custom" derives its practical significance not 
only from the inherent power of custom which is rooted in fixed at- 
titudes, but originally also from the fear of undefined magical evils 
which might befall an innovator or an approving group who violate the 
interests of the spirits. As the idea of god develops, this belief is replaced 
by one which holds that the gods have posited the traditional as norm, 
to be protected as something sacred. 

The two basic elements of patriarchal authority then are piety 
toward tradition and toward the master. The power of the former also 
constrained the master and hence benefited the subjects who had no 
formal rights; for example, the slaves were more protected under the 
tradition-bound Oriental patriarchalism than they were on the Cartha- 
ginian-Roman plantations Vv'here they were the object of an unham- 
pered rational exploitation. 



2 ] Domination by Honoratiores & Pure PatriarchaUsm 1009 

2. Domination hy Honoratiores and Pure Patriarchalism 

Patriarchal domination is not the only authority that relies on the 
sanctity of tradition. Another, the domination by honoraHores, is an im- 
portant form of normally traditional authority; we have dealt with it 
occasionally and we will deal with it again. It exists wherever social 
honor ("prestige") within a group has become the basis of domination 
— and by no means does this happen in every case of social honor. 
Domination by honoraHores differs from patriarchal domination because 
it lacks the specific personal loyalty — filial and servants' piety — that is 
motivated by membership in a household or a manorial, "servile" (leib- 
herrlicK) or patrimonial group. The specific authority of the notable — 
especially of one distinguished among his neighbors through property, 
education or style of life — derives from "honor." This typological dis- 
tinction should be made even though the boundaries are not rigid. In 
itself the authority of honoratiores differs greatly in basis, quality and 
impact. We will pursue this at more suitable occasions [sec. 16 and 17 
feelow]. At present we are concerned with patriarchal domination as 
the formally most consistent authority structure that is sanctified by 
tradition. 

In its pure form patriarchal domination has no legal limits. It is 
transferred without qualification to the new master at the time of the 
old masters death or downfall. The new master also acquires the sexual 
disposition of his predecessor's women — possibly of his own father's. 
Simultaneous holders of patriarchal power have at times existed, but 
this is naturally rare. Sometimes patriarchal power has been split; for 
example, the independent authority of a matron may be f6und next to 
the normally superordinated authority — a condition that has always 
been connected with the oldest typical division of labor, the division 
between the sexes. The female chiefs among the sachems of American 
Indians, and occasional subchiefs, such as the lukokesha in the realm 
>of Mwata Yamvo, who wielded independent authority in their own 
area, usually owed their existence to woman's function as the oldest 
agent of the basic economy, that is, the continuous provision of food 
through land cultivation and food processing; or they owe it to the 
complete separation from the household of all men capable of bearing 
arms, a separation which occurs in certain kinds of military organization. 

When we dealt previously with the household we observed the 
following: Its original sexual and economic communism was increas- 
ingly curtailed; its internal closure increased steadily, the rational "en- 
terprise" emerged from the capitalist market-oriented household, . the 
principle of accounting and of fixed shares gained more and more im- 



I O I O PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

portance, and women, children and slaves acquired personal and finan- 
cial rights of their own. By definition these developments amounted to 
as many limitations of unrestrained patriarchal power. As the polar 
opposite of the capitalist enterprise we found the communal form of 
household differentiation: the oikos. Our present purpose is to examine 
that form of domination which developed on the basis of the oikos and 
therefore of differentiated patriarchal power: patrimonial domination. 



3 . Patrimonial Domination 

At first it is only a decentralization of the household when the lord 
setdes dependents (including young: men regarded as family members) 
on plots within his extended land-holdings, wth a house and family 
of their own, and provides them with animals (therefore: peculium) 
and equipment. But this simple development of an oikos leads in- 
evitably to an attenuation of full patriarchal power. Since there are 
originally no consociations in the form of binding contracts between 
masters and dependents — in all civilized countries it is even today legally 
impossible to contractually modify the legal content of paternal author- 
ity — , the psychological and formal relations between master and sub- 
ject are here too regulated merely in accordance with the masters 
interest and the distribution of power. 

The dependency relationship itself continues to be based on loyalty 
and fidelity. However, such a relationship, even if it constitutes at first 
a purely one-sided domination, always evolves the subjects' claim to reci- 
procity, and this claim "naturally" acquires social recognition as 
custom. Whereas the physical whip assures the exertion of the slaves 
lodged in barracks a,nd the wage whip and threat of joblessness guar- 
antees the effort of the "free" worker, whereas the marketable slave 
must be readfly replaceable in order to be profitable and the replace- 
ment of the "free" worker costs nothing as long as there are others 
willing to work, the master who decentralizes his household is largely 
dependent upon his subjects' compliance and always upon their capacity 
to deliver rent in kind. Hence, the master too "owes" something^ to the 
subject, not legally but according to custom and in his own self-interest: 
first of all external protection and help in case of need, then-"humane" 
treatment and particularly a "customary" limitation of economic ex- 
ploitation. Under a form of domination which is not directed toward 
monetary acquisition but toward the satisfaction of the master's wants 
out of his own resources, exploitation may be reduced without violating 



3 ] - Patrimonial Domination i o i i 

his interests; this is possible because his demand is only quantitatively 
different From that of his subjects, given the absence of a qualitative ex- 
pansion of needs which is in principle limitless. Indeed, such a restraint is 
positively advantageous to the master, because not only his security but 
also his maintenance is strongly dependent upon the basic attitudes and 
the morale of his subjects. 

Custom- prescribes that the subject support the master with all avail- 
able means. In extraordinary cases this obligation is economically un- 
limited, for example in the case of freeing the master from debt, pro- 
viding a dowry for his daughters or ransoming him from captivity. 
Personally unlimited is the subject's obligation to render service in a 
feud or in war. Me serves as page, coachman, carrier of arms, camp- 
follower — as in the knighdy armies of the Middle Ages — or as private 
fully equipped warrior of his master. The last kind of service was ap- 
parendy also rendered by the Roman clients who held a precarium, 
which was revokable at any time and in its function probably similar 
to a service fief. It was rendered by the coloni as early as the Civil 
Wars, and of course by the retainers of manorial lords and cf cloisters 
in the Middle Ages. In the same fashion the armies of the Pharaoh 
and the Oriental kings and great landlords were to a significant extent 
recruited patrimonii !3v from their coloni and equipped and maintained 
by the master's household. Occasional]}', especially in the navy, we find 
levies of slaves; in the ancient Orient they canted the lord's tag of 
ownership. For the rest, the retainer renders compulsory labor (Vron- 
den) ,:nd services, honorary gilts, regularly and irregularly levied taxes, 
fcnrijlly according to the master's need and discretion, in fact accord- 
ing to established custom. The master remains, of course, free to 
expropriate him at wi!l, and custom too takes it originally for granted 
that the master a.- fieely dispose of persons and possessions left be- 
hind, at the retainer's death. Patrimonial domination is thus a special 

t case of patriarchal domination— domestic authority decentralized through 
assignment of land and sometimes of equipment to sons of the house 
or other dependents, 

Mere habituation is the first factor that stereotypes the patrimonial 
relationship and in fact limits the master's discretion. From there the 

'sanctifying power of tradition evolves. Everywhere the purely factual 
resistance against everything unwonted is powerful; in addition, the 
master is restrained from introducing innovations by the possible dis- 
approval of his environment and by his own fear of religious powers 
which everywhere protect tradition and dependency relationships. Fur- 
thermore, the master is considerably influenced by the well-founded 
apprehension that his own, especially his economic, interests would be 



I O I 2. PATRIARCHAL AND PATRIMONIAL DOMINATION [Ch. Xll 

badly hurt by any shock to traditional loyalty produced by groundless 
and "unjust" interference with the traditional distribution of duties and 
rights. Here, too, the master's omnipotence toward the individual de- 
pendent is paralleled by bis powerlessness in face of the group. Thus 
arose almost everywhere a legally unstable, but in fact very stable order 
which diminished the area of the master's discretion . in favor of tra- 
ditional prescription. The master may want to formalize this traditional 
order as a manorial and service reglement in the manner of the modem 
factory regulations, with the difference that the latter are rational con- 
structs for rational purposes, whereas the former derives its obligatory 
power from its very recourse to tradition rather than to future purpose. 
It is obvious that the regulations decreed by the master do not commit 
him legally. But if he is very much dependent upon the good will of- 
tbose from whom he derives revenues, either because of the extensive 
size of his property that is assigned to d?^~;idents or because of its 
fragmented location or because of continuous political and military 
preoccupations, a law of sodalities may emerge and tie the master in 
fact very strongly to his own decrees. For every such order turns a 
mere interest group into a privileged group (Recht&genossen) — whether 
or not in the strictly legal sense — , increases the members' knowledge 
of the common nature of their interests and thus the inclination and 
ability to look after them; eventually the subjects confront the master, 
at first only occasionally, then regularly, as a closed unit. This was just 
as much the consequence of the leges — ordinances, not laws — which 
were issued for the Imperial domains, especially in Hadrian's times, as^ 
of the medieval manorial ordinances (Hojrechte). If there is a consistent 
development, the customal of the manorial court, in which the manorial 
dependents participate, becomes the source of authoritative interpreta- 
tion of the legal order. From here dates a kind of "constitution" — only 
that a modern constitution exists for the sake of continuous legislation 
and of the power distribution between bureaucracy [and legislative 
bodies] in connection with the rational regulation of social relations, 
whereas the customals serve the interpretation of tradition. Not only 
this development, which iarely reached its logical conclusion, but al- 
ready the earlier stages of the process in which tradition stereotyped 
patrimonial relations resulted in a considerable disintegration of pure 
patriarchalism. A strongly tradition-bound structure of domination 
arises, the manor (seignewrie), joining lord and manorial dependent 
with ties that cannot be dissolved unilaterally. At this point we cannot 
pursue the vicissitudes of this institution, which has fundamental im- 
portance and which is found all over the world. 



4 3 The Patrimonial State , 1013 

4. The Patrimonial State 

Patrimonial conditions have had an extraordinary impact as the 
basis of political structures. As we shall see, Egypt almost appears as 
a single tremendous oikos ruled patrimonially by the pharaoh. The 
Egyptian administration always retained characteristics of the oikos 
economy, and the Romans treated the country essentially like a huge 
Imperial domain. The Inca state and in particular the Jesuit state in 
Paraguay were based on forced labor (fronhofartige Gebilde). It is true 
that the political realm of a prince comprises not only his manors but 
also political dependencies; however, the actual political power of the 
Oriental sultans, the medieval princes and the Far Eastern rulers cen- 
tered in these great patrimonial domains. In these latter c^ses the 
political realm as a whole is approximately identical with a huge 
princely manor. 

A vivid picture of the administration of these domains is provided 
by the reglements of the Carolingian period and also by the extant 
ordinances of the Roman Imperial domains. On a vast scale the Near 
Eastern and Hellenistic states contained areas the inhabitants of which 
were manorial and personal dependents of the monarch and which were 
administered in manorial fashion from his household. 

We shall speak of a patrimonial state when the prince organizes 
his political power over extrapatrimonial areas and political subjects — 
which is not discretionary and not enforced by physical coercion — -just 
like the exercise of his patriarchal power. The majority of all great 
continental empires had a fairly strong patrimonial character until and 
even after the beginning of modern times. 

Originally patrimonial administration was adapted to the satisfaction 
of purely personal, primarily private household needs of the master. 
The establishment of a "political" domination, that is, of one master's 
domination over other masters who are not subject to his patriarchal 
.power implies an affiliation of authority relations which differ only in 
degree and content, not in structure. The substance of the political 
power depends upon the most diverse conditions. The two powers 
which we consider specifically political : military and judicial authority, 
are exercised without any restraint by the master as components of 
his patrimonial power. By contrast, the judicial "power" of the chief 
over those who are not members of his household has conferred only 
the position of an arbitrator in all periods of peasant communities. The 
lack of autocratic authority which can employ physical force constitutes 
the most distinct difference between "merely" political domination and 
domestic authority. But as his power increases, the holder of judiciary 



I O I 4 PAITUARCHAL AND PATRIMONIAL DOMINATION [ Ck. XII 

authority tends to consolidate his position through the usurpation of 
contempt powers (Bann&walten), until it is practically identical with 
the basically unlimited judicial power of the patriarch. A special mili- 
tary authority over those who are not household dependents or — in the 
case of clan feuds — clan members is known in early history only in the 
form of occasional consociations for staging or repelling a raid, and then 
normally in the form of subordination under a leader who arises or is 
elected ad hoc; we will deal later with the structure of his auLhority. 
However, if the military authority of a political patrimonial ruler per- 
sists it turns into a levying power toward his political subjects which 
differs only in degree from the patrimonial subjects' duty to render' 
military service. 

In the patrimonial state the most fundamental obligation of the 
subjects is the material maintenance of the ruler, just as is the case 
m a patrimonial household; again the difference is only one of degree. 
At first, this provisioning takes the form of honorary gifts and of 
support in special eaies, in accordance with the spirit of intermittent 
poiitica! action. However, with the increasing continuity and rational- 
isation ol political authority these obligations became more and more 
comprehensive and ever more similar to patrimonial ones, so tha: in the 
Middle Ages it is often very difficult to tell apart obligations originating 
in political a;=d patrimonial power. In all ancient, Asian and medieval 
large-scale states which were dependent upon a natural economy the 
ruler is typically maintained in such a manner that the demands for 
focd, clothing, armor and other wants are appo/tioiuxl in kind among 
the various p.-.-ri-s of his realm; the court is provisioned by the ..object:; 
wherever n resides at any given time. A communal economy (CerMern- 
■wiitsch&fi) which relies on payment and delivery in kind is the pri- 
mary form of satisfying the needs of patrimonial political structure^. 
However there were economic variations: the Persian royal household 
was a heavy burden for the city in which the king resided, but the 
Hellenistic roval household which was based on money economy w<ss 
a source of income for the city. With the development of trade and of 
money economy the patrimonial ruler may satisfy his economic needs 
no longer through his oikos but through profit-oriented monopolism. 
This happened on a vast scale in Egypt, where even the pharaoh of the 
early period of natural economy carried on trade for his own account; 
in the Ptolemaic period and even more so under Roman rule a great 
many diverse monopolies and countless taxes replaced the old liturgical 
methods. Fc in the course of financial rationalization patrimonialism 
moves imperceptibly toward a rational bureaucratic administration, 
which resorts to systematic taxation. Whereas the old mark of "liberty" 



4 } The Patrimonial State i o i 5 

is the voluntary material support of the ruler and the absence of any 
patrimonial obligation to surrender fixed tributes, a very powerful lord 
will tend to force even the "free" subjects to meet the costs of his feuds 
and of his appropriate upkeep through means of liturgy or taxation. The 
only difference between the two categories of subjects consists then 
regularly in the more narrow definition of these tributes and in certain 
legal guarantees for the "free," that means, the merely political subject. 



5. Power Resources: Patrimonial and Non-Patrimonial 
Armies * 

The tributes which the prince can extract from political subjects 
depend upon his power over them and thus upon his prestige and the 
effectiveness of his apparatus; however, the tributes remain largely cir- 
cumscribed by tradition. The prince may dare to demand unwonted and 
new tributes only under favorable conditions — especially when he is 
supported by troops who are at his disposal independently of the sub- 
jects' good will. 

These troops may consist, 1) of patrimonial slaves, retainers living 
on allowances, or cohni, Pharaohs and Mesopotamian kings, as well 
as powerful private lords in Antiquity (for example, the Roman no- 
bility) and in the Middle Ages (the seniores), employed their coloni 
as personal troops; in the Orient serfs branded with the lord's property 
mark were also used. However, at least the agrarian coloni were ill-suited 
as a continuously available force, since they had to maintain themselves 
and the lord and hence were normally indispensable; furthermore, ex- 
cessive demands — transcending tradition — could shake their loyalty, 
which had a merely traditional basis. Therefore, the patrimonial prince 
regularly sought to base his power over political subjects on troops 
specifically raised for this purpose, whose interests were completely 
solidary with his own. 

- This military force may be made up, 2) of slaves who are completely 
separated from agricultural production. Ibdeed, after the final dissolu- 
tion in 833 of the Arabian, tribally organized theocratic levy, whose 
"booty-happy" religious zeal had been -the bearer of the great conquests, 
the Caliphate and most Oriental products of its disintegration relied 
for centuries on armies of purchased slaves. The Abbasids bought and 
militarily trained Turkish slaves who, as tribal aliens, appeared wholly 
tied to the ruler's domination; thus the dynasty became independent 
of the national levy and its loose peacetime discipline and created a 



I O I 6 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. Xll 

disciplined army. It is uncertain when the purchased Negro slave troops 
of the great families in the Hejaz came into being, especially those 
of the various families fighting one another for control over Mecca- 
However, it seems certain that in Mecca these Negro soldiers, in con- 
trast to mercenaries as well as military freedmen, really served their 
intended purpose as the private armies of their master and his family; 
those other military groups occasionally played the role of the praetorian 
guard, changed their master and opted among various pretenders. The 
number of Negro troops depended upon the competing families' in- 
comes, which in turn depended directly upon the size of their landed 
property and indirectly up^in their share in the exploitation of the , 
pilgrims, a source of revenue which was monopolized by and appor- 
tioned among the families residing in Mecca. The use of Turkish slaves 
by the Abbasids and of purchased slave soldiers in Egypt, the Mame- 
lukes, turned out very differently. Their officers succeeded in gaining 
control over the nominal rulers; even though the troops, especially in 
Egypt, officially remained slave troops and were replenished hereditarily 
and through purchase, they were in fact and eventually in law benefice- 
holders; they finally received the whole land in lieu of their pay, first 
as mortgagees and then as owners; their emirs controlled the whole ad- 
ministration until the Mamelukes were annihilated in Muhammed Ali's 
blood bath [in 1811]. The slave army presupposed considerable liquid 
capital on the part of the ruler for the initial purchase; furthermore, its 
good will was dependent on pay and therefore upon the ruler's money 
revenues. However, the feudalization of the economy was facilitated 
when the Seljuk troops and the Mamelukes were assigned the tax yield 
of land and subjects; eventually land was transferred to them as service 
holdings, and they became landowners. The extraordinary legal in- 
security of the taxpaying population vis-a-vis the arbitrariness of the 
troops to whom their tax capacity was mortgaged could paralyze com- 
merce and hence the money economy; indeed, since the period of the 
Seljuks [ca. 1050-1150] the Oriental market economy declined or 
stagnated. 

3) The Ottoman rulers, who until the 14th century were supported 
in essence only by the Anatolian levies, resorted for the first time in 
1330 to the famous conscription of boys (.devshirme), since the discipline 
of the levies and also of the rulers' Turkmenian mercenaries was in- 
sufficient for the great European conquests; from conquered peoples 
who were tribal or religious aliens (Bulgarians, Bedouins, Albanians, 
Greeks) boys were recruited for the newly formed professional army of 
Janissaries Qyenicheri means "new troops"). Boys aged ten to fifteen 
were conscripted every five years; at first 1,000 were recruited, later in- 



5 ] Power Resources: Types of Armies i o i 7 

creasingly more; finally their establishment numbered 1 35,000. The boys 
were drilled for about five years, received religious instruction (without 
directly being forced to embrace the Islamic religion), and were then 
incorporated into the army. According to the original regulation, they 
were supposed to remain celibate, to live an ascetic life in barracks 
under the patronate of the bektashi order, the founder of which was 
their patron saint, and to refrain from commercial activities; they were 
subject only to the jurisdiction of their own officers and had other 
significant privileges, officers were promoted according to seniority, there 
was an old-age pension and a daily allowance during a campaign, for 
which they were obliged to furnish their own weapons. During peace- 
time they were dependent upon certain joindy administered revenues. 
The extensive privileges made the positions desirable, and Turks, too, 
attempted to have their children accepted. The Janissaries, on the other 
hand, attempted to monopolize the positions for their own families. As a 
result, admission was first limited to relatives and then to children of 
Janissaries, and the ctevshirme was practically stopped at the end of the 
17th century; the last coriscription oider, which was not executed, was 
issued in 1703. The Janissaries were the most important force for the 
great European expansion from the conquest of Constantinople to the 
siege of Vienna, but they were a corps so prone" to reckless violence and 
often so dangerous to the sultan himself that in 1825 a Moslem army 
was conscripted, based on a fetwa of the Skeikh-iil-hlam according to 
which the faithful were to undergo military training, and the revolting 
Janissaries were annihilated in a tremendous blood bath [in 1826]. 

4) The use of mercenaries. The use of such troops was riot neces- 
sarily dependent upon -monetary compensation. In early Antiquity we 
find mercenaries^who are primarily, paid in kind. Buf the real incentive 
was always that part of the pay rendered in preciof^s metals. The prince 
therefore had to have monetary revenues for the mercenaries, just as 
he had to have a* treasure for the slave armies in order to afford their 
acquisition." 1 He r3i^d reverses either by trading oKby^producing for 
the market, or by levymg nw^etary tributes upon the N subjects, supported 
as he was by the mercenaries whdm K^paid wirhNhese tributes. In 
both cases, but especially in the latter, a money economy had to exist. 
In fact, in the Oriental states, and since the beginning of modern times 
also in the Occident, we observe a characteristic phenomenon : the op- 
portunities for the military monarchy of a despot backed by mercenaries 
increase significandy with the advance of money economy. In the Orient 
the military monarchy has since remained the typical national form of 
domination, and in the Occident the signori of the Italian cities, just 
as formerly the ancient tyrants and largely also the 'legitimate" monarchs 



I O I 8 PATRIARCHAL AND PATRIMONIAL DOMINATION ,[ Ck. XII 

based their power upon mercenary troops. Naturally, the hired soldiers 
were most closely tied through solidary interests to the prince's domina- 
tion whenever they were completely alien (,stammfrenu£) to the subjects 
and thus could neither seek nor find close ties with diem. Indeed, the patri- 
monial rulers quite regularly preferred to recruit aliens for their body- 
guards, from the Cretans and Philistines of David to the Swiss guards of 
die Bourbons. Almost every radical "despotism" had such a base. 

5) Hie patrimonial ruler may also rely on persons who have been 
granted landlots, just like manorial peasants, but instead of economic 
services they need render only military ones, and for the rest they enjoy 
privileges of an economic or other kind. The monarch's troops in the 
ancient Orient were partly recruited in this fashion, especially the so- 
called "warrior caste" of Egypt, the Mesopotamian fief-warriors, the 
Hellenistic cleruchs and more recendy the Cossacks. This means of 
creating a personal military force was, of course, also used by other patri- 
monial rulers who were not princes, as we will see when we will deal 
with the "plebeian" variants of feudalism [ch. XIII:*]. These troops 
too, were particularly reliable if they came* from alien tribes and thus 
were completely tied to the ruler's domination. Therefore land was 
often granted especially to persons alien to the country. However, dif- 
ferent tribal membership is by no means an indispensable prerequisite. 

For' 6) the solidarity of interests that developed between the ruler 
and his professional warriors — his "soldiers" [literally, "hired men"] was 
at any rate sufficiendy strong without tribal heterogeneity, and could be 
significandy increased through the mode of selecting the troops — as in 
the case of Janissaries — or through a privileged legal position vis-a-vis the 
subjects. Wherever the patrimonial ruler did not recruit his army from 
tribal aliens or pariah castes but from subjects — and hence through 
conscriftion — he adhered to fairly generally determined social criteria. 
Nearly always the strata which hold the social and economic power in 
their hands were exempted from recruitment for the "standing army" or 
they were given the welcome opportunity of buying themselves off. To 
this extent the patrimonial ruler regularly based his military power upon 
the propertyless or at least nonprivileged masses, and especially the rural 
masses. Thus he disarmed his potential competitors for domination. By 
contrast, any army of honoratiores, whether it be the citizens army of an 
urban commonwealth or the army of a tribal association of freemen, reg- 
ularly turns the duty and the honor of carrying arms into a privilege of 
a dominant stratum. The selection from the ranks of the negatively 
privileged, especially from the economically underprivileged, strata was 
facilitated by an economic circumstance and a related military-technical 
development; On the one hand, economic indispensability became more 



5 ] _ Power Resources: Types of Armies i o i 9 

prominent with the increasing intensity and rationalization of economic 
acquisition and on the other military activities became a permanent "pro- 
fession" with the growing importance of military training. Under certain 
economic and social preconditions both phenomena could promote the 
development of a status group of honoratiores who were trained war- 
.riors. The feudal army of the Middle Ages just as the Spartan army of 
" hoptites are examples. Both armies were founded on the economic in- 
dispensability of the peasants and a military technology which suited 
the*military training of a dominant stratum. But the army of the patri- 
monial prince is based upon the fact that the propertied strata, too, were 
or became economically indispensable, as for example the trading and 
craft bourgeoisie of ancient and medieval cities; this fact, together with 
military technology and the political needs of the ruler for a standing 
army, required the conscription of "soldiers" for permanent service, not 
just for occasional campaigns. Hence the development of patrimonialism 
and of the military monarchy is not only a consequence of purely po- 
litical circumstances: of territorial expansion and of the resulting need 
for the permanent protection of the frontiers — as in the Roman empire 
— but also very often a consequence of economic changes: of the in- 
creasing rationalization of the economy, in connection therefore with an 
occupational specialization' and a differentiation between "military" and 
"civilian" subjects, as it occurred equally in late Antiquity and in the 
modern patrimonial state. The patrimonial ruler customarily draws the. 
economically and socially privileged strata over to his side by exclusively 
reserving for them the leading positions in the standing army, which is 
organized into a body of disciplined and trained permanent units; these 
positions now offer also a specific "profession" with social and economic 
opportunities in the manner of bureaucratic officialdom. Instead of being 
honoratiores who are also warriors they are now drawn into a profes- 
sional officers career arid provided with status privileges. 

Finally, there is a decisive economic condition for the degree to 
which the royal army is "patrimonial, " that means, a purely personal 
army of the prince and hence at his disposal also against his own politi- 
cal subjects (Stammesgenossen') : the army is equipped and maintained 
out of supplies and revenues belonging to the ruler. The more this con- 
dition prevails, the more unconditionally is the army in the ruler's hands, 
since it is in this case incapable of any action without the ruler and 
completely dependent upon him and his non-military officials; of course, 
manifold intermediate forms between such a pure patrimonial army and 
military organizations based upon self-equipment and self-provisioning 
have existed. For example, the granting of land constitutes, as we shall 
see, a form of devolving the burdens of equipment and maintenance 



1020 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Cft. XII 

from the lord upon the soldiers themselves, but it also leads, under cer- 
tain circumstances, to a significant weakening of his power of disposi- 
tion. . 

However, scarcely anywhere does the political authority of the 
patrimonial prince rest exclusively upon the fear of his patrimonial mili- 
tary power. Wherever this fear was very real, it meant in effect that 
the ruler himself became so dependent on his army that, in the event 
of his death, of ill-fated wars and similar cases, the soldiers simply dis- 
persed, went on strike, deposed and installed dynasties, or they had 19 
be newly won through donations and promises of higher pay; of course, 
they also could be made to desert the ruler through the same means. In 
the Roman empire this phenomenon was the consequence of the mili- 
tarism of the Severans, and under Oriental sultanism it was a regular 
feature. The result was the sudden collapse of a patrimonial regime and 
the equally sudden rise of a new one, and therefore, great political in- 
stability. To an extreme extent, this was the fate of the rulers in the 
classic locale of patrimonial armies, the Near East, which was also the 
classic location of "sultanism." 



6. Patrimonial Domination and Traditional Legitimacy 

As a rule, however, the political patrimonial ruler is linked with the 
ruled through a consensual community which also exists apart from his 
independent military force and which is rooted in the belief that the 
filler's powers are legitimate insofar as they are traditional. Hence we; 
will call "political subjects" those who are in this sense legitimately 
ruled by a patrimonial prince. They differ 'from the freemen of the 
judicial and military folk community (Ding- und Heergenossen~) by be- 
ing subject to taxes and service for political purposes;, they differ from 
the personal retainers of the patrimonial lord by virtue of the right of 
mobility, which exists at least in principle and which they share with 
the free retainers who are only manorial, not personal dependents. 
Furthermore, the political subject differs from the personal retainer by 
owing traditional and therefore fixed services and taxes, just as the 
manorial retainers do. However, he differs from both in that he can 
freely dispose of his property and, in contrast to the free manorial re- 
tainer, also of his land, insofar as the prevailing order limits this at all; 
the political subject can bequeath his property according to custom and 
can marry without the lord's consent; in legal matters he does not ad- 
dress the manorial or house officials, but one of the various courts, if he 
does not resort to selfhelp by feuding. This he is entided to do as long 



6 ] Patrimonial Domination & Traditional Legitimacy i o 2 i 

as the feud is not outlawed by a general public peace edict (Land- 
frieden). For in principle he has the right and hence also the duty to 
bear arms. 

However, the bearing of arms also obliges the political subject to 
follow the princes call to arms. Despite the predominance first of feudal 
and later of mercenary armies, the English kings stressed to their pciiti- 
cal subjects the duty of owning their own arms and of equipping them- 
selves, gradated according to their property. And in the case of the 
rebellious German peasants of the 16th century the traditional possession 
of arms was still important. However, this "militia" of merely political 
subjects was by right only available for traditional purposes, for the 
defense of the country (Lan^wekO that is, but not for the various feuds 
of the patrimonial prince. Although the professional or patrimonial army 
of the prince was formally a hired army, it too could resemble in sub- 
stance a levy of the militia, if it was indeed recruited from the subjects; 
the militia, on the other hand, could occasionally approximate the pro- 
fessional army. The battles in the Hundred Years' War were fought not 
only by knights but very prominently also by the English yeomanry, and 
a great many patrimonial forces were intermediate between a patrimonial 
army proper and a levy. The more such forces were levies and the less 
they were specifically patrimonial troops, the more limited was the 
prince in their use and the more tied by tradition was he with regard 
to his political power vis-a-vis the subjects; a levy would not have un- 
conditionally supported his violation of tradition. Therefore it was his- 
torically important that the English militia was not a patrimonial army of 
the ting, that it was based on the freemen's right to bear arms. To a 
large extent the militia was the military l^eat of the great revolution 
against the tax claims of the Stuarts, wkiA violated tradition, and the 
negotiations of Charles I with the victorious parliament, which were 
hopeless on this score, ultimately concerned the control over the militia. 

The subjects' tax and service obligations deriving from political 
domination were as a rule not only quantitatively more clearly circum- 
scribed by tradition than those stemming from manorial and personal 
dependency, but were also legally distinguished from the latter. In 
England, for example, the property of the freemen rather than the re- 
tainer was charged with the trinoda necessitas: the responsibility for 
i) the construction of fortifications, 2) road and bridge construction, 
and 3) the military burdens. In southern and western Germany as late 
as the 1 8th century the services owed to the judiciary lord were sep- 
arated from duties deriving from personal dependence CLetbherrsckaft); 
the former were the only remaining personal obligations after personal 
dependence proper had been transformed into a rent claim. Thus, the 



¥• 



? ■ 

;, I 022 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck. XII 

obligations or freemen are everywhere bound by tradition. Taxes levied 
in violation of tradition and by virtue of special decrees, to which the 
subjects yielded with or without a particular agreement with the ruler, 
often continued to denote by their names (Ungeld or maLrtolta) their 
irregular origin. However, patrimonial domination inherently tends to 
force the extrapatrimonial political subjects just as unconditionally under 
the ruler's authority as the patrimonial subjects and to regard all powers 
as personal property, corresponding to the master's patriarchal power 
and property. On. the whole, the extent of the ruler's success depended 
upon the power constellation and, apart from his own military power, 
especially upon the mode and the impact of certain religious influences, 
as we will show later. Marginal cases in this respect were the New 
Kingdom in Egypt and the Ptolemaic empire, where the distinction be- 
tween royal coloni and free landowners, royal domains and other lands 
practically disappeared. 



7. The Patrimonial Satisfaction of Public Wants. Liturgy 
and Collective Responsibility. Compulsory 
Associations. 

The patrimonial satisfaction of public wants has its distinctive fea- 
tures as well as features which also occur in other forms of domination. 
The liturgical meeting of the ruler's political and economic needs is 
most highly developed in the patrimonial state. This mode of meeting, 
demands has different forms and effects. We are here interested in those 
consociations of the subjects which derive from liturgical methods. For 
the ruler liturgical methods mean that he secures the fulfillment of 
obligations through the creation of heteronomous and often hetero- 
cephalous associations held accountable for them. Just as the kinship 
group is answerable for crimes of its members, so these associations are 
liable for the obligations of all members. Among the Anglo-Saxons, 
for example, kinship groups were in fact the oldest units which 
the ruler held accountable. They guaranteed to him the obedience of 
their members. Similarly the villagers became collectively liable for the 
individual inhabitant's political and economic obligations. We saw 
earlier that this could result in the hereditary attachment of the peasants 
to the village; the individual's right to a share of the land could in this 
way turn into a duty to participate in the production of a yield, in the 
interest of the contributions owed to' the ruler. 

The most radical liturgical arrangement is the transfer to other vo- 



7 ] Patrimonial Satisfaction of Public Wants 102J 

cational groups of this hereditary attachment: thus corporations, guilds 
and other vocational groups established, legalized or made compulsory 
by the ruler become liable for specific services or contributions of their 
members. In compensation and especially because of his own interest in 
preserving the subjects' economic capacity, the ruler customarily grants 
a monopoly on the respective economic pursuits and ties die individual 
and his heirs to the association, both with respect to their persons and 
their property. The obligations may consist of contributions specific to 
the respective trade, for example, the production and maintenance of war 
materials, but they may also comprise other duties, for example, ordi- 
nary military contributions or tax payments. Sometimes it has been as- 
sumed that even the Indian castes were at least in part of liturgical 
origin, but at present there is no sufficient basis for this opinion. It is 
also very doubtful to what extent the use of the early medieval guilds 
for military, political and other contributions and their official establish- 
ment (Offiziai) was a really important factor in the very wide spreading 
of the guild system. In the Indian case the primary influence must 
definitely be ascribed to magic-religious and status differences as well 
as to racial ones; in that of the guilds voluntary association played the 
major role. But elsewhere the compulsory liturgical association has been 
common, and by no means only in patrimonial regime, although there 
it was often installed with the most radical thoroughness. For such 
regimes it is natural to view the subject as existing for the ruler and 
the satisfaction of his needs, and therefore also to consider the sig- 
nificance of his economic activities for corresponding liturgical capacities 
as his raison d'itre. Accordingly, liturgical methods of meeting public 
needs prevailed especially in the Orient: in Egypt and in parts of the 
Hellenistic world, and again in the late Roman and the Byzantine em- 
pire. With less consistency these methods were also applied in the Occi- 
dent and played a considerable role, for example, in English administra- 
tive history. Here liturgical bonds usually do not significantly fetter the 
person, but essentially affect his property, especially his landed property. ' 
However, they share with the Oriental liturgies the existence of a com- 
pulsory association guaranteeing collective liability for the obligations of 
the individuals, on the one hand, and a link, at least de facto, with a 
monopoly position on the other. 

One example is the guarantee of public peace and order called ni 
England the frankpledge: the compulsory collective liability of a group 
of neighbors for the law-abiding behavior and political compliance of 
every member. Tliis institution is found in East Asia CChina and Japan) 
as well as in England. For the sake of public order neighbors were or- 
ganized and registered in groups of five in Japan and of ten in China 



I O 2 4 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

and made collectively liable. The beginnings of such an organization 
existed in England already before the Norman period, which gready 
relied on such arrangements. Compulsory associations whose members 
vere collectively liable to criminal persecution were made responsible for 
the appearance of an accused in court, for giving information about guilt 
or innocence in criminal cases involving a neighbor — a function from 
which the institution of the jury developed — , for the appearance in 
court of "jurors," for providing the militia, for the military trinoda 
necessttas and later for the mpst diverse public burdens; these associa- 
tions were at least in part established specifically for these purposes, and 
landed property in particular was made liable [for the obligations im- 
posed]. The associations were penalized by the king fro falso iwlicio as 
well as for other violations of the public duties for which they were 
collectively liable. In turn, they held their members accountable per- 
sonally and with their property, and the political burdens were therefore 
quite regularly conceived to he linked to the most "real" kind of property, 
the individuals land. For these reasons the liturgical compulsory organi- 
zations later became the source of the English municipal associations 
and therefore of self-government, mainly in a twofold fashion: i) The 
internal apportionment of the obligations demanded by the ruler became 
their autonomous affair; 2) certain of their public duties which could 
be fulfilled only by propertied members were delegated to the latter 
and, by virtue of the resulting influence, became status rights of the 
propertied who proceeded to monopolize them. An example is the 
office of the justice of the peace. 

For the rest, every political obligation within patrimonial administra- 
tion had an inherent tendency to turn into an impersonal fixed obliga- 
tion to render contributions resting on concrete objects of wealth, 
especially on land and also on production shops and sales points. This 
was bound to happen when the liturgical collective duties did not 
hereditarily bind the individual at the same time that the "chargeable" 
objects remained or became alienable. For in this case the ruler had 
generally no choice but to depend for the fulfillment of his demands 
upon that which remained always visible and within his reach: "visible 
profitable property," as it was called in England, and that was primarily 
real estate. The ruler would have required a very extensive coercive 
apparatus in order to get hold, in each instance, of the persons who 
were under liability, and this difficulty exacdy was the reason for the 
system of compulsory associations upon which this task devolved. How- 
ever, these associations, too, faced the same difficulty if they were not 
aided by the coercive apparatus of the ruler. 

Thus a liturgical meeting of public needs could develop into two 



7 ] Patrimonial Satisfaction of Public Wants 1025 

very different structures; In one marginal case it could lead to local 
administration by largely independent honoratiores; this administration 
was connected with a system of specific obligations whose extent and 
manner were traditionally determined and which rested on specific 
property objects. On the other extreme a personal patrimonial depend- 
ence of all subjects could develop which tied the individual hereditarily 
to the land, the vocation, the guild and the compulsory association and 
which exposed the subjects to very arbitrary demands; these demands 
were advanced within highly unstable limits merely set by the ruler's 
concern for the subjects' permanent capacity to fulfill their obligations. 
The more technically developed the rulers own patrimonial position 
was, and especially his patrimonial military power on which he could 
rely also against his political subjects, the more easily the second type, 
total dependency, could prevail. The majority of these cases was naturally 
intermediate. We have already dealt with the significance of the ruler's 
military power, his patrimonial army. However, besides the army the 
coercive administrative apparatus available to the ruler was important 
for determining the size and quality of the enforceable demands. It was 
never possible or useful for the ruler, if he strove for an optimal personal 
power position, to turn all desired services into liturgies based on col- 
lective liability: he was always in need of a body of officials. 



8. Patrimonial Offices 

In the simplest case the prince's grfltfppraains comprise his own 
household, together with a complex of manorial dependencies to which 
the households of manorial peasants are attached. This already requires 
an organized administration and hence a suitable division of functions 
developing in proportion to its size; the latter is even more true of the 
attached political administration. In this fashion the ■patrimonial offices ' 
come into being. The crown offices which originated in the household 
administration are similar all over the wodd. Besides the house priest 
and sometimes the ruler's personal physician we find the supervisors of 
die various branches of the administration: the lord high steward for 
the food supplies and the kitchen; the butler or cupbearer for the wine 
cellar; the marshal (jconne'tahle: comes stabuli) for the stables; the 
Pronvogt for the peasants' compulsory services; the mtendant for cloth- 
ing and armor; the chamberlain for treasury and revenues; the seneschal 
for general administration. There were other supervisors for whatever 
branches resulted from the household's administrative needs. In a 
grotesque degree this differentiation was maintained at the Turkish court 



I O 2 6 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

up to this century. Any task transcending the immediate household op- 
erations was at first subsumed under that part of the household ad- 
ministration to which it .was most closely related. For example, the 
command over the cavalry was given to the supervisor of the stables, 
the marshal. All officials are charged, in addition to their administrative 
tasks proper, with attendance on the person of the ruler and with rep- 
resentational duties; in contrast to a bureaucratic administration, there is 
no professional specialization, but just like bureaucratic officials, the 
patrimonial officials usually develop into a status group set off from 
the ruled. The sordida munera and opera servilia of the manorial or 
personal dependents are everywhere differentiated, in late Antiquity as 
well as during the Middle Ages, From those higher, courtly, administra- 
tive services and liturgies which devolve upon the ministeriales and 
which, at least in the service of great lords, later come to be considered 
worthy also of a free man. 

The ruler recruits his officials in the beginning and foremost from 
those who are his subjects by virtue of personal dependence (slaves and 
serfs), for of their obedience he can be absolutely sure. A political ad- 
ministration, however, can rarely rely on them alone. The political rulers 
were 1 nearly always compelled to recruit their officials also in an ex- 
trapatrimonial fashion, not only because of the subjects' resentment 
when they saw unfree men rise above everybody else in power and 
status, but also because of the direct administrative needs and the con- 
tinuation of prepatrimonial forms of administration. On the other hand, 
free men derived such great advantages from serving a lord that they 
accepted the at first inevitable submission to the ruler's personal power. 
For wherever possible, the ruler insisted that officials of extrapatrimonial 
origin accept the same personal dependency as the officials recruited from 
unfree men. Throughout the Middle Ages the official bad to become 
familiaris [a household dependent] of the prince in patrimonial states 
proper (for example, also in the patrimonial state of the Angevins in 
Southern Italy, as the most knowledgeable person of this matter con- 
firmed to me). 2 The free men who became ministeriales in Germany 
surrendered their land to the lord and received it back from him as 
service land suitably enlarged. After the extensive debates on the origin 
. of the ministeriales it no longer seems doubtful today that they came at 
first from unfree strata, but it also seems certain that their rise as a 
status group was due to the massive influx of free men adhering to a 
knighdy style of life. Everywhere in the Occident, and especially in 
England, the ministeriales were absorbed as equals by the knighdy 
stratum. In practice this meant that their position was largely stereotyped 
and that therefore the lord's claims were firmly limited; once this had 



8 ] Patrimonial Offices 1027 

happened it stood to reason that the ruler could demand of them only 
services conventionally befitting a knightly status group and that m gen- 
eral he had to adhere to the proper status conventions in his relations 
with them. 

The position of the mintsteriales was further stereotyped when the 
ruler issued reglements and thus created a Dtenstrecht (service law) 
which turned them into members of a legally autonomous group (Rechts- 
genossen), as was the consequence of the medieval service laws. Sub- 
sequendy the group members monopolized the offices, established fixed 
rules and especially the requirement of their consent for the inclusion 
of new members into the corporate group, delimited services and fees 
and formed in every respect a closed status group, with which the ruler 
had to come to terms. Thereafter the ruler could no longer deprive such 
an official of his service fief, unless a judicial verdict directed its for- ■ 
feiture, and that means in the Occident a verdict of a court composed 
of mintsteriales. Finally, the officials' power reaches its apex when they 
or some of them, for example the highest-ranking court officials, demand 
that the ruler select his policy-making officials only according to their 
proposals or mandatory recommendation. Such attempts were occa- 
sionally made. However, in nearly all cases in which the rulers ad- 
visors successfully imposed their recommendation for the selection of 
his top officials, these advisors were not officials and especially not 
ministerudeSf but the congregated council of his great vassals or of the 
country's konoratiores; in particular, they were representatives of the 
Estates. According to the classic Chinese tradition, the ideal emperor 
appoints as his prime minister the person recommended as the most 
competent one by the great nobles at court, but it is unclear whether 
these are autonomous honoratiores and vassals or officials; it is certain : 
that of the English barons who raised the same demand repeatedly in 
the Middle Ages only a few were officials, and these did not raise it in 
their capacity as officials. 

Wherever possible the ruler attempts to avoid such monopolization 
of offices by status groups and such stereotyping of the administrative . 
services by appointing hereditary personal dependents or aliens who are 
completely dependent upon himv The more offices and official duties are 
stereotyped, the more natural is the lord's attempt to free himself from' 
such monopolies when new administrative tasks arise and new offices 
have to be created; in fact, this attempt was made especially at such 
occasions, sometimes successfully. However, the ruler is always con- 
fronted with the indignant opposition of the native aspirants to office 
and sometimes also of the subjects. Insofar as this is a struggle of the 
local honoratiores for the monopoly of local offices, it will be treated 



I 028 PATRIAHCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

later. But wherever the ruler creates typical and lucrative offices, he must 
face attempts at monopolization by certain strata, and it is a question of 
power to what extent he can resist these powerful interests. 

The monopolistic, legally autonomous sodality (Rechtsgenosserr 
schaft) of the ministerides and therefore also their sodalian association 
with the ruler was mainly a phenomenon of Occidental law. But traces 
of it can also be found elsewhere. In Japan, according to Rath gen, the 
han (i.e., "fence"), the community of the dmrnyo and his free antrus- 
Hones or ministeriales (samurai), was considered the holder of the sei- 
gneurial rights of which the lord could avail himself. However, the 
articulation of the sociality law was nowhere as consistent as in the 
Occident. 

The typification and monopolistic appropriation of the powers of 
office by the incumbents as members of such a legally autonomous so- 
dality created the estate-type of patrimonialism. 

The monopoly of the ministeriales on the court offices is an example 
of court prebends; an example in the political field is the monopoly of 
the members of the English bar on the offices of the bench. Examples in 
the history of church administration are the monopolies of the ulemas 
on the positions of the kadi, mufti and itrtdm and the numerous 
monopolies of similar Occidental graduates in the ecclesiastical prebends. 
But whereas in the Occident the typification of the positions of the 
ministeriales gave to the individual a relatively secure sodality right to 
the office specifically granted to him, this was by and large far less true 
of the Onem. There the offices were indeed highly stereotyped, but the , 
incumbent himself remained freely replaceable; as we shall see, this re- 
sulted rrom the absence of certain Occidental Estate, features and from 
the military power position of the Oriental ruler which had a different 
poliical and economic basis. 



9 . Patrimonial versus Bureaucratic Officialdom 

Patrimonial officialdom may develop bureaucratic features with in- 
creasing functional division and rationalization, especially with the ex- 
pansion of clerical tasks and of authority levels through which official 
business must pass. But the genuinely patrimonial office differs so- 
ciologically from the bureaucratic one the more distinctly, the more 
purely each type has been articulated. 

The patrimonial office laclcs above all the bureaucratic separation of 
the "private" and the "official" sphere. For the political administration, 



9 ] Patrimonial versus Bureaucratic Officialdom 1029 

too, is treated as a purely personal affair of the ruler, and political power 
is considered part of his personal property, which can be exploited by 
means of contributions and fees. His exercise of power is therefore en- 
tirely discretionary, at least insofar as it is not more or less limited by 
the ubiquitous intervention of sacred traditions. With the exception of 
traditionally stereotyped functions, hence in all political matters proper, 
the ruler's personal discretion delimits the jurisdiction of his officials. 
Jurisdiction is at first completely fluid — if we want to use this specifically 
bureaucratic concept here at all. Of course, each office has some sub- 
stantive purpose and task, but its boundaries are frequently indetermi" 
nate. Originally, however, other officials do not differ on this score from 
patrimonial officials. At first, only competing powers create stereotyped 
boundaries and something akin to "established jurisdictions." However, 
in the case of the patrimonial officials this derives from the treatment 
of the office as a personal right and not, as in the bureaucratic state, 
from impersonal interests — occupational specialization and the endeavor 
to provide legal guarantees for the ruled. Therefore this quasi-jurisdic- 
tional limitation of the powers of office results primarily from the com- 
peting economic interests of the various patrimonial officials. Insofar as 
sacred tradition does not prescribe certain official acts, they are dis- 
cretionary, and hence the lord and his officials demand a compensation 
in each case, either arbitrarily or according to established rates. Thus 
the distribution of these sources of income provides a strong incentive 
for the gradual delimitation of administrative jurisdictions, which was 
at first almost non-existent in the political sphere of the patrimonial 
state. To protect their fees the English lawyers, for example, insisted 
upon the appointment of judges exclusively from their midst and upon 
admission to their own ranks exclusively of apprentices trained in law 
offices. In contrast to other countries-,, the university graduates trained 
in Roman law were thus excluded. This also prevented the reception of 
Roman law. For the sake of fees the secular courts fought with the 
ecclesiastic ones, the common-law courts with the chancellery courts, 
and the three great courts — Exchequer, Common Pleas, King's Bench 
■ — with one another and all other courts. Jurisdiction was determined 
most of the time by compromises among those interested in taking fees, 
not primarily and never solely by rational considerations. Since jurisdic- 
tions often overlapped the courts competed with one another, for the 
favor of the clients by resorting to various incentives, in particular con- 
venient procedural fictions, lower fees, etc. 

However, this example refers to offices that were already perpetuated- 
and typified, a condition which even in large and permanent political 
structures developed only gradually. In the beginning we find as a rule 



IO3O PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

the ad hoc official whose powers are defined by a concrete purpose and 
whose selection is based on personal trust, not on technical qualifica- 
tion- Wherever the administration of a large political realm is patri- 
monial, every attempt at identifying "jurisdictions" is lost in a maze of 
official titles whose meaning seems to change quite arbitrarily; witness 
Assyria even during the period of its greatest expansion. When the 
ruler's political operations are appended to his purely economic con- 
cerns, they appear as auxiliary resources which are used merely accord- 
ing to need and opportunity: The political administration is at first in- 
termittent, entrusted to that person — most of the time a court official or 
table companion — who in the concrete case appears to be the most quali- 
fied and, above all, nearest to the ruler. For the personal discretion and 
the favor or disfavor of the ruler are decisive as a matter of principle 
and not just as a matter of fact, as of course it does happen everywhere. 
This also applies to the relation between the ruled and the officials. The 
latter are permitted to do whatever is compatible with the power of 
tradition and the ruler's interest in the preservation of the subjects' com- 
pliance and economic capacity to support him. Absent are the binding 
norms and regulations of the bureaucratic administration. Decisions are 
made ad hoc not only in areas of novel or significant problems, but 
throughout the realm of the ruler's powers, insofar as these are not 
curbed by well-established rights of individuals. Hence the exercise of 
the ruler's powers by the officials proceeds in two often unrelated areas: 
one in which it is limited by obligatory and sacred tradition or definite 
individual rights, and one in which the ruler's personal discretion pre- 
vails. This may create conflicts for the officials. A violation of the old 
customs may be an offense to perhaps dangerous forces, whereas dis- 
obedience to the ruler's orders is a criminal disregard of his powers of 
injunction (Banngewali) and subjects the violator, in the terminology 
of English law, to the ruler's misericordia: his right to impose arbitrary 
sanctions. The conflict between tradition and the ruler's judicial rights 
(Herrenhann) is everywhere irreconcilable wherever they overlap. Long 
after the powers of political offices have been standardized within fixed 
territorial jurisdictions, as for the English sheriff of the Norman period, 
the ruler suspends, exempts and redresses in principle according to his 
own discretions. 

In contrast to bureaucracy, therefore, the position of the patrimonial 
official derives from his purely personal submission to the ruler, and his 
position vis-a-vis the subjects is merely the external aspect of this relation. 
Even when the political official is not a personal household dependent, 
the ruler demands unconditional administrative compliance. For the 
patrimonial official's loyalty to his office (^Amtstreue) is not an im- 



9 ] Patrimonial versus Bureaucratic Officialdom 1031 

personal commitment (Dtensttreue) to impersonal tasks which define its 
extent and its content, it is rather a servant's loyalty based on a strictly 
1 personal relationship to the ruler and on an obligation of fealty which 
in principle permits no limitation. In the Germanic kingdoms the king 
threatens even free officials with disfavor, with blinding and death in the 
case of disobedience. However, in relation to other persons the official 
partakes in the ruler's dignity because and insofar as he is personally 
subject to the ruler's authority (Herrengewalt). In the Germanic king- 
doms only the royal official has increased Wergild, irrespective of status, 
but not the free judged the folk community (Volhrickter'), and every- 
where the servile official, although he is not a free man, easily rises above 
the free subjects. All patrimonial service regulations, which would be 
reglements according to our [bureaucratic] notions, are ultimately noth- 
ing but purely subjective rights and privileges of individuals deriving 
from the ruler's grant or favor, in fact, this can be said for the entire 
system of public norms of the patrimonial state in general. It lacks the 
objective norms of the bureaucratic state and its "matter-of-factness," 
which is oriented toward impersonal purposes'. The office and the exer- 
cise of public authority serve the ruler and the official on which the 
office was bestowed, they do not serve impersonal purposes. 



10. The Maintenance of Patrimonial Officials. Benefices 
in Kind and Fees 

Originally the patrimonial officials are t)picaliy maintained at the 
ruler's table and From his supplies, as is every other household member. 
As a basic component of the household, commensality gained far-reach- 
ing symbolic significance and extended far beyond its boundaries, a 
development in which we ^ t e here not interested. At any rate, patri- 
monial officials, especially their highest ranks, retained for a long time 
the right to be fed at die lord's table when they were present at court, 
even if the ruler's table had long ceased ic be important for their 
maintenance. 

When the patrimonial official leaves this intimate community, die 
result is naturally 3 diminution of the rulers direct conf.ro]. The ruler 
could indeed make the official's economic compensation completely de- 
pendent upon his discretion and thus put the official in a precarious 
position, but this was not feasible in a relatively large apparatus and it 
was dangerous for the ruler to violate regulations once they had been 
established. The maintenance in "the ruler's household was therefore 
succeeded very early by the granting of benefices or fiefs to patrimonial 



I O 3 2 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

officials who had their own household. We will deal first with the bene- 
fice. This important institution, which as a rule also implies a definite 
"right to the office" and thus its appropriation, has had the most diverse 
fates. At first, the benefice was, as in Egypt, Assyria and China, an 
allowance in kind from the depots and granaries of the ruler (king or 
god), as a rule for life. For example, when the commensality of the 
temple priests was dissolved in the ancient Orient ah allowance in kind 
provided by the temple granary was introduced. Later these allowances 
became alienable and were negotiable even in fractions (for example, 
for single days of each month); thus they were something like fore- 
runners, at the stage of natural economy, of modern government bonds. 
We shall call this type benefices in hind CDejmtat'pfTunde'), 

The second type is the fee benefice (Sfortetyfrunde^): the assign- 
ment of certain fees which the ruler or his representative can expect 
for official acts. This type of benefice removes the official even further 
from the ruler's household, because it is based on revenues of a relatively 
extrapatrimonial origin. Already in Antiquity this kind of benefice was 
subject to purely commercial transactions. A large part of those priestly 
positions, for example, which had the character of an "office" (and not 
of a free profession or, conversely, of a family's hereditary possession) 
were publicly sold in the ancient polis. It is not known to what extent 
the trading of benefices was practiced in Egypt and the ancient Orient. 
But in view of the prevailing interpretation of the office as a "living" 
such a development would have been natural in those areas. 

Finally, the benefice could also take the form of a landed benefice 
assigning office or service land (Amts- oder Dtenstland) for the in- 
cumbent's own use. This approximates the fief and gives the benefice- 
holder greater autonomy from the lord. The lord's officials and thegns 
by no means always welcomed the separation from his table community 
since this imposed upon them economic risks and the burden of a house- 
hold. But their desire to found a family and to be independent pre- 
dominated. On the lord's part it became necessary to unburden his pwn 
household, since with the growing number of table companions expendi- 
tures increased tremendously and beyond the point of control; at the 
same time the household remained exposed to the vicissitudes of income 
fluctuation. It was clear, however, that in the case of a secular official 
who had a family the separation immediately resulted in a drive for 
hereditary instead of merely lifelong appropriation of the benefice. In- 
sofar as the fief is concerned, we will be treating this process in another 
context. 

The appropriation of benefices took place especially in the" early 
period of the modern patrimonial-bureaucratic state. This process oc- 



io } Maintenance of Officials: In-Kind Benefices & Fees 1033 

curred everywhere, most strongly in the papal Curia, in Fiance, to a 
lesser extent in England, because there a smaller number of officials was 
involved. At stake were primarily fee benefices, which were either be- 
stowed upon intimates or favorites with the permission to hire a more 
or less proletarian deputy who did the real work, or they were given to 
interested persons on a fixed lease or for a lump sum. In this way the 
benefice became a patrimonial possession of the leaseholder or pur- 
chaser, and we can observe the most diverse arrangements, including 
hereditability and alienability. To begin with, the official may give up 
his benefice for a compensation paid by the interested person, while 
claiming the right vis-a-vis the ruler to propose the successor for the 
position which is his by virtue of purchase or rental. Alternatively, a 
body of officials, for example, the collegiate body of a court, may claim 
the right of making such proposals and then proceed in the common 
interest of the colleagues to set the conditions for transferring the bene- 
fice to an outsider. The lord, of course, wanted to participate in one 
way or another in the profits of such a transfer since he had granted the 
benefice^ and originally never for life. Accordingly he, too, sought to 
establish guidelines for such transfers. The results gready differed from 
case to case. For the Curia and the princes the trading of offices — that 
means, the capitalization of fee incomes through the massive creation of 
fee benefices in the form of sinecures — became a financial operation 
which was most important for the coverage of their extraordinary needs. 
In the Papal States the wealth of the nepotes derives to a significant 
extent from the exploitation of fee benefices. 

In France the de facto hereditability and the trade of benefices began 
with the farhments — the highest court authorities — and subsequently 
encompassed all ranks of financial and administrative officialdom, in- 
cluding the -prevdis and bailiis. When an official resigned, he sold his 
benefice to a successor. The heirs of a deceased official claimed the 
same right (sunnvance), since the office had become a property object. 
After several abortive attempts at abolishing this practice, the royal 
treasury began to share in the deal, from 1567 on, by receiving a fixed 
fee from the successor {droit de resignation). In 1604 the whole prac- 
tice was systematized in the form of the paulette, so called after its 
inventor Charles Paulet. The survivance was affirmed, but the Crown's 
droit de resignation was sharply reduced; irrits stead the office-holder was 
obliged to pay to the Crown annually orie and two thirds percent of 
the purchase price, and the revenues were in turn annually leased by 
the Crown (first to Paulet). The purchase price of the benefices went 
up as income opportunities improved, and this again meant higher gains 
for the leaseholder and the Crown. However, this office appropriation 



I O 3 4 PATRIARCHAL AND PATRIMONIAL DOMINATION f Ch. Xll 

made it virtually impossible to dismiss officials (especially the members 
of the fartetnents). For an official could he dismissed only if the Crown 
refunded the purchase price of the benefice, a step which it was hesitant 
to take. It was only on August 4, 1789 that the Revolution eradicated 
office appropriation, and even then it had to pay a compensation of 
more than one-third of a billion livres. If the king tried to impose his 
will upon the forlements, he could be thwarted in case of need by a 
general strike — mass resignation which would have forced him to pay 
hack the total purchase value of all benefices; this happened repeatedly 
before the Revolution. 

Appropriated benefices were one of the mainstays of the noblesse 
de robe, that important status group in France which formed the leader- 
ship of the tiers etat against the king and the landowning or court 
aristocracy. — 

* By and large the Christian clergy in the Middle Ages was main- 
tained through endowment with land or fee benefices. Originally the 
church had been supported by the offerings of the community — ever 
since it had become necessary to make economic provisions for the 
maintenance of the religious services by forming a "profession"; and this 
in turn had made the professional clergy completely dependent on the 
bishops, who disposed of the offerings. This was the normal state of 
affairs in the old church of the cities, which were then the bearers of 
Christianity. If we disregard some other peculiarities, the church was a 
patriarchally modified bureaucracy. But in the Occident the urban char- 
acter of religion eventually disappeared and Christianity spread into the 
countryside, which was stili,deep in the natural economy. Some of the 
bishops gave up their urban residence, especially in the North. Many 
of the churches were secularly owned (Eigenkitcheri), either by the 
peasant community or the manorial lord, and the clergymen frequently 
became the latter s dependents. Even if the secular builders and patrons 
used the more considerate form of endowing the church with fixed rents 
or with glebe, they would claim the right of appointing and even of re- 
moving the priest; this naturally resulted in a fundamental weakening 
of the bishop's authority and also in a significant decrease of the clergy's 
religious interests. As early as during the, Frankish kingdom the bishops 
attempted, most of the rime unsuccessfully, to prevent the predominance 
of benefices by establishing communal living at least for the clergy of the 
chapter. Time and again the monastic reform movement had to fight 
against the displacement of monastic communism by a phenomenon 
typical of the Eastern church: The transformation of the monks into 
benefice-holders, who often lived outside the monastery, and of the 
monasteries themselves into "social security" agencies for the nobility. 



io ] Maintenance of Officials: In-Kind Benefices & Fees 1035 

The bishops could not prevent the prebendalization of clerical positions. 
The bishoprics of the North, especially those in which the bishop main- 
tained his urban residence, were very large and required subdivision; this 
contrasts with the South where each of the numerous cities had its own 
bishop. Since many churches and their revenue sources were privately 
controlled, the bishop could not treat them as his free office property, 
even if otherwise the canonical conditions were gradually introduced. 
The benefice was created simultaneously with the parish; only some- 
times was it conferred by the bishop. In the European mission territories 
the benefices and the corresponding property were provided by powerful 
secular founders who wanted to retain control over most landed prop- 
erty. The same can be said of the position of the bishops, even in face 
of the claim to supremacy of the papal power; they were at first appointed 
almost at will by the secular rulers who were both accepting and regulat- 
ing the church, and as trusted advisers they were endowed with political 
rights. Thus the development of the church hierarchy veered toward 
decentralization, and at the same time also toward appropriation of pa- 
tronage by the secular rulers, whose ptebendal house priests or feudal 
vassals the church officials tended to become. 

By no means only feudal princes were eager to have the learned and 
literate clergy, cut off from family ties, as cheap and qualified man- 
power in whose hands the hereditary appropriation of offices need not 
be feared. The Venetian overseas administration, for instance, lay in 
the hands of churches and monasteries up to the conflict about lay in- 
vestiture. This conflict marked an important phase in the establishment 
of the urban bureaucracy, since the subsequent separation of church 
and state abolished the clerics' oath of allegiance to the doge as well 
as the electoral initiative, supervision, affirmation and investiture on his 
part. Up to that time the churches and monasteries directly leased and 
administered the colonies or were the de facto center of a settlement in 
their role as domestic arbitrators and diplomatic representatives of 
Venetian interests. 

The German imperial administration of the Sslic emperors and their 
political power were rooted primarily in the disposition over church 
property and especially in the obedience of the bishops. The familiar 
reaction of the Gregorian epoch was directed against the utilization of 
the clerical benefice for secular ends. The success of this reaction was 
considerable, but within very narrow limits. The popes increasingly 
seized control over the disposition of vacant benefices, a development 
vhich reached its pea 1c at the beginning of the i^th century. 

The benefice became one of the issues in the cultural conflict 
Kulturkam-pf) between church arid secu'ar power of the 14th and 15th 



I O 3 6 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Cfe. XII 

century. For throughout the Middle Ages the clerical benefice was the 
basic resource serving the purpose of "high culture" (jGeisteskultur). 
Especially in the later Middle Ages, up to the Reformation and Counter- 
Reformation, the benefice developed into the material foundation of that 
class which was then the bearer of "high culture/' By endowing the 
universities with the disposal over benefices the popes made possible the 
rise of that medieval stratum of intellectuals which, apart from the 
monks, had the most significant share in the preservation and develop- 
ment of scientific work; the sa^ie end was served by the multitude of 
benefices which they bestowed upon personal favorites, among whom 
were many scholars, relieving them of official duties. At the same time, 
however, by flatly ignoring national differences in their bestowal of 
benefices, the popes provoked that violent nationalist resistance of the 
intellectuals, especially of the Northern countries against Rome, which 
became such an important feature of the conciliar movement. 

Moreover, kings and barons continued in": spite of the canonical 
injunctions to seize control over the clerical benefices. On a very large 
scale this was done by the English kings since the 13th century, pri- 
marily for the purpose of securing cheap and reliable manpower. The 
employment of clerics also freed them from dependence upon the min- 
isteriales whose services were linked to hereditarily appropriated service 
land and had become stereotyped and useless for a rational central ad- 
ministration. A celibate cleric was cheaper than an official who had to 
support a family, and he would not be tempted to strive for the heredi- 
tary appropriation of his benefice. By virtue of his power over the churchy 
which had a very concrete meaning in this instance, the king provided 
the clerics with pensions (ccUafio) from church property. Clerics came 
to replace the older type of official on such a large scale that even today 
we are reminded of it by the name for office personnel: clerks. The great 
barons were powerful enough to secure control over a large number of 
benefices or to force the king into disposing of them according to their 
wishes. The trading in benefices (brocage) became very extensive. 
Hence the ever-changing coalitions of the participants, Curia, king and 
barons, in the struggle over benefices during the period of the conciliar 
movement. At one time king and parliament opposed the pope in order 
to monopolize the benefices for domestic owners and candidates, at an- 
other king and pope joined forces to their mutual advantage at the 
expense of the native interests. The prebendal nature of the clerical 
offices as such was not changed by the pope. Not even the Tfideritine 
reform could change the prebendal character of the mass of clerical 
positions, especially of the regular parochial clergy who maintained a 
limited, but effective "right to the office." The secularizations of modern 



io ] Maintenance of Officials: In-Kind Benefices & Fees 1037 

times fixed this prebendal character even more when the economic 
maintenance of the church and its officials was transferred to the state 
budget. Only the modern struggles between secular states and the 
church, and especially the separation of church and state, provided the 
[Catholic] hierarchy with the opportunity to abolish the "right to the 
office" all over the world after supplanting the prebendal system with 
one in which the clerical officials are ad nutum [at will] removable; this 
most important shift in the church constitution has occurred almost 
unnoticed. 

The trading in benefices is essentially limited to the fee benefice 
and thus a product of the advancing money economy. An increase in 
the importance of cash fees and a growing tendency to invest wealth 
in the sources of fee incomes presuppose the formation of monetary 
wealth. Other epochs did not experience an expansion in the trading in 
benefices of the kind and volume observable in late medieval and espe- 
cially early modem history, from the 1 6th to the 18th century. But 
similar developments were widespread. We have already mentioned 
quite significant beginnings in Antiquity. In China the office benefice 
was not appropriated because of the peculiar organization of offices, 
which we will discuss later, and therefore it never became legally 
marketable. However, in China too an office could most of the time be 
obtained only with the aid of money — in the form of a bribe. Although 
we cannot say this of legalized trading in benefices, the benefice itself 
is a universal phenomenon. The obtainment of a benefice is the goal of 
education and the purpose of the academic or other degrees in China 
and in the Orient, just as in the Occident. This is very clearly brought 
out by the fact that the characteristic punishment for political deviation 
in China is the suspension of examinations in a province and thus the 
temporary exclusion of its intellectuals from office benefices. The tend- 
ency toward the appropriation of benefices is also universal, although 
results vary. Especially the self-interest of the qualified aspirants is often 
an effective counterweight to appropriation. The benefice of the Islamic 
itlemas, that means, of the status group of examined aspirants for the 
offices of the kadi (judge), mufti (ecclesiastic jurists responding through 
fetwa) and imdm (priest), was often granted for only a short time (one 
to one and a half years), in order to facilitate its circulation among the 
aspirants and in order not to impair the esprit de corps in favor of desires 
for appropriation on the part of the individual. 

In addition to his continuous normal income: allowances in kind,. 
sometimes landrent and fees, the patrimonial official receives irregular 
gifts from his lord in the case of special merit or the latter's good mood 
Their source is the lord's thesaurus, hoard, treasure: stocks of precious 



IO38 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck. XII 

metals, jewelry and arms, and sometimes his stud. Precious metals are 
particularly important. Since the good will of the officials depended on 
the possibility that their merits would be rewarded, the possession of a 
treasure was everywhere the indispensable basis of patrimonial domina- 
tion. In the argot of scaldic poetry the king is called the "breaker of 
rings" (.Ringebrecker). The seizure or loss of the hoard often decided 
wars between pretenders, for in a predominandy natural economy a 
treasure of precious metals has paramount importance. We will deal 
later with the economic relations which are determined by this fact. 



1 1 . Decentralized and Typified Administration As a 
Consequence of Appropriation and Monopolization 

In a patrimonial state every prebendal decentralization of the ad- 
ministration, every jurisdictional delimitation caused by the distribution 
of sources of fee incomes among competitors, and even more so every 
appropriation of benefices signifies not rationalization but typxfication. 
In particular the appropriation of the benefice, which made the officials 
— as we have seen — often practically irremovable, can have the same 
effect as the modern legal guarantee of judicial "independence," al- 
though its meaning is completely different; its aim is the protection of 
the official's right to his office, while modern civil service law endeavors 
to insure the official's impartiality in the interest of the ruled through 
"independence," that means, through his irremovability unless he has 
been properly tried and convicted. 

The officials who had legally or factually appropriated the benefices 
could very effectively curtail the ruler's governmental power; above all 
they could vitiate any attempt at rationalizing the administration 
through the introduction of a well-disciplined bureaucracy and preserve 
the traditionalist stereotyped separation of political powers. The French 
parlements,. collegiate bodies of benefice-holders, in whose hands were 
the formal legalization and partly also the execution of royal orders, 
checked the king's power for centuries and blocked all innovations 
which would have been detrimental to their traditional rights. It is true 
that here, too, the patrimonial norm was accepted in principle: An 
official must not contradict his ruler. When the king personally appeared 
in the midst of these assemblies of office beneficiaries (lit de justice}, 
he could formally insist On the legalization of any order, for in his 
presence every opposition had to cease, and he tried to achieve the same 
effect through direct written directives Qettre de justice). But by virtue 
of their property rights to the office, the -parlements, through reman- 



1 1 ] Decentralized and Stereotyped Administration 1039 

trance, often questioned immediately afterwards , the validity of the 
decree which ran counter to tradition, and frequently vindicated their 
claim to be independent bearers of authority. The effectiveness of the 
appropriation of benefices which was at the roots of this situation was of 
course variable and depended upon the power distribution between 
benefice-holder and ruler, especially upon the availability to the latter of 
financial means for redeeming the appropriated rights of the benefice 
holders and for replacing them with a completely dependent bureauc- 
racy. As late as 1771 Louis XV attempted through a coup d'etat to de- 
stroy the preferred weapon of the benefice-holders in the parhments, the 
"general strike" in the form of a mass resignation, which was designed 
to enforce the king's retreat since he could not afford to remit the pur- 
chase price of the offices. In this case the officials' resignation was ac- 
cepted, but the purchase price was not paid back, the officials were 
detained for disobedience, the parliaments were dissolved, new agencies 
were created in their place, and the appropriation of offices was abol- 
ished. But this attempt at establishing discretionary patrimonialism, 
under which the ruler could freely remove officials, failed. In 1 774 
Louis XVI retracted the decrees in view of the stormy opposition of the 
vested interests, the old conflicts between king and parliament were 
revived, and only the summoning of the Estates General in 1789 created 
a completely new situation which very soon obliterated the issue of the 
privileges of the two antagonistic forces: monarchy and administrative 
benefice-holders, 

A special situation, which we will later casuistically analyze in 
greater detail, obtained for those officials through which the ruler 
directed the local districts, which were originally formed out of the 
ancient folk court districts QDingoerhande) and sometimes also out of 
individual great domains. Here, too, the frequent appropriation of 
benefices through purchase led to typificatjon and the splitting off of 
autonomous powers from the ruler's authority; this happened especially 
in France. In addition, however, a decentralizing and stereotyping 
influence was exerted here by the necessity to pay heed to the general 
conditions under which an official could hold such an exposed position, 
far removed from the ruler's personal authority. A mere official who 
was completely — economically and socially — dependent upon the ruler's 
favor could gain personal authority only under very conducive condi- 
tions. In general at least, this was permanently possible only on the 
basis of a precisely functioning rational apparatus such as modern bu- 
reaucracy with its economic and technical preconditions, because in such 
a system specialized knowledge does itself create the. necessary power. 
Under the general conditions of patrimonialism, however, and thus of 



I04O PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck. Xll 

an administration which requires "experience" and at most concrete 
skills (such as writing), but not rational specialized knowledge, the posi- 
tion of the local official was determined by the weight of his own 
social prestige (Autoritiii) within his local district; everywhere this 
prestige was mainly based on a capacity to maintain the style of life 
appropriate to a status group of notables. Therefore, the property- 
owning, especially the land-owning stratum of the subjects can easily 
monopolize the local offices. We will soon deal with this in detail. Only 
a ruler with the specific gifts necessary to maintain a strongly auto- 
cratic government can impose the opposite principle: rule through 
property-less persons who are economically and socially completely , 
dependent upon him. This can be done only in a continuous struggle 
with the local honoratiores, which pervades the history of the patrimo- 
nial state. The office-holding honoratiores, who form a cohesive interest 
group, usually gain the upper band in the long run. Not only in the 
Merovingian kingdom, but all over the world officials time and again 
extracted from a lord who urgendy needed their support the promise 
that he will keep them in office for life and their children after them. — 

As the appropriation of offices progresses the ruler's power, espe- 
cially his political power, disintegrates into a bundle of powers sepa- 
rately appropriated by various individuals by virtue of special privileges 
— rights which are most variously aerined but which, once the defini- 
tion has become established, cannot be altered by the ruler without 
arousing dangerous resistance from the vested interests. This structure 
is rigid, not adaptable to new tasks, not amenable to abstract regulation} 
and thus a characteristic contrast to bureaucracy with its spheres of juris- 
diction, which have a purposively abstract organization and can be reorgan- 
ized at any time if need be. In juxtaposition to this stands the completely 
discretionary power of the lord in areas in which this appropriation of 
offices has not occurred, permitting him to appoint, his personal favorites 
especially to administrative tasks and power positions which are not 
pre-empted by appropriated powers. The patrimonial state as a whole 
may tend more toward the stereotyped or more toward the arbitrary 
pattern. The former can be more frequendy found in the Occident, 
the latter to a large extent in the Orient, where the theocratic and 
patrimonial-military foundations of power, often usurped by new con- 
querors, counteracted quite effectively the otherwise natural process 
of decentralization and appropriation. 

In the course of this typification the old court officials became 
purely representative dignitaries and benefice-holding sinecurists; this 
was especially true of the officials of the most powerful lords, who 



1 1 ] - Decentralized and Stereotyped Administration i o 4 i 

chose no longer unfree men as court officials but nobles who naturally 
declined to handle routine tasks. 

The more appropriation takes place, the less does the patrimonial 
state operate either aacording to the concept of jurisdiction or to that 
of the "agency" in t%r$QHtemporary sense. The separation of official 
and private matters, of official and private property and powers was 
carried through more or less only in the arbitrary type of patrimonialisrn; 
the separation disappeared with increasing prebendalization and ap- 
propriation. It is true that the medieval church tried to prevent the 
free disposition over benefice revenues at least for the case of the pre- 
bendary's death, and that the secular power at times extended its ius 
spolii also to the private estate of a deceased clergyman, but in the case 
of full appropriation official and private property practically coincide. 

In general the notion of an objectively defined official duty is un- 
known to the office that is based upon purely personal relations of 
subordination. Whatever traces of it there are disappear altogether with 
the treatment of the office as benefice or property. The exercise of 
ppwer is primarily a personal right of the official: outside of the sacred 
boundaries of tradition he makes ad hoc decisions, just like the lord, 
according to his personal discretion. Hence a typical feature of the 
patrimonial state in the sphere of law-making is the juxtaposition of 
inviolable traditional prescription and completely arbitrary decision- "'■ \ 
making (Kabinettsjustiz), the latter serving as a substitute for a regime j 
of rational rules. Instead of bureaucratic impartiality and of the idealt-r> -:']f, 
based on the abstract validity of one objective law for all — of admin-^i 
istrating without respect of persons, the opposite principle prevails. S 
Practically everything depends explicitly upon the personal considera~fe;l* 
dons: upon the attitude toward the concrete applicant and his concrete ^ 
request and upon purely personal connections, favors, promises and 
privileges. Even the privileges and appropriations granted by the lord 
— including especially land grants, however "definitive" the grant — 
are very often revocable in the case of very vaguely defined "ingratitude"; 
their validity beyond the grantor's death is also uncertain because of 
the personal quality of all relationships. These grants are therefore sub- 
mitted to the successor for confirmation. Depending upon the always 
unstable distribution of power between lord and officials, confirmation 
may be considered the ruler's obligation and thus pave the way from 
revocability to permanent appropriation as a well-deserved privilege, but 
it may also be an occasion for the successor to enlarge his own realm - 
of discretion by cashiering such special rights; this last means has htm ': "* 
repeatedly applied in modern times during the rise of the Ocddeittitf ' 
patrimonial-bureaucratic state. 



IO4I PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck. XU 

Even where the rights of the officials in their relationship to the 
ruler and also the ruler's powers over them have been stereotyped by 
means of sodality rights (Genossenrechte) and office appropriation, 
their de facto exercise remains decisive for their relative strength; there- 
fore every accidental weakness of the central authority lasting any 
length of time and perhaps due solely to personal factors will lead to a 
diminution of its power through the rise of new conventions detrimental 
to it. Hence, in. such an administrative structure the ruler's purely 
personal ability to assert his will is to a very high degree decisive for 
the always unstable content of his nominal power. The Middle Ages 
have to this extent rightly been called the "age of individualities." — 



1 2. Defenses of the Patrimonial State Against 
Disintegration 

The ruler endeavors to safeguard the integrity of his domination in 
various ways and to protect it against the appropriation of offices by 
the officials and their heirs as well as against other means by which 
officials can gain independent powers. To begin with, he may regularly 
travel through his realm. In particular the German monarchs of the 
Middle Ages moved about almost constantly, and not merely because 
inadequate transportation compelled them to consume on the spot the 
supplies provided by the various domains. This motive was not neces- 
sarily dominant: The English and the French Icings as well as their 
central agencies — and the latter is the important point — had a fixed 
residence quite early, even though, as the phrase ubicumqtte fuerimus 
in Anglis ["wherever we shall be in England"] indicates, de iure it be- 
came fixed only gradually; the same was true of the Persian kings. The 
decisive fact was that only their continually renewed personal presence 
maintained their authority over the subjects. As a rule, the ruler's per- 
sonal traveling was supplemented or supplanted by the "missatic" sys- 
tem: the systematic circling through the land of officials with special 
powers — the Carolingian missi dominici, the English circuit-court 
judges — , who periodically held popular assemblies for purposes of 
adjudication and for handling complaints. ^ < — ... 

Furthermore, the ruler insisted upon various personal guarantees 
from officials appointed to outside positions where they were not under 
permanent observation. In the crudest form this amounted to a demand 
for hostages. More subtle means were the following: a) duty of regular 
attendance at court; for example, the Japanese daimyos had to reside 



12 ] _ Defenses Against Disintegration 1043 

every other year at the court of the Shogun and to leave their families 
permanently there; b) compulsory court service for the sons of officials 
— the corps of pages; c) appointment of relatives or in-laws to important 
positions — a very dubious means, as we have pointed out; d) brief 
tenures in office; this was true originally of the Frankish courts and 
also of many Islamic benefices; e) exclusion of officials from districts 
in which they had landed property and relatives, as in China; f) the 
greatest possible use of celibates for certain important positions — this 
does not only explain the great importance of celibacy for the bureau- 
cratization of the church, but above all also the use of clerics in the 
royal administration, especially in England; g) systematic surveillance 
of the officials through spies or official controllers, such as the Chinese 
"censors," who were usually recruited from personal dependents of the 
ruler or from impecunious benefice-holders; h) creation of a competing 
office in the same district, as for example that of the coroner which was 
set up against the sheriff. A universal means of assuring loyalty was 
the use of officials who did not come from socially privileged strata, or 
even were foreigners, and who therefore did not possess any social 
power and honor of their own but were entirely dependent for these on 
the lord. The interests of the ruler were the same: when Claudius 
intimidated the senatorial nobility with the threat to rule the empire, 
in disregard of the Augustean status regulations, solely with the assist- 
ance of his clientele of freedmen, when Septimius Severus and his suc- 
cessors appointed as officers common soldiers of their armies instead 
of Roman nobles, or when Oriental Grand Viziers as well as the numerous 
court favorites of modern history, especially the technically most success- 
ful agents and hence those most hated by the aristocracy, were so very 
frequently raised to their posts from complete obscurity. 

Among the devices used to maintain the control of the ruler's cen- 
tral administration over the local officials the splitting up of spheres of 
jurisdiction became very important to the development of administrative 
law. This subdivision occurred either in the form that the finance ad- 
ministration alone was entrusted to special officials or that civilian and 
military officials were juxtaposed to one another in every administrative 
district, a solution also suggested by technical considerations. The mili- 
tary official then had to rely for procurement upon the civilian ad- 
ministration which was independent from him, and the latter in turn 
needed the military official's co-operation for maintaining its power. It 
seems that already the Phaiaonic administration of the New Kingdom 
separated the magazine administration from the military command, and 
this too was probably a technical necessity. In the Hellenistic period, 
especially under the Ptolemies, the introduction and bureaucratization 



I O 4 4 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck, XII 

of tax-farming made it possible for the ruler to retain financial control 
separate from the military command. During the Prindpate the Roman 
administration — excepting certain areas such as Egypt and some frontier 
provinces, where this was not done for political reasons — appointed an 
autonomous imperial procur&tor of finance who served as the second- 
highest provincial official next to the imperial commander or the sena- 
torial governor, and it created separate career channels for the two ad- 
ministrations. The reorganization under Diocletian divided the whole 
imperial administration into civilian and military branches, from the 
ftraefecti fraetorio~&s imperial chancellors and the magstri mititum as 
imperial commanders down to the praesides, on the one hand, and the 
duces on the other. In later periods of Oriental history, especially under 
the Islam, the separation of the office of the military commander 
(emir) from that of the tax collector and tax farmer (famil) became 
a firm principle of all strong governments. It has been pointed out cor- 
rectly that nearly every case of a permanent merger of these two juris- 
dictions, that means, the fusion of the military and economic power 
of an administrative district in the hands of one person, soon tended to 
encourage the administrator's disengagement from the central author- 
ity. The increasing militarization of the Islamic realm during the period 
of slave armies with its mounting demands upon the subjects' tax 
capacities; the recurrent financial collapse and the mortgaging or seizure 
of the tax administration by the troops, ended naturally either in the 
disintegration of the empire or in the^ rise of the benefice system. 

Some historically important examples may illustrate the functioning 
of patrimonial administrations and especially the means with which the 
ruler attempts to preserve his power vis-a-vis the tendencies toward 
appropriation on the part of the officials. 



13. Ancient Egypt 

The first consistent patrimonial-bureaucratic administration known 
to us existed in ancient Egypt. It seems that originally it was solely 
staffed with royal clients — servants attached to the pharaoh's court. 
Later, however, officials also had to be recruited from the outside, from 
the ranks of the only class technically suited, the scribes, who thereby 
entered into patrimonial dependency. As early as the Old Kingdom the 
entire people was pressed into a hierarchy of clientage, within which a 
man without a master, was considered a good prize and, if apprehended, 
simply assigned to the pharaoh's draft labor gangs; this development 



13 ] _ Ancient Egypt i o 4 5 

was propelled by the overriding importance of systematic centralized 
river-regulation and of the construction projects during the long season 
in which the absence of agricultural work permitted drafting on an 
unprecedented scale. The state was based on compulsory labor: the 
pharaoh carried the scourge as one of his attributes, and the privileges 
of immunity from the third millenium, which Sethe 3 was the first to 
translate correcdy, concern the exemption of temple retainers or officials 
from compulsory services. The pharaoh maintained his oikos through 
his own enterprises and trade monopolies, the home production of un- 
free craft labor, the agricultural output of the coloni, and contributions. 
There was a rudimentary market economy, market exchange in particu- 
lar, wid quasi -monetary means of exchange (JJten, metal staffs). In 
the mail , however, the economic needs of the pharaoh were met, as 
the extant accounts show, from magazines and deliveries in kind, and 
for extraordinary construction and transportation services the pharaoh 
mobilized the subjects by the thousands, as the sources reveal. 

, The large private landed estates and nomarchies, the origin and 
significance of which are documented by the sources of the Old King- 
dom, created an intermediate period of feudalism in the Middle King- 
dom, but they disappeared after the period of foreign domination, as 
they had in Russia after the era of the Tatars. However, the temples 
acquired immunities as early as the Old Kingdom and were granted 
immense properties by the Ramessides. Thus, the priests and the [royal] 
officials became the only major privileged strata confronting the masses. * 
The bulk of the population was made up of political and patrimonial 
subjects, who were not clearly distinguished from one another,. Among 
those doubdessly under patrimonial rule we find numerous designations 
for the servile and the unfree who apparently differed in their eco- 
nomic condition and social rank; we cannot yet tell them apart, and 
perhaps they were in fact not stricdy differentiated. Insofar as the ■* 
subjects were not drafted for compulsory services, their taxes ,seem 
to have been farmed out to the officials for a lump sum. The offi- , 
dais enforced the declaration of taxable property through whipping and 
similar methods; thus tax collection typically took the form of a sud- 
den raid, Sight and chase. There was apparendy a difference between 
the patrimonial coloni of the pharaoh and the free political subjects, 
between the pharaoh's own land and the private property of the peas- 
ants, but this difference seems to have been mainly technical and per- 
haps had no stable meaning. For it appears that the royal household 
satisfied its economic needs increasingly in a liturgical fashion. The in- 
dividual became permanendy tied to his fiscal function and through it 
to the local administrative district to which he had been assigned or 



IO46 PATRIARCHAL AND PATRIMONIAL DOMINATION [ CJl. XII 

belonged by birth, landed property or occupation; the details are not 
known. Occupational choice was de facto largely free, but we cannot 
say for sure that a hereditary vocational attachment was not enforced 
if the economic needs of the royal household .seemed to warrant it 
There were no castes in the specific sense of the word. The political 
as well as the patrimonial subject could have a de facto freedom of 
mobility, but this became legally precarious as soon as the demands 
of the royal household required the subject to discharge his duties at 
the locality to which he belonged. The later Greek terminology denoted 
this location as the idia, the Roman terminology as the origo of the 
individual, and this legal conception played an important role toward 
the end of Antiquity. All landed property and every craft enterprise 
was considered to be subject to certain duties, in the form of services 
or deliveries; af the same time the possession of land and ot an enter- 
prise was viewed as the reward for fulfilling a function and thus tended 
to approximate the characteristics of a benefice. Benefices in kind or 
landed benefices were the compensation for specific office functions as 
well as for fulfilling military duties. 

The army too was patrimonial, and this was decisive for the phar- 
aoh's power position. At least during wartime the army was equipped 
and provisioned out of the royal magazines. The warriors, whose de- 
scendants were the mackimoi of the Ptolemaic period, received landlots; 
apparently they were also used for police duties. In addition, there were 
mercenaries paid from the royal hoard, which the pharaoh's trade enter- 
prises kept filled. The completely disarmed masses were easily held 
in check; resistance erupted only in the form of recalcitrance and strikes 
if food supplies were insufficient during compulsory labor projects. The 
geographic conditions, especially the comfortable river road and the 
objective necessity of uniform river regulation, preserved territorial unity 
up to the Cataracts with only a few' interruptions. Career opportunities 
and the dependence upon the royal magazines were apparently sufficient 
to preclude an extensive appropriation of benefices, which is technically 
easier in any case where the benefices involve fees or land rather than 
allowances in kind, as they did predominandy in the present case. The 
numerous grants of immunity show by their wording — the repeated 
promises of inviolability and the threats of punishment against officials 
who will violate them — that on the basis of his patrimonial power the 
ruler could indeed treat these privileges as precarious, so that the be- 
ginnings of a polity of estates QStandestaat) are here entirely lacking 
and patriarchalism remained fully intact. The fact that the benefices 
in kind were largely retained and that the private landed estates became 
rather insignificant in the New Kingdom contributed to the preserva- 



13 ] Ancient Egypt i o 4 7 

tion of the patrimonial bureaucracy. The fully developed money econ- 
omy of the Ptolemaic period did not weaken it, but rather acted as 
a strengthening factor by providing the means for rationalizing the ad- 
ministration. The liturgical methods, especially compulsory labor, yielded 
to a very comprehensive system of taxation, although die ruler never 
abandoned his right to draw on the labor services of his subjects and 
to tie them to their idia; indeed the older arrangements immediately 
regained practical importance when the money economy disintegrated 
in the third century a.d. The whole country appeared almost as one 
single domain of the royal oikos; only the temple households approxi- 
mated it in significance. The Romans took this setup as the legal basis 
for their treatment of the country. 



14. The Chinese Empire 

The Chinese empire constituted an essentially different type. Here 
too the power of patrimonial officialdom was based on river regulation, 
especially canal construction — but primarily for transportation, at least 
in northern and central China — , and on tremendous military fortifica- 
tions; again these projects were only possible through intensive use of 
compulsory labor and through the use of magazines for storing payments 
in kind, from which the officials drew their benefices and the army its 
equipment and provisions. In addition, the patrimonial bureaucracy 
benefitted from the even more complete absence of a landed nobility 
than was the case in Egypt. In historical times there were no liturgical 
ties which perhaps had existed in the past or whose introduction may 
once have been attempted, as might be inferred from certain traces in 
the tradition and some rudiments. At any rate, de facto freedom of 
mobility and of vocational choice — both were officially not really recog- 
nized — does not seem to have been permanently restricted in the his- 
torical past, In practice some impure vocations were hereditary. Other- 
wise there is not a trace of a caste system or of other status or hereditary 
privileges, apart from an unimportant titular ennoblement which was 
granted for several generations. In the main, patrimonial officialdom 
was confronted only by the sibs as autochthonous power, aside from 
merchant and craft guilds as they are found everywhere; the sibs, whose 
elders retained a very effective power position in the villages, were 
bound together within the narrower range of the family by ancestor 
worship and within the range of common surnames by exogamy. 

Because of the tremendous expansion of the empire and the small 
number of officials relative to the size of the population, the Chinese 



IO48 PATRIARCHAL AND PATRIMONIAL DOMINATION [Ch. XII 

administration was neither intensive nor was it centralized under the 
average ruler. The directives of the central agencies were treated by 
the subordinate ones,: as discretionary rather than binding. Here as 
everywhere under such circumstances officialdom, was obliged to take 
into account the resistance of traditionalism, whose bearers were the 
sib elders and the occupational guilds, and somehow to arrive at an ac- 
commodation with these powers so that it could function at all. But on 
the other hand, despite the tremendously tenacious power of these 
forces, the government apparently succeeded not only in creating a 
rather uniform officialdom, as far as its general character was concerned, 
but also prevented its transformation into a stratum of territorial lords 
or feudal barons whose power rests on local notability and who are there- ' 
fore independent of the imperial administration. This was accomplished 
even though here too officials liked to use legally and illejplly acquired 
wealth for investment in land and even though the Chinese ethic 
prescribed close bonds of loyalty between the candidate for office and 
his teachers and office-holders and their superiors. Especially die institu- 
tion of patronage and the officials* close relation to their sib were bound 
to create a tendency toward hereditary office baronies with a permanent 
clientele. It seems that such incipient baronies emerged time and again; 
above all, tradition glorified feudalism as the historically original insti- 
tution and the classic writings consider the de facto hereditability of 
offices as the normal state of affairs, as they do the right of the highest- 
ranking officials to be consulted before the appointment of colleagues. 
To vitiate the recurrent tendencies toward office appropriation and to 
arrest the formation of a fixed clientage and the rise of office monopolies 
on the part'of local honorattores the imperial patrimonial regime em- 
ployed die usual measures: brief office tenures, exclusion from appoint- 
ment in areas in which the official's sib is entrenched, and surveillance 
by spies (the so-called censors). 

In addition, the imperial regime introduced something new: for the 
first time in history there appear official qualifying examinations and 
official certificates of conduct. Qualification for rank and office came to 
depend in theory exclusively, and largely in practice, upon the'number 
of examinations successfully passed; confirmation in office and promo- 
tion or demotion were based upon the official's conduct reports, a 
resume of which was periodically published until recendy together with 
the enumeration of reasons, roughly in die manner of the quarterly 
grade reports of a German Gymmsiasl. From a formal viewpoint this 
constitutes the ftiost radical application of bureaucratic objectivity pos- 
sible and therefore an equally radical break with typical patrimonial 
office-holding which rests on the ruler's personal discretion and favor. 



i4 ] The Chinese Empire 1049 

It is true, of course, that benefices still could be bought and that per- 
sonal patronage remained important, but feudalization, appropriation 
and the clientele attached to an office CAmtskkentel) were contained, 
negatively by the intensive competition and distrust which isolated the 
officials, and positively by the increasingly universal acceptance of the 
social prestige which the educational patents imparted. As a result, the 
status conventions of the officials took on those features of an educa- 
tional aristocracy which have since characterized Chinese life so dis- 
ti'ncdy; these conventions were specifically bureaucratic, had a utilitarian 
orientation, were formed by classical education, and considered as high- 
est virtues the dignity of gesture and the maintenance of "face." 

Nevertheless, Chinese officialdom did not develop into a modern 
bureaucracy, for the functional differentiation of spheres of jurisdic- 
tion was carried through only to a very limited extent in view of the 
country's huge size. Technically, this low degree of differentiation was 
feasible because the whole administration of the pacified empire was a 
civilian administration; moreover, the relatively small army constituted 
a separate body and, as we shall see presently, measures other than the 
division of jurisdiction guaranteed the officials' compliance. But the 
positive reasons for refraining from jurisdictional differentiation were 
matters of principle. The specifically modern concept of the functional 
association (Zweckverband) and of specialized officialdom, a concept 
which was so important in the course of the gradual modernization of 
the English administration, would have run counter to everything char- 
acteristically Chinese and to all the status trends of Chinese officialdom. 
For the educational achievements, controlled by the examinations, did 
not impart professional qualifications but rather their exact opposite. 
The mastering of the calligraphic art, stylistic perfection, and convic- 
tions properly oriented to the classics were of paramount importance in 
passing the essay tests whose themes were sometimes reminiscent of 
the traditional patriotic and moral essay topics in our secondary schools. 
The examination really was a test of a person's cultur: I level and estab- 
lished whether he was a gendeman, not whether he was professionally 
trained. The Confucian maxim that a refined man was not a tool — the 
ethical ideal of universal personal self-perfection, so radically opposed 
to the Occidental notion of a specific vocation — stood in the way of 
professional schooling and specialized competencies, and time and again 
prevented their general application. This accounts for the specifically 
anti-bureaucratic and patrimonialist tendency of this administration, 
which in turn explains its "extensive" character and its technical 
backwardness. % 

ButChina was also that country which had oriented status privileges 



IO5O PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

most exclusively toward a conventional and officially patented literary 
education; to this extent it was formally the most perfect representative 
of the modem, pacified and bureaucratized society whose monopolies 
of benefices, on the one hand, and specific status structure on the 
other rest everywhere on the prestige of patented education. It is true 
that the beginnings of a bureaucratic ethos and philosophy can be found 
in some Egyptian documents, but only in China was a bureaucratic 
philosophy, Confucianism, systematically elaborated and brought to 
theoretical consistency. We have already dealt with its effect upon reli- 
gion and economy. The unity of Chinese culture is essentially the unity 
of that status group which is the bearer of the bureaucratic classic- 
literary education and of Confucian ethic with its ideal of gentility 
that we have previously discussed. The utilitarian rationalism of this 
status ethic is firmly restricted by the acceptance of a traditional magical 
religiosity and of its ritual code as a component of the status convention, 
and in particular by the acceptance of the duty of filial piety toward 
ancestors and parents. Just as patrimonialism has its genesis in the piety 
of the children of the house toward the patriarch's authority, so Con- 
fucianism bases the subordination of the officials to the ruler, of the 
lower to the higher-ranking officials, and particularly of the subjects 
to the officials and the ruler, on the cardinal virtue of filial piety. The 
typically Central and East European patrimonial notion of tbe "father 
of the country" (Landesvater) is similar, as is the role which filial piety 
plays as the foundation of all political virtues in stricdy patriarchal 
Lutheranism, but Confucianism elaborated this complex of ideas much -■ 
more consistendy. This development in Chinese patrimonialism was of 
course aided by the lack of a landowning seigneurial stratum and thus 
of a group of local notables capable of exercising political authority. But 
beyond this, it was made possible by the far-reaching pacification of the 
empire since the completion of the Great Wall, which for many cen- 
turies diverted the invasion of the Huns to Europe, and ever since ex- 
pansive drives had been aimed only at territories which could be held 
in subjection with a relatively small professional army. Toward the sub- 
jects the Confucian ethic developed a theory of the welfare state which 
was very sirnilar to, but much more consistent than that of the patri- 
monialist theoreticians of the Occident in the age of enlightened absolut- 
ism and also that of the theocratically and spiritually accentuated edicts 
of the Buddhist king Asoka. Yet the practice was different: despite 
some traces of mercantilism, the patrimonial regime interfered only for 
compelling reasons with the numerous local feuds of the sibs and vil- 
lages. Economic intervention was nearly always fiscally motivated; 
wherever" this was not the case, the attempt usually foundered on the 



14 ] The Chinese Empire 1051 

recalcitrance of the interested groups in view of the inevitable extensive- 
ness of the administration. In normal times this seems to have led to a 
far-reaching restraint of the political authorities toward the economy, a 
restraint which very early found support in theoretical laissez-faire 
principles. Within the sibs the educational prestige of the examined 
candidate for office, to whom all sib members turned for advice and, if 
he held office, for patronage, overlapped with the traditional authority 
of the elders, whose decisions remained usually decisive in local matters. 



15. Decentralized Patrimonial Domination: Satrapies 
and Divisional Principalities 

Even under purely bureaucratic patrimonialism no administrative 
technique could prevent that, as a rule, the individual parts of the realm 
evaded the ruler's influence the more, the farther away they were from 
his residence. The* nearest territories are directly administered by the 
ruler's patrimonial court officials and form bis dynastic landholdings 
(Hausmachi). Adjacent to these are the oudying provinces, whose gov- 
ernors in turn administer them in patrimonial fashion. Because of the 
inadequate means of transportation, if for no other reason, the governors 
do not render all of the contributions to the ruler, but only the surplus 
remaining after the local demands have been met; as a rule, they pay 
only fixed tributes and with increasing distance they become more and 
more independent in their disposition over the military and tax capacities 
of their provinces. This is also a consequence of the need, in view of 
the lack of modern means of communications, for rapid decision-making 
by the officials in the case of enemy attacks on these marches; their 
governors were everywhere endowed with strong powers. It is for this 
reason that in Germany the strongest development toward a unified 
v territorial state occurred in [the two former marches:] Brandenburg 
[-Prussia] and Austria. Finally, there are the very remote areas whose 
merely nominally dependent rulers could be forced to pay tributes only 
through continually renewed campaigns of extortion. The Assyrian 
kings undertook such campaigns just as did until very recently the 
rulers of many African kingdoms, who every year turned to another 
remote area of their presumed, generally unstable, and partly outright 
fictitious, realm. The dependency of the "governors" of most Oriental 
and Asian empires was in practice always unstable; their position is 
usually in between two types represented on the one hand by the 
Persian satraps, who could be arbitrarily removed, but who were re- 



10 51 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. Xll 

sponsible for fixed tributes and fixed military contingents, and on the 
other the Japanese daimyos, who were almost independent territorial 
rulers, although they could he transferred if they violated their obliga- 
tions. In the great continental empires this kind of political conglomera- 
tion always constituted the most widespread type; its crucial features 
remained rather constant hut its individual variations could naturally be 
quite considerable. Until modern times, the Chinese empire, too, despite 
the homogeneity of its officialdom, showed these features of a conglom- 
eration of satrapies, in part merely nominally dependent, which were 
grouped around the direcdy administered central provinces. Just as did 
"the Persian satrapies, the local authorities retained the revenues from 
their provinces and used them first of all to cover the costs of local 
administration; the central government received only its fixed tribute, 
which could legally be increased, but in fact only with great difficulties 
and against the passionate resistance of the provincial interests. The 
most important issue of contemporary administrative reform in China 
is probably the question of the extent to which the very palpable 
remnants of this condition should and can be abolished in favor of 
a rational organization of central and local powers, including the crea- 
tion of a reliable central government capable of attracting [foreign] 
loans; this problem is of course closely linked with those connections 
between central and provincial finances and thus with those same con- 
flicts of economic interest. 

The mere obligation to pay tributes and to provide contingents is 
one marginal case of decentralization; another is the sub-kingdom. Since > 
all powers, economic as well as political, are considered the ruler's 
personal property, hereditary division is a normal phenomenon. As a 
rule such a division is not understood as constituting completely inde- 
pendent powers: it is not a definitive division (Xotteilung) in the sense 
of Germanic law, but at first mostly a mere apportionment of revenues 
and seigneurial rights for independent use within a realm the unity of 
which is at least fictitiously preserved. This purely patrimonial interpre- 
tation of the princely position resulted in die Merovingian Kingdom, 
for example, in a geographically most irrational manner of division: 
prosperous domains or other good revenue sources had to be divided in 
such a fashion as to equalize the incomes of the various, divisional 
rulers. The manner and the degree of the unity which actually remains 
can vary considerably. Sometimes only an honorific precedence of one 
ruler over others is maintained. Kiev, to which the tide of the Grand 
Prince was attached and which was the seat of the metropolitan, played 
the same role in the period of Russian divisional principalities as did 
Aix-la-ChapeUe and Rome with regard to the imperial title after the 



15 ] -Decentralization: Satraps & Divisional Monarchs i o <f 3 

division of the Carolingian empire. Genghis Khan's empire was con- 
sidered the joint property of his family and the tide of the Great Khan 
was supposed to devolve upon the youngest son, even though in actu- 
ality it was bestowed by designation or election. In practice the divi- 
sional rulers free themselves everywhere from the subordination expected 
of them. Instead of preserving the unity of the realm, the very appor- 
tionment of important offices to members of the ruling family may 
precipitate disintegration or — as in the Wars of the Roses — clashes be- 
tween pretenders. It depends upon various circumstances to what extent 
hereditary division will apply to appropriated office powers also, once 
the patrimonial offices have become heritable property. One important 
factor will certainly be the degree of disintegration or, conversely, of 
preservation of the office character of this property. If patrimonial offi- 
cialdom is very powerful, one central official may represent the actual 
unity of the empire vis-a-vis the divisional rulers — as did the Caro- 
lingians when they held the office of the motor domus; the removal of 
such an official would facilitate the definite division. But it is natural 
that these highest patrimonial offices, once fully appropriated, in turn 
easily became subject to division, as again happened with the Carolingian 
"mayoralty of the palace" under the Merovingian kings. This principle 
of hereditary division was very dangerous for the stability of patrimonial 
structures; its elimination was accomplished in different degrees and for 
different motives. 

Very generally speaking, political considerations were bound to 
oppose hereditary division in countries exposed to political pressures 
from the outside; moreover, in the interest of family preservation every 
monarch had an obvious interest in preventing hereditary division. But 
this motive of power politics did not always suffice. Motives of a 
partly ideological and partly technical-political nature were necessary to 
strengthen this trend. After the introduction of the bureaucratic order 
the Chinese monarch was vested with a dignity so supernatural as to 
make it conceptually indivisible. Furthermore, the status solidarity and 
the career interests of the bureaucracy militated against the technical 
divisibility of the political structure. In Japan the shogun and the 
daimyo remained formally "officials," and the peculiar vassalic character 
of the civilian and military administration (the han concept which we 
dealt with earlier) favored the preservation of the unity of political 
authority CHerrenstellung). The religious unity of the caliphate did not 
prevent the disintegration of the purely secular sultanate, a creation of 
the slave generals, into sub-empires. But the unity of the well-disciplined 
slave armies in turn favored the indivisibility of these sub-empires once 
they were established; partly for that reason hereditary division never 



I O 5 4 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

became customary in the Islamic Orient It also did not exist in the 
ancient Orient; the imperative unity of a state-controlled irrigation 
economy was probably the major technical reason for preserving the 
principle of indivisibility, which, however, most likely had its historical 
origin in the initial character of kingship as the rulership of a town. 
For in contrast to rural territorial domination, the rulership of a town 
is technically not at all divisible, or only under great difficulties. At any 
rate, the absence of hereditary division in the Oriental patrimonial 
monarchies had religious and administrative and, in particular, technical 
and military reasons. A division like that effected by the successors of 
Alexander the Great occurred because several standing armies under 
separate commanders existed side by side, but not because of the divi- 
sion of inheritance in a ruling house. 

Wherever the ruler's powers had an office character in the Occident, 
they tended to impede hereditary division, as in the case of the Roman 
emperorship. Only with the final disappearance of the office-character 
of the Roman frinceps, replaced by the dominus of Diocletian's new 
order, did a tendency toward division emerge, but its basis was politico- 
military, not patrimonial, and soon found its limits in the unity of each 
of the two halves which long ago had become separated militarily with 
regard to recruitment. Thus the origin of the magistracy and the mon- 
archy in the supreme command over the citizens' army remained ef- 
fective until very late in Antiquity. Later, too, everything that was 
considered wholly an "office" remained indivisible; especially the em- 
perorship, beside offices which had not become appropriated. Moreover, 1 
in the Occident as everywhere else all long-range power interests of the 
monarchs favored the limitation or the elimination of hereditary divi- 
sion. This was especially true of new kingdoms based on conquest. The 
Norman kingdoms in England and Southern Italy and the kingdoms 
of the Spanish reconcfuista remained indivisible, just as had been the 
first kingdoms of the Teutonic migrations. Elsewhere indivisibility was 
aided by two strongly contrasting developments. In the kingdoms of 
Gennany and France this was the fact that they — the latter at- least 
formally — became electoral monarchies. In the other patrimonial coun- 
tries, however, it was the emergence of a specifically Occidental phe- 
nomenon: the bodies of territorial Estates (standische Territorialkdr- 
ferschaften). Because and insofar as each body of Estates — the predeces- 
sor of the modem state — was considered a unit, the power of the 
territorial ruler CLcmdesherr) was also viewed as indivisible. However, 
here we have already the beginnings of the modem "state." Within the 
patrimonial structures the independence of the local powers may vary 
widely, ranging from officials attached to the patrimonial household to 



*5 1 Decentralization: Satraps & Divisional Monarch* 1055 

tributary princes and to divisional rulers who are dependent merely in 
name. 



16. Patrimonial Ruler versus Local Lords 

The continuous struggle of the central power with the various 
centrifugal local powers creates a specific problem for patrimonialism 
when ihe patrimonial ruler, with his personal power resources — his 
landed property, other sources of revenue and personally loyal officials 
and soldiers — , confronts not a mere mass of subjects differentiated 
only according to sibs and vocations, but when he stands as one land- 
lord {Grundherr) above other landlords, who as local konoratwres wield 
an autonomous authority of their own. In contrast to China and to 
Egypt since the New Kingdom, this happened in the ancient and 
medieval patrimonial "states"' of the Near East and most prominently 
in* the Occident since the Roman Empire. The patrimonial ruler cannot 
always dare to destroy these autonomous local patrimonial powers. Some 
Roman emperors, Nero, for example, went far in wiping out private 
large landowners, especially in Africa. However, if the ruler intends to 
eliminate the autonomous konoratiores, he must have an administrative 
organization of his own which can replace them with approximately the 
same authority over the Ideal population. Otherwise a new stratum of 
konoratiores comes into being with similar pretensions — the new lease- 
holders or landowners who take the place of their native predecessors. 

To some extent for the Near Eastern state, and as a rule for the 
Hellenistic and the Imperial Roman state, the specific means of creat- 
ing a local administrative apparatus was the founding of a city. We 
also find a similar phenomenon in China, where as late as the last 
century the subjection of die Miaotse was identical with ,jtheir urbaniza- 
tion. We shall later deal with the meanings which the foundation of 
cities had in these various cases; there were indeed great differences. 
At any rate, from this fact can be explained that, generally speaking, 
the economic limits in time and space or • hv foundation in the Roman 
empire also became the boundary lines for the traditional structure of 
ancient culture. Landed estates naturally gained the morc political in- 
fluence, the more the empire became an inland state. 

In the late Roman state since Constantine, the power of the bishops 
became the safeguard of the empire's unity; the ecumenical councils 
became the imperial assemblies proper. We will show later why the 
church, universalized and politicized by the state, could not in the long 
run keep up this role sufficiendy — exactly because its accentuated po- 



IO56 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

litical character very soon "regionalized" it. In the patrimonial state of 
the early Middle Ages the church was chosen for a similar role, alheit 
in a different form, for example, in the kingdom of the Franks and, 
again differently, in the feudal states. In Germany, in particular, the 
king attempted, at first with the greatest success, to establish a counter- 
vailing power to the local and regional powers; in the bishops he created 
a clerical estate of political honoratiores to compete with the correspond- 
ing secular stratum. Since bishoprics were not hereditary and the bishops 
not locally recruited and interested, they appeared solidary with the 
king by virtue of their universalis! interests. Furthermore, the seigneurial 
and political powers granted to them by the king remained even legally ■ 
in his hands. Therefore, the pope challenged in particular the German 
king's basic power resources ,vis-&-vis the local authorities when he at- 
tempted to organize the church directly in a bureaucratic manner and 
thus to gain complete control over the church offices or at least to have 
these appointmenis made by the local clergy and parish according to 
the canonical rule. The latter alternative meant in essence control of 
the church offices by a local stratum of clerical honoratiores — the capit- 
ulars of the cathedral chapters — who were linked with the local secular 
honoratiores through familial and personal ties. For this reason the 
church easily secured the support of the secular notables in its struggle 
with the king. 

As far as we know the matter, the unstable unity of the Persian 
empire for two centuries was made possible through disarmament and 
theocratic rule — as also in the cases of the jews and of Egypt; more- 
over, strong national differences and the collisions of interest of local 
notables were exploited. At any rate, already in the Babylonian and 
Persian empire we find at least traces of those typical clashes between 
local notables and central powers which later became one of the most 
important determinants of western medieval development. 

The local landlords demand first and foremost that the patrimonial 
ruler do not interfere with their own patrimonial power over their 
retainers or that he direcdy guarantee it. They demand especially im- 
munity: exemption from interference on the part of the ruler's adminis- 
trative officials on their own land. The following claims are advanced: 
only through the mediation of the landlord should the ruler contact 
retainers; the landlord should be held responsible for their criminal and 
fiscal liabilities, to him should be delegated the drafting of the army 
recruits and he should be the one to pay the ruler's tax claim on the 
retainers as well as to sub-allocate it among them. In addition, since the 
local lord desires to exploit for himself the retainers' economic capacity 
to render services and contributions, he will attempt to diminish as far 

S 



i6" ] Patrimonial Rulers versus Local Lords i o 5 7 

as possibleV or at least to fix, their obligations toward the patrimonial 
ruler. Privileges of immunity which satisfy such claims in varying de- 
grees can be found in Egypt as early as the third millennium where they 
were granted to temples and officials; in the Babylonian empire they 
were granted also to private landowners. If asserted with consistency, 
these pretensions lead to the exemption of the latifundia from the com- 
munal associations — villages communes and sometimes also cities — set 
up by the patrimonial ruler as the bearers of rights and duties. We find 
this condition as early as the Hellenistic empire and in Imperial Rome. 
At first the royal domains themselves were exempted from all communal 
associations. It could therefore happen that not only the monarchic 
officials but also the lease-holder of the royal domain exercised political 
in addition to patrimonial rights. The same was also true of the private 
latifundia, which became increasingly important in the Roman" empire; 
besides the cities, their territories came to occupy a position similar 
to that of the East Elbian estate districts (Gutsbezirke'), which date 
back to feudal times.* However, in the Occidental monarchies of the 
Middle Ages the claims of the local seigneurial powers proved much 
more effective than in Antiquity, since their rulers were nor supported 
by the standing army, and the bureaucracy was not trained according 
to established traditions. Even in early modem history the monarchy 
could not avoid making compromises with the seigneurial lords, as long 
as it was not in a position to establish its own army and bureaucracy 
and to pay both from its own treasury. The monarchy of late Antiquity, 
especially of Byzantium, likewise had to make concessions to regional 
interests. Even military recruitment became increasingly regional from 
the fourth century on. The urban administration by decuriones and the 
manorial administration in the countryside put all purely local affairs 
into the hands of the local notables. But these strata were after all con- 
trolled by the late Roman and the Byzantine central power. This- was 
completely lacking in the Occident. In contrast to the official principles 
. of Chinese administration and also those which Occidental rulers re- 
peatedly attempted to impose, the seigneurial lords succeeded very soon 
in their insistence that the rulers local official be an owner of landed 
property in the district and thus that he be taken from the stratum of 
local land-owning notables. This was true of the English sheriffs and 
justices of the peace as well as of the Prussian Landrate. In Prussia their 
right of nomination for local state offices was preserved for the post of 
the Landrat into the 19th century. The nominating committees were 
controlled by the large landowners of a county. On a far greater scale 
the greatest of the medieval barons succeeded in usurping de facto the 
office patronage of large areas. Historical development tended every- 



IO58 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Cfe. Xll 

where to "mediatize" all subjects of the patrimonial ruler, to interpose 
the local honoratiores as the sole occupants of all political offices, to cut 
off the direct relationship between ruler and common subjects and to 
direct both exclusively to the local office incumbent for their respective 
claims — for taxes and military service, on the one hand, and for legal 
protection on the other. This was a trend toward the elimination of 
any control on the part of the ruler and toward the hereditary appropria- 
tion of the political office by a family, legally or in fact, or at least by a 
monopolistic group of local konoratiores. 

The straggle between the patrimonial prince and the natural tend- 
encies of the local patrimonial interests had the most diverse results. 
The prince had primarily a fiscal and military interest in the "medi- 
atized" subjects: an interest in maintaining their number, that is, the 
number of small holdings sufficient to support one peasant family; in 
preventing their exploitation by the local patrimonial authorities beyond 
a point at which their capacity to satisfy his own demands would suffer; 
in retaining the power to tax them and call them up for military serv- 
ice directly without any mediation. On their part, the local patrimonial 
lords wanted to represent the peasants in all dealings with the prince. 
Apart from its implications for feudal law, which we will discuss later, 
the principle of nulle terre sans seigneur also had this practical signifi- 
cance in the sphere of administrative law: that for the princely adminis- 
tration a village community of peasants, as an association with powers 
of its own, was not to exist and that each peasant was to belong to a 
patrimonial association and to be represented by a patrimonial lord, so 
that the ruler would only be entitled to deal with the lords but not with 
their retainers. This latter policy was fully carried through -only in 
exceptional cases, and then only temporarily. Whenever the prince 
could strengthen his position, Jiis connections with all his subjects 
became more direct in one way or another. However, as a rule the 
prince found himself compelled to compromise with the local patri- 
monial authorities or other honoratiores; he was restrained by the pos- 
sibility of an often dangerous resistance, by the lack of a military and 
bureaucratic apparatus capable of taking over the* administration and, 
above all, by the power position of the local konoratiores. Purely finan- 
cial reasons alone would have made it impossible for the prince to run 
the local administration without the help of the nobility in late medieval 
England and even more so in the East Elbian Prussia of the 18th 
century. For Prussia this situation probably explains the monopoliza- 
tion by the nobility of officers' posts and its preferential treatment in 
the civil service — especially the complete exemption from qualifications 
otherwise required, or at least a fairly extensive dispensation; another 



J 6 ] _ Patrimonial Rulers versus Local Lords 1059 

result was the predominance, still existing today, of the estate owners 
(Ri ttergitsbesitz) in all rural local administrative bodies. 



1 7. The English Administration hy Notables, the 
Gentry's Justices of the Peace, and the Evolution 
of the "Gentleman" 

If the prince wanted to prevent such an appropriation of the whole 
local state administration by the local patrimonial lords, he had no 
choice, as long as he did not have very considerable resources of his own, 
but to put the administration into the hands of some other group of 
konoratiores, whose number and power were significant enough to check 
the great patrimonial lords. In England this situation resulted in the 
emergence of the justices of the feace, an institution whose characteristic 
features were shaped during the great wars with France. 5 The patri- 
monial administration of the manorial lords and their judicial powers, 
but also the local offices — the sheriff — dominated by the feudal nobility 
could not cope with purely administrative tasks because economic de- 
velopments dissolved the servility relationship. Furthermore, the Crown 
was interested in pushing aside the patrimonial and feudal authorities, a 
policy that was vigorously supported by the Commons. Here as else- 
where the novel administrative tasks primarily concerned the mainte- 
nance of public peace; economic change created a growing need for 
pacification. The usual explanation that war-time insecurity brought 
about these administrative changes is unconvincing, since the position of 
the justice of the peace became permanent. The public insecurity was 
felt more strongly because of the increasing market ties of the individual 
households. Characteristically enough, we also encounter unemployment 
and rising food prices, which resulted from the expansion of the money 
economy. Therefore, the first of the manifold tasks devolving upon the 
justices of the peace were public security and the policing of the trades 
and of consumption. The justices were recruited from private groups 
eonomically interested in their functions. The Crown attempted to win 
the gentry over to its side and to pit it against the greatest patrimonial 
lords, the barons, by appointing from each county local notables as 
conservatores facts and by equipping these with increasingly complex 
police and criminal court powers. Appointments were made de facto 
and soon also de ittre from among the landowners of the district who 
qualified by virtue of their groundrent and who maintained a knightly 
style of life; formally these appointments were revokable but in practice 
they were for life; the Crown retained the right to effect the appoint- 



I 06-O PATRIARCHAL AND PATRIMONIAL DOMINATION [ Cfe. XII 

ments, and reserved to the royal courts the supervision of the incumbents' 
conduct. One of the justices of the peace, the Lord Lieutenant,, became 
commander of the militia. Regular bureaucratic channels for appeal 
against the decisions of the justices of the peace did not exist, or at least 
only at the peak of the royal power claims, in the form of the Star 
■Chamber, which for this very reason was destroyed by the gentry in the 
17th century revolution. The only way to bring a concrete issue before 
the centra] agencies — a way which in practice was increasingly used — 
was a special order (the writ of certiorari), issuance of which was at 
first completely discretionary. The Crown managed to defeat many 
attempts at making the appointment of justices of the peace directly 
dependent upon election by the local honoratiores; it modified its control 
over appointments only By granting a right of nomination to certain 
advisors of the king. Thus, these high-ranking officials, especially the 
chancellor, were given a patronage power which was often used for 
pecuniary gain. However, in opposing this v^-ronage as well as the legal 
claims of the crown, the solidarity of the gentry was, strong enough to 
perpetuate its monopoly on the office of the justice of the peace, and 
during the reign of Elizabeth complaints were heard that the recom- 
mendation by incumbents was indeed decisive for new appointments. 

Like all royal officials, the justice of the peace took fees and received 
daily allowances. But in view of the low income involved it became the 
status convention of the landowners to decline fees. As late as the 18th 
century, the property qualification of the justices of the peace was con- 
siderably raised. As a normal prerequisite a certain land value was re-* 
quired. The increasing leasing of property typical of England freed the 
time of the rural gentry for these official tasks. As far as the urban 
bourgeoisie was concerned, the participation of active businessmen was 
handicapped because of the very economic indispensability which every- 
where excludes them from the circle of honorattores. However, older 
persons who had retired from business frequendy became justices of 
the peace; this was even more often true of that growing group of guild 
members who turned from entrepreneurs into rentiers after having 
amassed sufficient wealth. The characteristic fusion of the rural and 
urban rentier strata in the type of the gentleman was gready facilitated 
by their common ties to the office- of the justice of the peace. In these 
circles it became a status custom to have the sons appointed justices 
of the peace at an early age, after they had finished their humanist ed- 
ucation. Henceforth the office was an unpaid position whose obligatory 
assumption was formally a liturgy for qualified aspirants, often to be dis- 
charged for only a short period. Many justices of the peace were inactive, 
but this trend was reversed in modern times. For them the office was 



ij\ _ The Engtish Administration by Notables, 1061 

merely titular and a source of social honor. Social status and social power 
also explain why this position, requiring considerable work if actively 
held, remained at all times sufficiendy sought after even for its active 
occupation. Eventually the professional jurists, who competed sharply 
for centuries, lost out. They were gradually driven from the office by its 
low income and the gentry's eventual renunciation of all fees. The in- 
dividual lay justice of the peace took the advice of his personal lawyer, 
but on the whole he made his decisions with the help of the clerks 
according to tradition and largely also to considerations of substantive 
justice; this made the administration of the justices of tte peace popular 
and accounts for its distinctive features. Here we have *ne of the very 
few cases in which professional officialdom was entirely displaced, in 
peaceful competition, fay the honorary office in spite of the increase of 
administrative tasks. The decisive incentive for the gentry's interest in 
the office of the justice of the peace was not some specific "idealism," 
but the real and practically unrestrained influence which the office pro- , 
vided; formally it was limited solely by the rule that all important issues * 
should be settled only collegiately, by at least two judges together, but 
substantively it was constrained by a strong sense of duty that derived 
from the status convention. 

Administration by justices of the peace reduced all local administra : 
tive bodies outside the cities almost to insignificance At the peak of 
this system of self-government, which was praised as a national pal- 
ladium, the justices of the peace were practically the only officials who 
did effective administrative work in the counties, next to whom the old 
compulsory liturgical associations, the patrimonial manorial administra- 
tion and every kind of royal patrimonial-bureaucratic regime had shrunk 
to insignificance. This was one of the most radical types of an administra- 
tion solely by notables ever carried through in a big country, and the 
conduct of office corresponded to it. The administration of the justices of 
the peace was up to our own days very much in the nature of "kadi 
justice" — and the only administration significant for the masses since 
the royal courts in London were geographically and, because of the im- 
mense fees, economically just as far out of their reach as the praetor was 
for the Roman and the Tsar for the Russian peasants. Like all ad- 
ministration by konoratiores, its inevitable characteristics were admini- 
strative minimization and ad hoc activities, which thus did not amount 
to a continuous and systematic operation. (fietneV). To the extent that 
this administration was not limited to the keeping of rolls (as at first in 
the case of the custos rotuhruin), it was mainly repressive and un- 
systematic, and as a rule reacted only to evidendy gross violations or to 
the complaint of an, injured party. This administration was technically 



I O 6 2 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck. Xll 

unsuited to deal continuously and intensively with positive administra- 
tive tasks or to pursue a consistent unified "welfare policy," because it 
was essentially 3 part-time occupation for gendemen. It is true that at 
the quarter sessions of the justices of the peace at least one of them had 
to be legally trained. The quorum clause required that this person or 
these persons be listed by name in the commission; in this fashion the 
central administration retained influence on the composition of the active 
justices of the peace. But even this stipulation lost validity since the 1 8th 
century: everyone actively participating came to be included in the 
quorum. 

The subject had to reckon with the possibility that the police and 
penal power of the justices might aifect all spheres of his life: from 
■visits to the pub, cardplaying or the choice of clothes proper to his station 
in life to the level of the com prices and the adequacy of wages, and 
from indolence to heresy. An infinite number of statutes and ordinances, 
whose stipulations often had an accidental origin, depended for their 
enforcement solely upon the justices of the peace. But it was largely 
within their discretion whether and when, with what means and how 
thoroughly they intervened. The notion of systematic administrative ac- 
tivity in the service of definite goals was exceptional in these circles, and 
an attempt to impose a coherent system of "Christian welfare policies" 
was made only during the brief period of the Stuarts, especially under 
Laud's administration. As might be expected, this attempt eventually 
failed because of the very circles from whom the justices of the peace 
were recruited. 

The "extensive" and interc:. ,it administration by the justices of 
the peace seems to be reminiscent, of the Chinese administration which 
had some of the same external characteristics; the same appears true of 
the way in which the central authorities intervened: either concretely 
for individual cases and then often successfully, or in an abstract manner 
through very general directives which often had litde more than sug- 
gestive value. But the difference is tremendous. It is true that here as 
there the decisive state of affairs is the same: The patrimonial-bureau- 
cratic administration is confronted by local authorities with whom it 
must somehow reach an accommodation in order to carry on its opera- 
tions. However, in China the educated administrative officials face the 
elders of the sibs and the guild associations, whereas in England the 
professionally trained judges face the educated iftoworatiores of the land- 
owning gentry. The Chinese honoratiores are the educated who have been 
prepared for an administrative career through' a classic-literary training; 
they are benefice-holders and aspirants to benefices, and therefore on 
the side of the patrimonial-bureaucratic power; by contrast, in England 
the core of the gentry was a free status group of large landowners, who 



i j ] The English Administration by Notables 1063 

were merely empirically trained on the job to rule over retainers and 
workers and who came to be humanistically educated. Such a stratum 
did not exist in China, which represents the purest type of patrimonial 
bureaucracy that is unencumbered (as far as this is possible) by any 
counterweight and that has not yet been refined into modern specialized 
officialdom. 

At its peak the English administration by the justices of the peace 
was a combination of patrimonialism of the estate type with a pure 
type of autonomous administration by honoratiores, and it tended much 
more toward the latter than toward the former. Originally this ad- 
ministrative system was formally based on liturgical obligation — for this 
is what the duty to take on the office involves. But in reality, due to the 
actual distribution of power, it was the voluntary co-operation not of 
subjects, but of free members of a political association — of "citizens," 
that is — on which the prince depended for the exercise p£his authority. 
Primarily on that account this administration is quite different from the 
typical political hierarchy of a princely patrimonial household and of 
subordinate private patrimonial rulers with their own subjects; in fact, 
it developed exacdy parallel to the disintegration of private dependency. 
Substantively the English squirearchy, which had created this system, 
was of course a stratum of notables of decidedly manorial character. 
Without specific feudal and manorial antecedents the peculiar "spirit" 
of the English gentry would never have come into being. The particular 
ideal of manliness of the Anglo-Saxon gentleman shows indelible traces 
of this origin. This trait comes to the fore mainly in the formal strictness 
of the conventions, in the vigorously developed pride and sense of 
dignity, and in the social importance of sports which in itself is con- 
ducive to the formation of a status group. However, already before the 
penetration of Puritanism this "spirit" was quite effectively transformed 
and rationalized by the increasing fusion of the squirearchy with specif- 
ically bourgeois, urban rentier and active business strata; as we will 
discuss later, it was influenced in a direction similar to the t orie which 
resulted from the fusion of nobility and popolo grasso in Italy. But the 
modem type of gendeman developed out of the older one only under 
the influence of Puritanism, which transcended the realm of its strict 
adherents; the squirearchic semifeudal features were gradually assimi- 
lated to the ascetic, moralistic and utilitarian ones, but as late as the 
1 8th century they werte opposed to one another. ■ 

In the face of the assault of capitalist forces the office of the justice 
of the peace was one of the most important means for preserving; the 
influence of this peculiar type of gentility not only on the administrative 
practices arid the high integrity of the officials, but also on the general 
social notions of honor and morality. Administration by unrecompensed 



I064 PATRIARCHAI, AND PATRIMONIAL DOMINATION [ Ch. Xlt 

justices of the peace who were educated laymen was technically no 
longer feasible under the conditions of the modem city life. Slowly the 
number of paid urban justices of the peace increased; in the middle of 
the last century they numbered 1,300 out of 13,000, among whom 
10,000 were merely titulars. The lack of any systematic administrative 
organization and the mixture of patriarchal and purely rational organi- 
zation resulted from the fact that rational bureaucracy was introduced 
only in piecemeal fashion into the old administrative framework, as 
concrete individual needs arose. The old administration was politically 
important because of the intensive schooling of the propertied classes 
in the conduct of administrative affairs and the strong conventional 
dedication to and identification with the state. Economically relevant 
was especially the inevitable minimization of administrative activity 
which gave almost completely free reign to economic initiative despite 
its fairly strong conventional restraints on business ethics- Viewed as an 
instance of patrimonjalism, administration through justices of the peace 
constituted an extreme marginal case. 

In all other historically significant cases of a coexistence of patri- 
monial prince and landowning honoratiores the latter were patrimonial 
lords too. When at the beginning of modern history the patrimonial 
bureaucracy emerged, the two powers agreed explicidy or tacitly on this 
compromise: that the local patrimonial lords are guaranteed authority 
and economic control over their retainers insofar as this is compatible 
with the ruler's interest in taxation and military recruitment; that they 
completely control the local administration and the lower courts which 
have jurisdiction over their retainers; that they represent the latter vis-a,- 
vis the prince and his officials; that all state offices or at least a large 
percentage of them, especially all or almost all officers' posts, are reserved 
for them; that they do not pay personal or real estate taxes, and that 
as "nobility" they enjoy extensive status privileges with regard to the 
courts competent to judge them, the type of punishment and of evi- 
dence. Their privileges stipulate most of the time that only they qualify 
for patrimonial lordship and hence can own estates with personally or 
patrimonialfy dependent peasants. In the England of the gentry ad- 
ministration only remnants of such status privileges of an independent 
nobility survived. 



iS. Tsarist Patrimonialism 

The power position of the English gentry within the local administra- 
tion resulted from the acceptance of a quasi-liturgical obligation entail- 
ing a very 'time-consuming and cosdy duty of holding an unpaid office. 



i8 ] Tsarist Patrimoniatism 1065 

Such obligations did no longer exist on the Continent in modern history. 
However, the Russian nobility was subjected to a kind of service liturgy 
from the period of JPeter the Great to Catherine II. Peter the Great 
abolished the customary social ranks and legal rights of the Russian 
nobility in favor of two simple principles: 1) Social rank (chin) is 
obtained only through service in a patrimonial-bureaucratic (civilian or 
military) position, and depends upon a person's relative standing in an 
office-hierarchy of fourteen ranks. Since the existing nobility had no 
office monopoly and since no landed property qualification but — at least 
theoretially — an educational qualification was required, this seemed to 
approximate the Chinese conditions. 2) The aristocratic privileges lapsed 
after two generations if their holders did not take over an office. This, 
too, seems to be similar to the Chinese practice. However, the Russian 
aristocratic title entailed among other privileges the exclusive right of 
owning land settled with serfs. Hence "nobility" was tied to the pre- 
rogatives of seigneurial patrimonialism in a manner quite unknown in 
CJiina. The forfeiture of aristocratic patents because of failure to take 
an office was abolished in the reign of Peter III and Catherine II. But 
the chin and the official table of ranks (tahel' o rangakti) continued 
to be the official basis of social prestige, and at least a temporary 
service in a state office remained a status convention for young noblemen. 
The patrimonial domination of the aristocratic landowner was almost 
universal in the realm of private landed property, in the sense of the 
principle "nulle terre Satis seigneur," since apart from the "noble" 
landed property thete were only the manors of the princely domains 
and appanages and of the clergy and monasteries; allodial property in 
other hands existed riot at all or only in a few survivals (the odnodvortsy) 
or in the form of militaty fiefs (held by Cossacks). Thus the rural local 
administration, insofar as it was not a domain administration, was com- 
pletely in the hands of the landowning nobility. However, political 
power proper and social prestige were — wholly in accordance with the 
Chinese pattern— dependent solely upon office holding or direcdy upon 
court connections; this was especially true of all opportunities for eco- 
nomic advancement deriving here as everywhere from the exercise of 
political power. Of course, it was an exaggeration when Paul I enlightened 
a foreign visitor that a nobleman was only he with whom he deigned 
to talk and only as long as he talked to him. However, the Crown could 
indeed risk a behavior toward the nobility, even toward the bearers of 
the most famous names and owners of the largest properties, which no 
Occidental ruler, no matter how great a potentate, could have permitted 
himself toward the lowliest of his legally unfree ministenales. 

The Tsar's power was rooted in the firm solidarity of interest with 
him on the part of the individual c/iin-holders who ran the administra- 



I O 6 6 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ck. Xll 

tion and the army, which was based on compulsory recruitment. Equally 
important was the complete lack of a status-based solidarity of interest 
among the nobility. Just like the Chinese benefice-holders, the Russian 
nobles viewed one another as competitors for the chin and all the oppor- 
tunities available through the ruler's favor. Therefore, the nobility 
was deeply split into coteries and entirely powerless in relation to the 
ruler; the modern reorganization of local administration created a partly 
new situation, yet the nobility attempted common resistance only rarely 
and then always unsuccessfully, even though Catherine II had expressly 
endowed it with the right of assembly and of collective petition. This, 
complete lack of aristocractic status solidarity, which resulted from the 
competition for court favors, was not merely a consequence of the re- 
organization undertaken by Peter the Great, but had its origin in the 
older system of the mestnichestvo, which had determined the social rank- 
ing of the honoratiores since the Muscovite patrimonial state had been 
established. From the beginning social rank depended upon the dignity 
of the office granted by the Tsar, the universal landowner; its material 
compensation was the service fief— pomesi'e (from mesto: position). The 
difference between the old mestnichestvo and the new order of Peter 
the Great was in the last analysis merely that [in the former] the service 
fief and the rank assigned to the first acquirer, or a later possessor by 
virtue 6f his administrative position, became hereditary for all his 
descendants, and hence that the rank order of the individual noble 
families had a relative stability. The young nobleman received his first 
office according to i) the highest official rank in the office hierarchy 
achieved by any ancestor and 2) the number of generations elapsed 
between the highest position held by one of these ancestors and the be-* 
ginning of his own services. Well-established status convention pre- 
scribed that no member of a higher-ranking family could accept an 
office which would make him subordinate to an official from a family 
of lower office rank; just as little could he ever accept a seat at table 
— even if he endangered his life when it was the Tsar's table — below 
an official who, according to the mestnichestvo, had a lower family rank, 
no matter how high the latter 's personal official position was. The system 
limited the Tsar considerably in the selection of his highest-ranking 
administrative officials and army leaders; only under great difficulties 
could he ignore it and then at the risk of continuous protests and in- 
subordination even on the battlefield. But the system also forced the 
nobility, the more so the higher the hereditary rank of a person was, to 
enter the court service and the patrimonial bureaucracy for the sake of 
preserving social status and career chances. Thus the nobility became 
almost completely a "court nobility" (.dvorianstvo, from dvor: court). 



1 8 ] Tsarist Patrimonialism 1067 

The importance of private landownership as a basis of social rank 
declined. The voichinniki, the holders of a votchina, an estate which had 
not originally been granted for services rendered but inherited from the 
ancestors <is allodial property, were displaced by the fo me shchiki, whose 
name has today become the exclusive term for the "lord of the manor." 
Social rank was determined not by the ownership of a "noble" estate but 
by administrative rank, whether personally acquired or inherited. Tsarist 
patrimonialism shrewdly used this system which linked all social power 
with services for the ruler. The origins of this linkage are to be found 
in a combination of 1) the institution of the royal following, which will 
be analyzed later, and 2) sib solidarity which endeavored to appropriate 
for the whole sib the service rank, once it was acquired, and the oppor- 
tunities connected with it. Peter the Great, when faced with this condi- 
tion, tried to simplify matters by burning the lists of family rank (raz- 
riadnaia perepis'), which contained the claims of the noble families, and 
by putting in their place the chin scheme, which was almost completely 
based on the actual holding of office. This was an attempt to eliminate 
the*sib honor without creating a status solidarity directed against the 
Tsar; up to that time the sib honor had hindered the development of 
status solidarity just as much as the Tsar's interests in the free selection 
of his officials. The policy was successful. The nobility remained deeply 
split, through ruthless competition insofar as it strove for the social rank 
of the chin, and through animosity and hatred toward the chinovnik — 
the general name for officials — insofar as it remained a purely landed 
aristocracy. The monopoly of serf ownership did not create a solidary 
status group, since the competition for chin interfered and since only 
the employ in the Tsar's service provided the great incidental oppor- 
tunities for enrichment. 

In this respect the situation was the same as in the late Roman 
and Byzantine empire, in their Babylonian, Persian and Hellenistic 
predecessors and Islamic successors: There manorial patrimonialism — 
which did not exist at all in China — resulted neither in a definite nexus 
between landowners and state offices nor in the rise of a homogeneous 
manorial aristocracy, no matter how many incipient phenomena existed. 
In the late Roman empire" the increasingly important land-owning class 
of the possessores confronted a socially quite distinct stratum of officials, 
divided into ranks according to the level of benefice-revenues. The same 
disconnected juxtaposition of landed nobility and patrimonial officialdom 
can be observed in the early Oriental and the Hellenistic empires. In the 
Islamic empires, corresponding to their theocratic character, social rank 
was conferred first of all by the profession of the Islamic creed, and 
office opportunities depended upon religiously controlled education and 



I O 6 8 PATRIARCHAL AND PATRIMONIAL DOMINATION [ Ch. XII 

upon the personal favor of the ruler; this did not give rise to permanent 
and enduringly effective aristocratic monopolies. 



1 9. Patritnonialism and Status Honor 

On this basis one fundamental feature of medieval Western aristoc- 
racy could not develop at all: a central guide to social conduct in the 
form of a distinctive traditional ethic re-enforced by education; this ethic 
made personal relations central to the style of life and impressed every 
individual with the obligations of a status honor that was jointly held 
and thus a unifying bond for the status group as a whole. Numerous 
status conventions developed in Russia as weD among the strata of 
honoratiores in those empires. But it cannot be ascribed to the above- 
mentioned ambiguous basis of social rank alone that these conventions 
could not serve as a uniform ethical guide for "honorable" conduct. 
They merely provided a framework for the defense of economic interests 
or the undisguised striving for social prestige and failed to offer to the 
notables an elementary internalized standard of self-assertion and of 
proving ones own honor. The individual's social honor and his relation 
to the lord were either without any inner connection, as in the case of 
the autonomous honoratiores, or simply amounted to career opportunities 
which merely appealed to the desire to count for something, as in the 
cases of the court aristocracy, the chin, the mandarins and all kinds of 
positions depending exclusively upon the ruler's favor. On the other 
hand, appropriated benefices of all types were indeed a suitable basis for 
a sense of office and status dignity in the manner of the noblesse de 
robe, but not for a personal "honorable" relationship to the lord and a 
corresponding ethos. 

The Occidental mtnisterales, whose social honor depended on the 
lord's favor, and the English gendeman of the squirearchy, whose social 
honor was determined by autonomous notability, were both, although in 
different ways, bearers of a peculiar, personal sense of dignity whose 
roo£ was personal honor, not only the prestige of office. In the case of 
the ministeriales it is obvious and in that of the English gendeman it 
can easily be seen that their basic attitudes were influenced by Occi- 
dental knighthood. The former group merged completely with the 
knighdy stratum; the English gendeman, on the other hand, increasingly 
absorbed bourgeois traits into his ideal of manliness and his style of life, 
thus modifying his medieval knighdy features as the demilitarization 
of the notability progressed. Eventually there emerged in the Puritan 
gendeman a type equal in rank to the old squire but of very hetero- 



ig ] - Patr'imonialism and Status Honor 1069 

geneous provenience; this resulted in the most diverse mutual adjust- 
ments. But it remains true that for both strata feudal knighthood was the 
original, specifically medieval center of orientation. 

The knight's conduct was molded by the feudal concept of honor 
and this in turn by the notion of vassalic fealty; this was the only type 
of status honor conditioned on the one hand by a common and in- 
ternalized ethos and on the other by an external relationship to the 
lord. Since the specific feudatory relationship is always extrapatrimonial, 
it transcends in this respect the boundaries of patrimonial structures of 
domination. But it can easily be seen that, systematically, the feudatory 
relationship is best treated as an extreme marginal case of patrimoniaiism, 
since it is so much shaped by the purely personal loyalty bond with the 
■ lord and since it appears as a "solution" to a specific practical problem, 
namely that of political domination by a patrimonial prince over, and 
with the help of, local patrimonial lords. 



NOTES 

1. The following four chapters have not been available in previous transla- 
tions, with the exception of sections of the chapter on charisma. The editors' ma- 
jor effort has been the translation of the text and the verification of ambiguous 
historical references, which required considerable background research. However, 
the notes have been held to a minimum, since many of Weber's sources for the 
following chapters can be found in the notes to the Sociology of Law (ch. VIII) 
and The City (ch. XVI). All notes, unless otherwise marked, are by Roth. 

On the controversies about the origin of the notion of patrimoniaiism and the 
actual existence of a patrimonial state in German history see Otto Brunner, Land 
vnd Herrschaft (Vienna: Rohrer, 1959), 4th ed., 146-64, For Bnraner's treat- 
ment of the relationship between sociology and history see his Neue Wege der 
Soxkdgexkichte (Gdttingen; Vandenhoeek, 1956}. Brunner deals with Weber in 
both work*. 

2. Weber probably refers to Eberhard Gothein, who lived fa Heidelberg 
since 1904; he was the author of Die Kvhmiimt wicklung S&diUdiens in Einzetdmr- 
steUungen (,iBS6^) and of Die RenoissmcetwSAdHalien (sec. ed.', 1924). (W) 

3. See Kurt Sethe, Die dUdgyvtischen Pyntntiderttexte (Leipzig 1908-22), 
4 vols. This is still a standard work. (W) 

4. On the Prussian Gutshezirk, a rural district exempted from the ordinary 
village association and administered by the Junker owners, see infra, ch. XVI:v, 
n.9. 

5. One of Weber's major sources about English constitutional history were 
the writings of Julius Hatschek; see his EngUsches Staatsrecht (Tubingen 
1905/6), 2 vols, and EngUsche Verfassungsgeschichte (Munich 1913). Weber 
also knew the first comprehensive history of the English constitution by the lib- 
eral scholar arid parliamentarian Rudolf von Gneist, The English Constitution 
(189O. 



CHAPTER 



XIII 



FEUDALISM, STANDESTAAT 
AND PATRIMONIALISM 



i . The Nature of Fiefs and Types of Feudal 
Relationships' 

The structure of feudal relationships can be contrasted with the wide 
realm of discretion and the related instability of power positions under 
pure patrimonialism. [Occidental] feudalism (Lehensfeudalitat) is a 
marginal case of patrimonialism that tends toward stereotyped and fixed 
relationships between lord and yassal. As the household with its patri- 
archal domestic communism evolves, in the age of the capitalist hour-, 
geoisie, into the associated enterprise based on contract and specified 
individual rights, so the large patrimonial estate leads to the equally , 
contractual allegiance of the feudatory relationship in the age of knightly 
militarism. The personal duty of fealty has here been isolated from 
household loyalties, and oh its basis a cosmos of rights and duties has 
come into being, just as the purely material relationships were isolated 
when the enterprise developed. We shall see later that the feudal alle- 
giance between lord and vassal must also be interpreted as a routiniza- 
tion of a charismatic relationship and that from this viewpoint certain 
specific features of feudal allegiance find their proper systematical loca- 
tion. Here, however, we will attempt to comprehend the internally most 
consistent form of the feudal relationship. For "feudalism" and also the 
"fief can be defined in different ways. 

If we define feudalism as the rule of a landed military aristocracy, 
then Poland, for example, was "feudal" in the most extreme sense. 
But Poland was unlike a "feudal" realm in the technical sense, for she 
lacked the decisive element: the feudatory relationship. For the struc- 
tural development — or lack of it — of the Polish Kingdom it was most 

I1070I 



i ] Nature of Fiefs and Types of Feudal Relations 1071 

important that the Polish aristocrats were allodial landed notables. The 
resulting "republic of aristocrats" represents the extreme opposite of 
Norman centralized feudalism. 

The Greek polis of the pre-classic period and even the early stages 
of democracy at the rimes of Cleisthenes can be called "feudal," because 
citizenship was always identical with the right and the duty to bear 
arms, the citizens were generally landowners, and the power of the 
dominant stratum of honoratiores rested on manifold loyalty relation- 
ships to clients. This was also true of the Roman Republic up to its last 
period. In nearly all of Antiquity the connection between land grants 
and military obligations toward a personal master, a patrimonial prince, 
or an association of citizens has been of basic importance. 

If the "fief" is defined as any grant of rights, especially of land use 
or of political territorial rights, in exchange for military or administrative 
service, then the term can be applied to the service fief of the minis- 
teriales [in the German Middle Ages], perhaps to the early Roman 
precariwn, certainly to the land given to the laeti, who were settled in 
the Roman Empire after the Marcomannic Wars, and later to land 
which was directly granted to alien tribes upon the condition of military 
service; the term will apply all the more to the land of the Cossacks, and 
also to the soldiers' land that is found all over the ancient Orient and 
in Ptolemaic Egypt) and to similar world-wide phenomena in all epochs. 

Most of these cases involve the creation of hereditary livings which 
establish either a direct patrimonial dependence or at least a liturgical 
attachment to obligations and thence to the land. Moreover, social posi- 
tions may be established by an autocratic ruler which, in relation to 
other "free" strata, are privileged through freedom from taxation and 
special land rights (Bodenrechi). In return, the incumbents are obliged 
to undergo military training and to be at the lord's arbitrary or limited 
disposal for military or administrative purposes. The setding of warriors, 
in particular, is the typical form of securing economically dispensable 
and readily available military forces under a natural economy, which . 
cannot maintain a mercenary army; these military forces come into being 
as soon as the standard of living, the intensity of agricultural and non- 
agricultural work and the development of war technology make the 
mass of the population indispensable as well as inferior in their military 
capabilities. Many kinds of political associations resort to such arrange- 
ments. One type is the originally inalienable plot of land (*A%>ov) in 
the Hellenic polis of hoplites; their holders were obligated to an associa- 
tion of citizens. A second type is the Egyptian "warrior caste" (/k£xvO, 
which was obligated to the patrimonial prince; and a third type is the 
land grant to "clients," who are obligated to a personal master. All 
despotic regimes of the ancient Orient and also the cleruchies of the 



I O 7 2 FEUDALISM, STANDESTAAT AND PATBIMONIAUSM [ Ch. XIII 

Hellenistic period have used this type of military manpower in one way 
or another. We will see later that occasionally it was still used by the 
Roman nobility. 

The last-mentioned cases are functionally and also legally similar 
to the fief proper without being the same, because even privileged 
peasants remain, socially speaking, peasants or, at any rate, "common 
people"; this then is a kind of feudal relationship on the level of 
plebeian law. By contrast, the relationship of the ministeriales to the 
lord has originally a patrimonial basis and hence is different from that 
of the fief-holder. 

Genuine feudatory relationships in the full technical sense always 
exist a) between members of a stratum which is hierarchically gradated," 
but stands above the mass of freemen, forming a unit against them; and 
b) by virtue of the feudatory relationship individuals are related to one 
another through a free contract, not through patrimonial dependence. 
Vassalage does not diminish honor and status of the vassal; on the con- 
trary, it can augment his honor, and commendation is not submission 
to patriarchal authority, although its forms are borrowed from it. 

We can now classify "feudal" relationships in the broad sense of 
the word as follows: (i) "Liturgic" feudalism: soldiers provided with 
land, frontier guards, peasants with specific military duties (cleruchs, 
laeti, limitanei, Cossacks); (2) "Patrimonial", feudalism, a) "manorial": 
levies of cdloni (for example, of the Roman nobility as late as the Civil 
War, and of the ancient Egyptian pharaoh); b) "servile": slaves 
(ancient Babylonian and Egyptian armies, Arabian private troops in the 
Middle Ages, Mamelukes); c) gentile: hereditary clients as private 
soldiers (Roman nobility); (3) "free" feudalism, a) "vassalic": only by 
virtue of personal fealty without the grant of manorial rights (most 
Japanese Samurai, the Merovingian tntstis); b) "prebendal": without 
personal fealty, only by virtue of granted manorial rights and tax 
revenues (Middle East, including the Turkish fiefs); c) "feudatory" 
(lehensmassig): personal fealty and fief combined (Occident); d) 
"urban" (stadtherrsckaftlicky; by virtue of the communal association of 
warriors, based on manorial land allotted to the individual (the typical 
Hellenic polis 'of the Spartan type). At this point we will deal primarily 
with the types of "free" feudalism and, among these, primarily with 
the most consequential: Occidental feudalism (Xehensfeudalismus); we 
will draw on the other types only for comparative purposes. 

The full fief is always a rent-producing complex of rights whose 
ownership can and should maintain a lord in a manner appropriate to 
his style of life. Primarily seigneurial rights and income-yielding political 
powers, that is/- rent-producing rights, are conferred upon the warrior. In 
the feudal Middle Ages the gewere of a piece of land belonged to the 



J ] Nature of Fiefs and Types of Feudal Relations 1073 

recipient of the rent. Wherever the hierarchy of fiefs was strictly organ- 
ized, these feudal sources of rent were registered according to their 
yield. The Turkish "fiefs," which were classified after the model of the 
Sassanids and Seljuks, were registered according to their yield in asfer, 
and the provisioning of the Japanese vassals (Samurai) according to the 
kokudaka (rice rent). Inclusion in the English "Doomsday Book," as it 
was later called, did not amount to a feudal matriculation of fiefs, but 
this register owed its origin to the especially tight centralization of the 
English feudal administration. 

Since manors are the normal object of a fief, every genuine feudal 
structure has a patrimonial foundation. Moreover, where offices them- 
selves are not treated as fiefs, the patrimonial order normally continues 
to exist — at least wherever the feudal system, as it happens frequently, 
is incorporated into a patrimonial or prebendal state as part of its ad- 
ministration. The Turkish cavalry which held fief-like prebends existed 
next to the patrimonial Janissaries and the partly prebendal organization 
of pffices, and therefore remained itself semi-prebendal. 

Excepting Chinese law, the granting of seigneurial rights from the 
estate of the king can be found in the most diverse legal areas. In the 
realm of the Rajputs in India, especially in Udaipur, the ruler until re- 
cently bestowed territorial and judicial rights upon members of the 
dominant clan "in return for military services; they in turn paid homage 
to him and renewal fees in case of his death, and they risked the loss 
of their rights if they violated their duties. The same approach to land 
and political rights — an approach originating in the joint control of the 
ruling warriors over conquered land — occurred very often, and prob- 
ably was once the basis of japan's political constitution. On the other 
hand, we can find numerous phenomena typified by the Merovingian 
royal land grants and by the various forms of beneficium: Almost always 
they presuppose the rendering of military aid and possible revocability in 
case of default, the extent of which is often ill-defined. Substantively, 
the numerous Oriental land-grant types that were similar to hereditary 
leases also had a political purpose However, neither fits the concept of 
the "fief," as long as they are not related to the very specific fealty of 
the vassal. 



2. Fiefs and Benefices 

The fief can also be distinguished legally from the benefice, al- 
though we will see soon that the transitions are fluid. The benefice is a 
lifelong, not a hereditary, itmuneration for its holder in exchange for 
his real or presumed service-. >he remuneration is an attribute of the 



10 7 4 FEUDALISM, STANDESTAAT AND PATRIMON1ALISM [ Ck. XH1 

office, not of the incumbent. Therefore, in the Occident during the 
early Middle Ages the benefice was not, like the fief, forfeited in case 
of the ruler's death — as U. Stutz has emphasized 1 — , but it reverted to 
the ruler upon the death of the benefice-holder; at the zenith of the 
Occidental Middle Ages a non-hereditary fief came to be considered 
inferior. The income of the benefice, accruing to the office, not to the 
person, is only used and not personally owned — the Church, for ex- 
ample, drew certain conclusions from this in medieval times — , whereas 
the fief is the vassal's personal property for the duration of the feudatory 
relationship; however, it remains inalienable since it is tied to a highly 
personal relationship, and indivisible since it is intended to preserve the 
vassal's service capacities. The benefice-holder was often, and sometimes 
generally, relieved from paying his administrative costs, or portions of 
the income from the benefice were set aside for this purpose. But the 
vassal had always to pay from his own resources for the costs of the 
$ce granted to him. 
However, such differences were not really pervasive. For example, 
diey did not exist under Turkish nor under Japanese law; however, we 
will note soon that these two cases are not genuine examples of feuda- 
tory law, On the other hand, we have observed that the nonheredirary 
character of benefices was very often fictitious; the appropriation of 
benefices — especially of many French benefices — reached a point where 
even the heirs received a compensation for the loss of revenue drawn 
from the benefice. The decisive difference must be located elsewhere: 
Wherever the benefice had lost all traces of patrimonial origin, the 
benefice-holder was a simple usufructuary or rentier who had certain 
official duties and was to that extent akin to the bureaucratic officials. 
In contrast, the free vassal, who stands outside any patrimonial 
subordination, is subject to a very demanding code of duties and honor. 
In a peculiar fashion, the feudatory relationship merged seemingly most 
contradictory elements in its most developed form: on the one hand, 
strictly personal fealty, on the other contractual stipulation of rights and 
duties, their depersonalization by virtue of the rent nexus, and finally 
hereditary control of the possession. Wherever the original meaning of 
the relationship had been preserved, "hereditariness" was not a com- 
• mon "inheritance/' To begin with, the pretender had to be personally 
qualified for vassalage before he could claim the fief. Furthermore, he 
had to enter personally into the fealty relationship. Just as the son of a 
Turkish vassal had to request a new berat in due time from the 
heglerbeg and, if necessary, through him from the Sublime Porte, so 
the Occidental aspirant had to void the fief and to ask the lord for being 
invested with it after performing commendation and the oath of homage. 



2 ] Fiefs and Benefices i 075 

To be sure, the lord was obliged to accept the vassalage if the aspirant's 
qualification had been established, but vassalage had a contractual char- 
acter and could be terminated by the vassal at any time upon yielding 
the fief. Furthermore, the lord could not arbitrarily impose obligations 
upon the vassal; rather their typical extent depended upon contractual 
obligations of fealty and loyalty which were shaped by a code of honor 
binding upon both parties. Thus the typification of the obligations and 
the substantial safeguards of the vassal's interest were linked with a 
highly personal relationship to an individual ruler. This developed to 
the highest degree in Occidental feudalism, whereas the Turkish feudal 
system remained much more prebendal with regard to claims of inheri- 
tance, since the power of the Sultan and the heglerbeg continued to he 
largely arbitrary despite all of the rules and regulations. 

Japanese feudalism, too, does not represent a complete feudatory 
system. 3 The Japanese daimyo was not a feudatory vassal, but a vassal 
committed to supply definite war contingents, to provide guard units and 
to pay a fixed tribute; within his own district he exercised administra- 
tive, judicial and military authority practically in his own name, in the 
'manner of a territorial ruler. He could be transferred to another district 
for disciplinary reasons. That he was not a vassal as such is demonstrated 
by the fact that the Shogun's real vassals (fudaf), if daimyos-districts* 
had been granted to them, could suffer transfer (Jkunigaye), because of 
their personal dependence, for reasons of political expediency without 
any default on their own part. This very fact also proves that the 
district granted to them was an office, not a fief. These daimyos were 
forbidden to establish alliances, to enter into relations of vassalage with 
one another, to conclude treaties with foreign powers, to carry on feuds 
and to build fortresses; their allegiance was assured through the institu- 
tion of the sankinkotai — the requirement of periodic residence in the 
capital. 

The samurai, on the other hand, were personally free private soldiers 
of the individual daimyos (or of the Shogun himself); they were main- 
tained with rice allowances, rarely with land grants; they originated 
partly in the voluntary following of warriors, partly in office-holders 
entitled to court service, who developed a practically free contractual 
relationship, just as the ministeriales of the German Middle Ages; they' 
differed greatly in their social status, from the small rentier who gained 
his rice allowance by serving in the lord's manor, sleeping with up to 
four others in one room, to the practically hereditary incumbent of a 
court office. The samurai were a class of free retainers, partly plebeians 
and partly courtiers, not vassals but benefice-holders, whose position was 
more similar to that of the Frankish antrustiones than to that of a 






I076 FEUDALISM, STANDESTAAT AND PATRIMONIAXISM [ Ch. XIII 

medieval feudal benefice-holder. The relationship to the lord was en- 
dowed with a sense of knightly loyalty, which was analogous to, but 
more intense than, Occidental fealty; this intense attachment grew out 
of the transformation of the followers' loyalty into a glorified free vassal- 
age, and out of the warrior s concept of status honor. 

Finally, the special features of the Islamic warrior's fief can be 
explained, as C. H. Becker has recently shown, on the basis of their 
origin in a mercenary army and in tax-farming.* Unable to pay his 
mercenaries, the patrimonial ruler had to give them direct access to the 
tax payments of his subjects. He also had to transfer to the military 
official (eroir) the position of the tax official ('amiO, w ^° drew a fixed 
remuneration; this office was originally independent of the military 
office in accordance with the typical patrimonial division of powers 
familiar to -is. Three different elements merged into the concept of the 
iktah (beneftcium): 1) Tahhil, the farming of revenues of a village or 
a district to a ntuktah (tax-farmer); 2) Kata'i', the fief? — called sawafi in 
Mesopotamia — , grants of land to deserving or indispensable supporters, 
and finally 3) the possession of the subjects' taxes, which were seized 
as security by, or assigned to, emirs and soldiers, especially Mamelukes, 
in order to cover their arrears of pay. The incumbent of an iktah had 
to serve as a soldier and was supposed to surrender the surplus of taxes 
over his pay — which he rarely did. The arbitrary exploitation inherent 
in this type of control in an early case motivated the vizier Nizam 
ai-Mulk — under the Seljuks in Mesopotamia toward the end of the 1 ith 
century — to assign land definitely to the soldiers and emirs as benefices 
and to give up all claim to tax surpluses, in return for their military 
service. The Mamelukes adopted the same system in Egypt in the 14th 
century. The soldiers, who turned from tax-farmers or mortgagees into 
landowners, now developed a personal interest in the improvement of 
their subjects' land; this also did away with the friction between the 
military and the fiscal authorities. The Ottoman stjwj/ii-benefices are a 
modification of this system of military benefices. Its origin in the decay- 
ing tax system and the mercenary army of a state based on a money 
economy, organized on the ancient pattern, distinguishes these military 
benefices radically from Occidental feudalism developed on the basis 
of a natural economy and the leader's following. Oriental feudalism was 
bound to lack all those features that derive from the loyalty of followers, 
in particular, the norms of the specific as well as personal fealty of the 
vassal; conversely, Japanese feudalism with its exclusively personal alle- 
giance lacked the manorial component of the benefieium. Hence both 
types differ, in exactly opposite direction, from that combination of 



2 ] Fiefs and Benefices i 077 

personal fealty, derived from the follower's loyalty, and benefice which 
accounts for the distinctiveness of Occidental feudalism. 



3. The Military Origin of Feudalism 

Hie widespread phenomenon of the fief was primarily of military 
origin. The Turkish fief-benefice committed its holder to live on the 
land and, daring the Empire's great expansion, was considered forfeited 
if the holder had not served in the army within the last seven years; the 
claims of the heirs were also partly dependent on the proof of active 
military service. In the Orient as well as the Occident, the fief-benefice 
normally served the establishment of a cavalry, whose members had 
identical equipment and were continuously trained. The military effec- 
tiveness of these warriors, who were personally devoted to their lord, 
was enhanced by their notion of honor. This cavalry was a substitute 
for the levy of freemen and sometimes also for the king's charismatic 
following (trKSffs). The Frankish fiefs originated on secularized church 
land in defense against the Arabian cavalry. The Turkish fief-benefices, 
too, were not concentrated in the Ottomans' old peasant setdements On 
Anatolia); they were mostly landed estates, managed by Rayas, in areas 
conquered at a later time (especially in Rumelia). Wherever it substi- 
tuted for the levy of freemen, the feudal army was a function of intensi- 
fied economic activities and of expanding boundaries in an inland state 
with a natural economy. The same was true of the mercenary army in 
maritime states or inland states with a money economy. For the mass of 
the landowners increasing pacification and intensified agriculture dimin- 
ished both their familiarity with military tasks and their opportunities 
for military training; this reduced the economic dispensability of small- 
holders. The growing preoccupation of men with work originally done 
by women tied them to the land, and the increasing differentiation of 
property through division or accumulation of land destroyed the pos- 
sibility of identical military equipment; the growing masses of small- 
holders could no longer equip themselves — the precondition of every 
army of freemen. In particular, campaigns at the far-away peripheries of 
a great empire could not be conducted with a peasant levy, just as an 
urban militia could not control large overseas areas of expansion. And 
just as the mercenary army replacing the citizens' army substituted 
professional soldiers for militia men, so the transition to the feudal army 
resulted initially in identical equipment of high quality. In its Occiden- 
tal beginnings, horse and arms were pert oi the fief; self-equipment 
came later when this institution became widespread. 



IO78 FEUDALISM, STANDBSTAAT AND PATRIMONIALISM [ Ch. XUl 

The specific element that determines the vassal's behavior under 
fully developed feudalism is the appeal not only to his obligations of 
fealty, but to his sense* of high status which derives from an exalted 
conception of honor. The warrior's sense of honor and the servant's 
faithfulness are both inseparably connected with the dignity and con- 
ventions of a ruling stratum and buttressed by them. Thus, the peculiar- 
ity of Occidental, fully developed feudalism was largely determined by 
the fact that it constituted the basis of a cavalry — in contrast to the 
plebeian infantry-fiefs of the clients, cleruchs, f^x^i, and ancient 
Oriental fief-holding soldiers. We will frequently encounter the ramifica- 
tions of this factor. 



4 . Feudal Legitimation 

The feudal system produces men who can equip themselves and 
handle weapons professionally, who in war identify their own honor 
with that of the lord, who see in the expansion of his power the chance 
to secure fiefs for their heirs and, above all, who find the only basis for 
the legitimacy of their awn fief in the preservation of his personal au- 
thority. Everywhere this last element has been eminently important for 
the transition to feudalism, and especially for the extension of feudalism 
from its original domain, military service, to public offices. In Japan the 
ruler attempted in this fashion to emancipate himself from the domi- 
nance of lineage groups which had familial charisma. In the Frankish 
empire the attempts of the patrimonial state to preserve the sovereign 's 
power through limiting tenure in office and through the system of emis- 
saries were again and again subverted; the violent ups and downs in 
the power struggle of the aristocratic cliques in the Merovingian empire 
were eventually terminated by the strong arm of a central official, but 
this resulted in the overthrow of the legitimate dynasty in his favor. 
The bestowing of offices as fiefs under the Carolingians provided rela- 
tive stability; from the 9th century on this policy was definitely carried 
through, after the Carolingians had at first used the vassals as counter- 
vailing power against the Merovingian trustis and after the strictly 
personal fealty of all office-holders had emerged as the only support of 
the royal thrones during the struggles of the kings in the divided empire. 
Conversely, the destruction of Chinese feudalism — for a long time 
lamented as the really sacred order of the fathers — by the prebendal- 
bureaucratic order, which since has consistently followed its own 
momentum, was propelled by the equally typical motive for eliminating 
the feudal office: the motive of restoring full power to the sovereign. 



4 ] Feudal Legitimation 1079 

For the quite considerable guarantee of the ruler's position through the 
, vassal's knightly honor is acquired at the price of a great decline of his 
power over the vassals. Fully developed Feudalism is the most extreme 
type of systematically decentralized domination. 

To begin with, the lord has only limited "discipline" over the vas- 
sal. The only reason for taking back the fief is "felony": the violation 
of fealty toward the lord through failure to fulfil the feudatory obliga- 
tions. However, the concept of "felony" is very vague, and normally 
this does not benefit the lord's arbitrariness but the vassal's position. 
For even where feudal courts composed of vassals did not exist and 
hence vassals were not organized as members of an autonomous cor- 
porate group (as in the Occident), the generalization is fully valid that 
the lord is powerful vis-a-vis the individual vassal, hut powerless with 
regard to the interests of all vassals; he must be sure of the support or 
at least the toleration of the other vassals before he can safely proceed 
against any one of them. Since the feudatory relationship is Founded 
on mutual loyalty, an arbitrary act of the lord has, as a "breach of 
faith," an inherendy destructive effect upon his relations with all vassals. 
This fairly rigid limitation of the ruler's disciplinary powers over his 
own vassals, is made more palpable by the fact that he often has no 
direct control over the subvassals of his own vassals. 

Under fully developed feudalism there was a "hierarchy" in two 
respects: First, only those setgneurial rights, especially only those 
landed estates, the possession of which could be derived from the 
supreme ruler as the source of all power, were transferable as full 
fiefs; second, there was a social rank-order (such as the Heerschild of 
the SachsensfiegeV) according to the level of sub-infeudation which 
the respective fief-holder occupied relative to the supreme ruler. But 
the extent of the ruler's direct control over subvassals of his own vassals 
remained very problematic because, as in every feudatory relationship, 
the one between vassal and subvassal was also strictly personal and 
■ hence could not easily be canceled by any felony of the first vassal 
against his lord. In its classic period the Turkish feudal system achieved 
a relatively strong centralization dnougli :he quasi-prebendal definition 
of the fief and of the beglerbeg's position in relation to the Sublime 
Porte. But the Occidental reservation: salva fide dehita domino regi 
[with the exception of the fealty owed to the overlord] in the oath 
of homage did not preclude at the least a conflict of conscience for a 
subvassal even in cases in which his lord's felony was clear, since he was 
faced with a dual obligation of loyalty. In any case, he always con- 
sidered himself entided to examine for himself whether the overlord 
of his own lord discharged his obligations. 



1080 FEUDALISM, STANDESTAAT AND PATJUMONIALISM [Ck.Xlll 

For the centralists development of England an arrangement taken 
over from Normandy by William the Conqueror became crucial: All 
subvassals were directly oath-bound to the king and considered his 
men; furthermore, subvassals who did. not obtain legal satisfaction from 
their lord were not forced (as in France) to go through various stages 
of appeal of the feudal hierarchy but could go directly to the king's 
courts; thus, the feudal hierarchy in England was not identical, as in 
most other countries, with a jurisdictional hierarchy in matters of feudal 
law. In Normandy and England, just as under Turkish feudalism, this 
tight organization and the firm bonds between lord and vassal were 
due to the fact that the feudal polity was constituted on conquered 
territories — similar to the church which established its strictest hier- 
archical organization in mission territories. However, even then con- 
flicts of ..conscience on the part of subvassals were not completely absent. 
For this reason too attempts were frequently made to limit subinfeuda- 
tion or at least its frequency on lower levels; by contrast, in Germany 
the limitation of the Heerschilde derived from general principles of the 
office hierarchy. 

On the other hand, fully developed feudal law stipulated that all 
objects which had once been included in a fief would have to be granted 
again in case of escheat, and it also established the principle: nvile 
terre sans seigneur. Superficially, there is a correspondence between the 
bureaucratic principle and the feudal rule that all traditional feudatory 
units must be bestowed upon vassals by the kirg, but the intent is , 
fundamentally different. Under the bureaucratic system the mandatory 
filling of offices is intended as a legal protection for the ruled, but the 
compulsory granting of fiefs cut off most of the vassals' subjects from any 
direct relation to the supreme ruler; furthermore, this feudal practice 
establishes as a collective right of the vassals that the lord cannot ignore 
the feudal distribution of power for the sake of his own interests by 
taking power back. into his hands; rather he must utilize again all exist- 
ing fiefs for the purpose of equipping the vassals' descendants. Accord- 
ing to the familiar scheme, the vassals could press their demands with 
particular strength whenever they were organized into a legally au- 
tonomous groups and especially when legal proceedings in which they 
participated as members of a feudal court Qhehenskurie) dealt with 
disputes and legal business concerning the obligatory granting of an 
inheritance, escheat and renewal of fiefs. In this case the demand foi 
fiefs was monopolized in addition to the means for protecting the supply 
of fiefs. 

Monopolization proceeded by virtue of the continuous mereas'j of 



4 ] Feudal Legitimation i o 8 i 

demands upon the personal feudal qualifications of the aspirant, just 
as it does in the bureaucratized community by virtue of the aspirants' 
demand for more and more specialized examinations and ever more 
diplomas as a condition of employment. The feudal qualification, how- 
ever, was the polar opposite of the qualification for bureaucratic office, 
which is based on specialized knowledge. Bureaucracy and patrimonial 
officialdom are based on social levelling in the sense that as pure types 
they are only concerned with personal qualifications, the one with 
substantive expertise, the other with purely personal characteristics; 
both types disregard status differences and in fact constitute the specific 
instrument of their negation — irrespective of the circumstance discussed 
earlier that the bureaucratic and the patrimonial strata, too, easily be- 
come carriers of a distinct status honor with all its consequences. This 
social honor was here a result of the power position of these strata. 
But the essence of feudalism is status consciousness, and it increasingly 
perfects this very characteristic. Everywhere the vassal (in the specific 
meaning of the word) had to be a free man, not subordinate to the 
patrimonial power of a lord. The Japanese samurai too changed his 
lord at will. At first, of course, the vassal's characteristic qualification 
was most of the time merely his professional capability, his military 
proficiency; this it remained, for example, under Turkish feudalism; 
even Rayas could receive fiefs if they had rendered the requisite military 
services. However, in its fullest elaboration the feudatory relationship 
can only be an attribute of a ruling stratum, since it rests on emphatic 
notions of status honor as the basis of fealty and also of military fitness. 
Therefore, the requirement of seigneurial ("knightly") conduct is added 
everywhere, especially the injunction against any kind of remunerative 
labor which would detract from military training and be degrading. 

When the opportunities for the support of the descendants begin 
to decrease, the monopolization of fiefs and offices — and later particu- 
larly of the prebends (Stiftspfriiriden') for the maintenance of relatives 
without proper means — sets in with full force. The increasing influence 
of status conventionalism comes on top of it, and the claim is advanced 
that the aspirant for a fief or a prebend must not only live like a knight, 
but also be of knightly descent. That means, he has to be the offspring 
of a minimum number of knighdy ancestors — at first, knighdy parents, 
then knightly grandparents: the "four ancestors." Finally, in the regula- 
tions of the tournaments and convents of the late Middle Ages monopo- 
lization reached a point where sixteen ancestors were required and the 
urban patriciate was excluded because it shared authority with the 
guilds and sat with them in die same councils. 



I082. FEUDALISM, STANDESTAAT AND PATRIMONIAI.ISM [ Ch. Kill 

5. The Feudal Division of Powers and Its Typification 

The strict legal autonomy (JLigenrecht) of the individual vassal 
paralleled the claim of all qualified aspirants on the possession of all 
fiefs, a claim which was not everywhere recognized hut everywhere 
advanced in one fashion or another. The fact that in the classic areas 
of feudalism the vassal's right was contractual and subject to renewal, 
hut at the same time inheritable according to established norms, stereo- 
typed the division of powers far beyond the degree attained under the 
prebendal structure and made it highly inelastic. This very permeation 
of the whole system with the guarantee of the fief-holder's position 
through a bilateral contract was very important for the development 
of feudalism; this guarantee transcended the mere granting of privileges 
by the lord and, in contrast to the appropriation of benefices, it was 
not just a purely economic matter. It turned feudalism into an approxi- 
mation of the Uechtsstaat [constitutional government], at least in com- 
parison to pure patrimonialism with its juxtaposition of traditional 
prescription and appropriated rights, on the one hand, and arbitrariness 
and discretion on the other. Feudalism is a "separation of powers," but 
unlike Montesquieu's scheme, which constitutes a qualitative division 
of labor, it is simply a quantitative division of authority. The idea 
of the social contract (Staatsvertrag) as the basis of the distribution 
of political power, an idea which led to constitutionalism, is anticipated 
in a primitive fashion. Of course, not in the form of a pact between the 
ruler and the ruled or their representatives — under which the subjection 
of the ruled is conceived as the source of the ruler's right — , but in 
the essentially different form of a contract between the ruler and those 
whose authority derives from him. Type and distribution of powers are 
fixed through this contract, but there is no general riglement and no 
rational differentiation of individual jurisdiction. For the powers of the 
office are personal rights, contrary to the bureaucratic case; their extent 
is determined positively by the official's personal grant and negatively 
by the subjects' exemptions, immunities and privileges, whether they 
be granted or sanctified by tradition. Only this juxtaposition and the 
mutual limitation of the subjective right of one power-holder by the 
opposed rights of another produces — very similar to the stereotyped and 
appropriated patrimonial offices — that power distribution which would 
correspond to some extent to the bureaucratic notion of official jurisdic- 
tion. For in its genuine sense this notion does not exist under feudalism, 
and therefore the concept of the "agency" (Jiehorde) is also absent. 

At first only a section of the vassals was granted political powers, 
and that means most of all: judicial powers. In France these were the 



5 ] Feudal Separation of Powers <s Its Typification 1083 

so-called seigreun htsiwiers. The ruler could divide his own judicial 
powers by gianiin.g one part of ihem to one vassal and other parts to 
another vassal. Typical wns the division into higher jurisdiction — in- 
cluding capital judicature (Qlutbxnn) — and lower jurisdiction, and their 
distribution among different vassals ."This docs net mean that the vassal 
who has been granted seigneurial powers which were higher in the 
original hierarchy of offices also has a higher rank in the hierarchy of 
nets, which is established according to the distance from the supreme 
lord. In principle, at least, the hierarchy of fiefs is not at all concerned 
with the hierarchy of powers granted, but only with the distance or near- 
ness from the first lord. In fact, however, the possession cf the highest 
judicial powers, especially of capital judicature, everywhere tends to 
establish its holders as a special group of princely rank (FiirstenstancT). 
This tendency had to compete everywhere with the overlapping tend- 
ency to consider the immediate feudatory relationship to the king as 
the. mark of belonging to the highest status group. This happened 
particularly in Germany in characteristic ups and downs, with which 
we cannot deal here. The result was everywhere a most intricate com- 
plex of seigneurial powers which had been fragmented through grants 
to the most diverse holders. In principle, the territorial jurisdiction of 
the Occidental lord, which was based on the grant of political rights, 
was separated from his feudatory jurisdiction over his own vassals, on 
the one hand, and from his patrimonial Qiofrechtliche) jurisdiction on 
the other. All of this resulted in the fragmentation of powers into 
numerous individual rights, appropriated on different legal grounds, 
which traditionally limited one another. Absent was the separation, so 
typical of every bureaucracy and still recognizable in the prebend, of 
person and vocation, personal property and official means of admini- 
stration. Since the income from the fief was not an office revenue, the 
differentiation between allodial and feudal possesions in the case of 
escheat and inheritance was, unlike the externally similar differentiation 
in the case of the prebend, only a stratification of inheritance. 

Furthermore, not only were all official powers and revenues of a 
vassal part of his personal rights and of his own household, but above 
all the costs of administration were personal expenditures indistin- 
guishable from those of his own household. Just as every individual, be 
it lord or fief-holding official, pursued his essentially personal interests 
on the basis of his own right, so all administrative expenditures were 
covered by his own personal services and resources or — and especially 
— by the services of the patrimonial retainers or of me "subjects'" who 
were subordinate by virtue of the political rights granted to him; thus 
the expenditures were not met . out of a rational system of taxation, 



1084 FEUDALISM, STANDESTAAT AND PATRIMONIAL ISM [ Cfe. XIII 

as under a bureaucracy or out of the ruler's household or special pre- 
hendal revenues at ]i ; u* patrimonialism. Since the tributes and services 
of the "subjects" wt z 0*^' irih, regelated by tradition, the apparatus 
was financially inelastic, ^ ? /His was aggravated by the typical practice, 
or at least universal tendency, of using the feudal association as the 
vehicle (^Tragef) of political administration; this limited very much the 
personal as well as the substantive means of power of the ruler and all 
other lords. 

To begin with, the vassals attempted eveiywhere to regulate through 
fixed norms the maximal a wiual duration of their most elementary 
obligation, for the sake of which the feudal association had been 
created: the obligation to render military service. Most of the. time they 
were successful. Moreover, the right to carry on feuds existed also be- 
tween the vassals of the same lord. The lord's power only guaranteed 
his vassals' fiefs, but nothing else. The ^ivate wars of the vassals 
against one another could of course be very detrimental to the power 
interests of the feudal lord, but beyond the stipulation that private feuds 
could at least not take place during one of the lords own military ac- 
tions no curb was successful on the European continent up to the time 
when church and cities, together wiih the king, enforced the edicts of 
peace Q'Landfriecleri'*). 

The limitations on the financial rights of the ruler were particularly 
severe. Apart from the tutelary utilization of a fief by a lord, these 
rights consisted mosdy in the vassal's obligation to subsidize the lord in 
certain cases of need;, the lord would have liked to turn these obligations 
into a comprehensive right of taxation, but the vassals set out to turn 
them into definitely fixed occasional tributes. In compensation for in- 
creasingly fictitious military duties, the tax exemption of knightly fiefs 
eventually became the normal partem until long after th« Middle Ages. 
In general, the vassals were no less successful, at least ps long as the 
lord was dependent on the feudal army, in freeing their' retainers from 
the lord's taxation, which they permitted only in exceptional cases- As 
a rule, the lord could directly raise tallagia only from his manorial and 
personal retainers. The right of escheat became increasingly impractical. 
Everywhere the extension of the right of inheritance to collateral rela- 
tives prevailed. The alienation of the fief, which of course required the 
lord's willingness to accept the new vassal, became more and more the 
rule and the purchase of his consent one of the most important feudal 
sources of revenue. However, the purchase was equivalent to the full 
appropriation of the fief, since the transfer fee came to be fixed by tra- 
dition or law. Thus, while the fealty relationship became progressively 
stereotyped and commercialized, it also lost its unequivocal ..character 






5 ] Feudal Separation of Powers & Its Typification 1085 

and practical utility as a means of power. As a free man, the vassal 
could later even take a fief from several lords; this made his support 
precarious for any one of them in case of a conflict. French feudal 
law distinguished the homagium simplex, the feudal oath with mental 
reservations as to other obligations, from the homagium ligium, the un- 
conditional oath, which was, so to speak, the first mortgage upon fealty; 
it preceded all other obligations and hence could Only be rendered to 
one ruler. For the rising power of the French monarchy it was im- 
portant that the great feudal lords were forced to render the latter oath. 
In general, however, the possibility of multilateral obligations resulted 
in their far-reaching devaluation. Eventually it became almost impossible 
to run a continuously functioning administration with the help of 
vassals. In the abstract, the vassal had the duty to help his lord not 
only with deeds but also with advice. The great vassals liked to derive 
from this duty a "right" to be heard before important decisions were 
made, and usually they succeeded since the feudal lord was dependent 
upon the morale of the feudal army. As an obligation, however, the 
vassal's advisory activity was gradually reduced, just like his military 
duty; it was quite discontinuous and therefore could not be used for the 
organization of a concrete agency (Behorde). 

Thus, the feudal association provided to the local office-holders a 
hereditary appropriation and guarantee of their seigneurial rights; 
however, for the central administration it did not offer the lord con- 
tinuously available personnel and easily forced him to adapt his actions 
to the "advice" of the strongest among his vassals, rather than helping 
him to control them. Under these circumstances all powerful vassals 
were so strongly tempted to dissolve the feudal bond altogether, that 
the only fact to be explained is why this did not happen more often 
than it actually occurred. The reason was the guarantee of legitimacy, 
which we mentioned earlier and which the vassals found in the feudal 
association with regard to their land and seigneurial rights; the feudal 
lord too was interested in this guarantee because of the advantages — 
no matter how precarious — which his rights entailed, even if they were 
fictitious. 



6. The Standestaat and the Transition from Feudalism to 
Bureaucracy 

In contrast to the system of "agencies," which are generally subject 
to enacted rules and which have equally regulated spheres of jurisdic- 
tion, the prebendal and feudal variants of patrimonialism are a cosmos 



I O 8 6 FEUDALISM, STANDESTAAT AND PATRIMONIALISM f Ch. XIII 

and, according to the circumstances, also a chaoi of concrete subjective 
rights and duties of the lord, the office-holders and the ruled; these 
rights and duties overlap and limit one another, and their interaction 
produces modes of action that cannot be reconstructed with currently 
prevalent political categories and for which the name "state" in the 
modern sense of the word is... even less applicable than for the purely 
patrimonial polity. Feudalism is estate-type patrimonialism, a marginal 
case that contrasts with patriarchal patrimonialism. 

Feudalism is oriented not only to characteristic patrimonial features 
such as tradition, privilege, customal and precedent, but also to tem- 
porary alliances between the various power-holders, as it was typical 
of and, in fact, the essence of the folity of Estates QStimdestaat) in the 
Occident, just as the individual holders of fiefs and benefices and the 
other possessors of appropriated powers exercise their authority by virtue 
of privileges guaranteed by the prince, so his own power is considered 
a personal privilege, his "prerogative," which should be recognized and 
safeguarded by the fief-holders and other power-holders. These holders 
of privileges consociate with one another for the purpose of a concrete 
action which would not be possible without this collaboration. The 
existence of a Stiindestaal merely indicates that this system of alliances, 
which was unavoidable because of the contractual guarantee of all rights 
and duties and because of the resulting inelasticity, has developed into 
a chronic condition, which under certain circumstances was legally 
perpetuated through an explicit association. Once the fiefholders con- 
stituted an autonomous legal group, the Standestaat came into being for 
very diverse reasons, mainly however because the stereotyped and there- 
fore inflexible fiefs and privileges had to be adapted to extraordinary 
or new administrative requirements. These needs were to a large extent 
economically determined, even though externally this was not true in 
the majority of cases. Most of the time the economic influence was 
indirect: The extraordinary needs centered on the political, especially 
the military administration. The changing economic structure, in par- 
ticular the advancing money economy, exerted its influence by making 
it possible, and hence mandatory in view of the struggle and competi- 
tion with other polities, to satisfy these needs, in a manner superior to 
the normal means of stereotyped feudal-patrimonial administration; this 
involved especially the raising of considerable amounts of money all 
at once. These normal means were most of the time inadequate because 
of the very principle pertaining to this structure of domination; that 
everybody, the ruler as well as all other power-holders, had to pay the 
costs of his, and only his, administration out of his own pocket. There 



6 ] The Standestaat & the Transition to Bureaucracy 1087 

were no provisions for raising these special revenues; hence the frequent 
conclusion of new agreements was unavoidable, eventually requiring a 
consociation of the individual power-holders in the form of a corporative 
assembly. This very association either included the prince or turned 
privileged persons into "Estates," and thus changed the mere agreed- 
upon action of the various power-holders and the temporary associations 
into a permanent political structure. 

Within this structure, however, ever new and impelling adminis- 
trative tasks created the princely bureaucracy, which was destined, in 
turn, to dissolve the Standestaat. This process must not be understood 
too mechanically as if the ruler endeavored everywhere, for the sake 
of expanding his own sphere of power, to destroy the competing power 
of the Estates by developing the bureaucracy. Unquestionably and quite 
naturally, this was very often one major determinant, but not always 
the really crucial one. Quite frequently the Estates demanded from 
the ruler that he satisfy the requests of interested persons for new 
administrative services and that he render these through the establish- 
ment of a suitable agency; these continuously emerging demands were 
the result of the general economic and cultural development and thus 
due to objective developmental factors. The ruler's compliance was 
tantamount to a spread of officialdom and hence normally to an increase 
of his power; at first this led to a renaissance of patrimonialism, which 
remained dominant in Continental Europe up to the French Revolu- 
tion, but the longer patrimonialism lasted, the more it approached pure 
bureaucratism. For everywhere the nature of the new administrative 
tasks exerted a pressure toward creating permanent agencies, fixed juris- 
dictions and procedural as well as professional qualification. 

The feudal association and the Standestaat are by no means indis- 
pensable intermediate links in the development from patrimonialism to 
bureaucracy; on the contrary, under certain circumstances, they present 
considerable obstacles to bureaucracy. The beginnings of a genuine 
bureaucracy can be found everywhere in relatively uncomplicated forms 
of patrimonial administration; the transition from the patrimonial to 
the bureaucratic office is fluid and the typological attribution dependent 
not so much upon the nature of the individual office, but upon the 
manner in which offices in general are set up and administered. How- 
ever, the fully developed Standestaat as well as the fully developed 
bureaucracy grew only on European soil, for reasons to which we will 
turn later. In the meantime we will deal with certain intermediate and 
transitional forms, which preceded pure bureaucracy within feudal 
and patrimonial structures. 



I O 8 8 FEUDALISM, STANDESTAAT AND PATRIMONIALISM [ Ck. XIU 

j. Patrimonial Officialdom 

For simplicity's sake we have hitherto assumed that the political 
ruler's affairs in the central administration are managed in purely patri- 
monial fashion through household and court officials, whom we dis- 
cussed earlier, or through fief -holders, who in turn have their own 
patrimonial administration. In reality, the structure of patrimonial and 
of feudal rulership has not been so simple. As soon as the household 
administration has passed the stage of "discontinuous" administration 
through companions and intimates, the addition of purely political tasks 
regularly leads to the establishment of special central offices and most s 
of the time to the rise of a single political official, who may have various i 
characteristics. Because of its very nature patrimonialism was the specific 
locus for the rise of favoritism — of men close to the ruler who had tre- 
mendous power, but always were in danger of sudden, dramatic down- 
fall for purely personal reasons. If specific structures develop, the most 
typical patrimonial case is one in which a court official, whose function., 
involves the closest, purely personal position of confidence, also directs 
the central political administration, formally or in fact; this may be the 
keeper of the harem or a similarly employed person who deals intimately 
with the ruler's personal affairs. It also happens that a specifically po- 
litical position of trust is added. In some African kingdoms the visible 
representative of capital jurisdiction, the executioner, is the continuous 
and most influential companion of the ruler. Similarly, the judicial 
functions of the ruler gain importance with the development of con- 
tempt powers (Banngewalt), and then an official corresponding to the 
Frankish Count Palatine often rises to prominence. In militarily active 
states the same is true of the royal commander-in-chief, and in feudal 
states of the official who is often identical with him, but also controls 
the fief patronage (Shogun, major domus). In the Orient we find 
regularly the figure of the Grand Vizier; we will see later for which 
reasons he became a "constitutional" necessity, just as did the responsible 
prime minister in modern states. 

In general we can only say that, on the one hand, the existence 
of such a monocratically unified position can become especially danger- 
ous to the prince's authority, if the official concerned controls the eco- 
nomic accoutrements of the vassals and subordinate officials so that he 
can bind them to his own person vis-a-vis the ruler — consider the 
well-known examples of Japan and of the Merovingian Kingdom; on 
the other hand, the complete absence of such a central figure tends to 
lead regularly to the disintegration of the realm — see the telling ex- 
ample of the Carolingians whose own experience made them wary of 



7 3 Patrimonial Officialdom 1089 

the creation of a centralized office. We will soon come back to the 
manner in which the resulting problems, were solved. 

We are here first interested in the following phenomenon: Because 
of the increasing continuity and complexity of administrative work, 
especially because of the development of the grants and privileges 
characteristic of patrimonial and feudal structures, and finally because 
of the growing rationalization of finance, the clerical and accounting 
officials begin to play an increasingly important role. Without them 
a ruler's household is condemned to instability and power! ess n ess. The 
more developed the clerical and accounting system is, the stronger is 
the centra] power, even in the pure feudal state (for example, in Nor- 
man England and the Ottoman Empire in the period of its greatest 
power). In ancient Egypt the scribes controlled the administration. 
In the modern Persian empire the accounting officials usurped a very 
considerable role by virtue of their "secret" art — a secrecy sanctified 
by tradition. In the Occident the chancellor, the chief of the secretariat, 
was most of the time the central figure of the political administration. 
The central administration may also originate in the accounting office, 
the Exchequer in Normandy and later in E ; .ngl;md. At the same time, 
such offices are regularly the beginning of bureaucratization, because 
the working officials, who were mostly clerics in medieval times, gain 
actual control from the high-ranking courtiers who officially occupy 
them. 

We have dealt earlier [XI: 12] with the rise of the great collegiate 
central agencies as a concomitant of the qualitative extension of ad- 
ministrative tasks; we discussed them as antecedents of bureaucracy 
and in the context of the increasing importance of specialized knowl- 
edge, which propels bureaucratization. Of course, not all of the ruler's 
advisory bodies in prebureaucratic states have been early stages of mod- 
ern bureaucracy. Advisory assemblies of central officials can be found 
in the most diverse patrimonial and feudal structures all over the world. 
They serve the ruler often as a counterbalance',' not to the power of 
specialized knowledge — as -do those early bureaucratic structures — but 
simply tc the power of the highest-ranking officials; furthermore, they 
are a means of establishing administrative continuity. To that extent 
they are everywhere products of a certain stage in the qualitative de- 
velopment of administrative tasks; however, as this development pro- 
gresses ever further, these advisory assemblies approximate those phe- 
nomena of early bureaucratism by taking on the character of a collegiate 
"agency," which operates according to definitive procedures; they assume 
this form the more the office organization and administrative procedures 
approach the bureaucratic pattern; the boundary is here very fluid, as 



IO9O FEUDALISM, STANDESTAAT AND PATRIMONIALISM [ Ch, XIII 

the examples of China and Egypt demonstrate. Typologically these 
agencies should be distinguished, again despite the natural continuity 
of the transitions, from those collegiate bodies which share authority 
not by virtue of the ruler's fiat, but by virtue of their own right (after 
the fashion of the "Council of Elders" or of a body of honoratioresy, 
we will briefly deal with the latter below, for they do not partake in the 
transition from patrimonialism to bureaucratism, but are a stage of the 
division of powers between the ruler and other holders of power, 
whether they have charismatic or estate-type characteristics. 

We cannot treat here the influence of the patrimonial or feudal 
polities on the general cultural development. Patrimonialism, especially 
the non-stereotyped, arbitrary type, and feudalism are distinguished 
from one another very definitely in that area which everywhere pro- 
vides the most important opening for the impact of domination upon 
culture: the field of education. Only a few general remarks will be 
added here to the brief earlier statements about the connection between 
education and domination. Wherever feudalism develops a status- 
oriented "knightly" stratum, systematic preparation for a corresponding 
way of life emerges with all its consequences. Typically, certain artistic 
creations (in literature, music and the visual arts), which cannot be 
treated here, become a means of self-glorification and establish and 
preserve' the nimbus of the dominant stratum vis-a-vis the ruled. Thus 
"refinement" is added to the at first purely military-gymnastic training; 
the result is that very complex type of "cultivation" which is the polar 
opposite of specialized education in a bureaucratic regime. Wherever 
domination is prebendally organized, education tends to be intellectualist- 
literary, and thus to be intrinsically related to the bureaucratic ideal of * 
transmitting specialized knowledge. In a particularly typical form this is 
true of China and in cases — to be discussed later fch. XV 14] — in which 
theocracy takes over education. The last development tends to reach its 
culmination in the secular state of the arbitrary patrimonial type, which 
does not develop an educational system of its own. 



8 . The Indeterminate Economic Preconditions of 
Patrimonialism and Feudalism 

Little, that is definitive can be said about purely economic pre- 
conditions for the rise of patrimonial and feudal structures. TTie exist- . 
ence and the predominance of royal and aristocratic manors is indeed 
the general basis of all forms of feudal organization, whether fully 
developed or not. And the Chinese state of officials, which in its own 



8 ] Patrimonialism, Feudalism, and the Economy i o 9 i 

way is the most consistent political form of patrimonialism, is not based 
on landed estates, but, as we have seen, is so uniformly patrimonial 
because of their very absence, Patrimonialism is compatible with house- 
hold and market economy, petty-bourgeois and manorial agriculture, 
absence and presence of capitalist economy. The well-known Marxist 
statement that the hand-mill requires feudalism just as the steam-mill 
necessitates capitalism is at most correct in its second part, and then only 
partially. 5 The steam-mill fits without any difficulty into a state-socialist 
economy. The first part of the statement, however, is entirely incorrect: 
The hand-mill has lived through all conceivable economic structures and 
political "superstructures." In general we can say about capitalism only 
that, since its opportunities for expansion are limited under feudalism 
and patrimonialism, its champions usually attempt to substitute bureau- 
cratization or a plutocratic domination by konoratiores. This too, how- 
ever, is only true of production-oriented modern capitalism, based on 
the rational enterprise, the division of labor and fixed capital,- whereas 
politically oriented capitalism, just as capitalist whole-sale trade, is very 
much compatible with patrimonialism. Indeed we have seen that a 
strong development toward a market economy, which provides sufficient 
tax revenues for buying slave soldiers or for recruiting mercenaries, was 
the very precondition for the rise of Oriental Sultanism and thus for 
the strictly patriarchal variant of patrimonialism, which — compared to 
our Occidental Rechtsstaat — is farthest removed from modern forms 
of the state. 

The relationship between market economy and feudalism is very 
different. However, there is no general economic formula which would 
determine whether a patrimonial or a feudal structure will prevail— 
with the exception, of course, that the manorial system strongly facili- 
tates the development of feudalism in its various forms. As we have 
seen, the rationalization of the irrigation economy in the ancient 
Orient — the fact that the area of cultivation had to be won systemati- 
cally from the desert through organized draft labor — worked in favor 
of semi-bureaucratic political patrimonialism, just as did large-scale con- 
struction in China. In both cases, however, patrimonialism had to 
exist before these edifices became possible. By contrast, the acquisition 
of new land through the clearing of forests in Northern Europe favored 
the manorial system and therefore feudalism. However, feudalism also 
existed in the Orient, although in much less consistent forms. For the 
rest, we can only make the generalization that the weak development 
of the technical means of communication and therefore of political con- 
trol, together with the prevailing natural economy, promoted decen- 
tralized patrimonialism — a system of tributary satraps, because of the 



1092 FEUDALISM, STANDESTAAT AND PATRIMONIALISM [ Ck. XIII 

difficulties of creating a rational system of taxation and hence the pre- 
condition for a centralized administration of patrimonial officials; these 
weaknesses provided a strong impetus for the use of personal fealty and 
the feudal code of honor as means of political cohesion, wherever this 
was possible, that is, wherever the manorial system determined social 
stratification. 



9. The Impact of Trade on the Development of 
Patrimonialism 

Scholars have often overlooked one constant that has been histori- 
cally important in the development of strong, centralized patrimonial 
bureaucracies— trade. We saw previously that the power positions of all 
rulers transcending the level of the primitive village headman were 
based on their possession of precious metals in raw or finished form. 
They needed this treasure above all for the maintenance of their fol- 
lowing, the body-guards, patrimonial armies, mercenaries and especially 
officials. This - treasure was supplied through the exchange of gifts with 
other rulers — this was in fact often an instance of barter — , through 
the ruler's own regular trade (in particular, the coastal intermediate 
trade), which can lead to a direct monopolization of foreign trade, or 
finally through other uses of foreign trade. This was done either directly 
in the form of taxation through tariffs, tolls and other tributes, or in- 
directly through market -privileges and the founding of ci tit's, which, 
were princely prerogatives that yielded high ground-rents and subjects 
capable of paying high taxes. Throughout history, this last type of 
utilizing trade was systematically undertaken; as late as the beginning 
of modern times, Polish seigneurs founded countless towns and settled 
them with Jews emigrating from the West. Typically, patrimonial po- 
litical structures persist and expand territorially, although their trade 
is relatively moderate or outright weak in Comparison to their size or 
their population — see the case of China and of the Carolingian em- 
pire—, but the genesis of patrimonial political rulership is infrequent 
without trade playing a considerable role; it has happened— witness the 
Mongolian empire and the kingdoms of the Teutonic Migration — , but 
nearly always according to the pattern that tribes who live adjacent 
to territories with a highly developed money economy invade these, 
take possession of their precious metals and found new polities on these 
territories. The royal trade monopoly can be found all over the world, 
in Polynesia just as much as in Africa and in the ancient Orient. Only 
recently, for example, all larger political entities on the West African 



9 ] - impact of Trade on Patrimonial Development i o 9 3 

coast collapsed because the Europeans destroyed the intermediate trade 
monopoly of the respective chiefs. The location of most of the oldest 
large patrimonial polities is closely related to this function of trade. 

Very often the ruler's special power position as a seigneurial land- 
owner is only secondary. Of course, royal and aristocratic power 
originate most of the time in landholdings; with regard to areas in which 
there is still a surplus of land — as between the Congo and Zambesi 
rivers— it is more precise to say that this pre-eminence depends upon 
the possession of men and caftfe, which advances i-ent-producing cultiva- 
tion. Income from ren! - property is naturally necessary for that mode 
of life which socially establishes prince and aristocrat. But the subse- 
quent development toward the monopolization of Aground-rent" is very 
often codetermined by trade gains. Whgn 3 ruler is considered the land- 
lord (not just the feudal overlord) of a whole country — as often hap- 
pens at the most diverse stages of cultural development — , this is usually 
not the starting point, but the consequence of his political position, of 
t the resulting advantages in the acquisition of chattel — in Caffraria the 
possession of humans (women) and of catde- — and, generaly, of the 
economic ability, based in particular on the possession of precious metals, 
to maintain patrimonial soldiers or mercenaries. The situation is usually 
not different with regard to the monopolistic land control of the aristoc- 
racy in maritime states: debt-serfs are an important part of agricultural 
labor in Hellenic Antiquity and probably also in the ancient Orient. 
They till the soil for the urban patriciate for a share in the crops. Direct 
and indirect trade gains provide the urban patriciate with the means for 
accumulating land and people. In a nateral economy even the moderate 
possession of precious metals was extraordinarily important for the rise 
and the power position of a state. Of course, this did not change the 
fact that the bulk of the needs could be, and most of the time was, 
satisfied by the natural economy. Both things must not be confused with 
one another, as it happens all too often, when somebody talks about the 
impact of trade in primitive times. 

The causal influence of trade upon the formation of political as- 
sociations is certainly not unequivocal. As we pointed out, neither are 
all origins of patrimonial authority necessarily rooted in trade, nor did 
a patrimonial state arise wherever there was trade. Domination by 
honoratiores, too, was often a primary product of trade. However, very 
often there was a connection between trade and the rise of a simple 
chief to the rank of a prince. By contrast, trade is on the whole very 
antagonistic to the strictly feudatory system and the tighdy-knit; struc- 
ture of the feudal hierarchy. It is true that trade typically created the 
"municipal feudalism" of a seigneurial patriciate, especially in the Medi- 



1 O 9 4 FEUDALISM, STANDESTAAT AND PATRIMONIALISM [ C&- XIII 

terranean area. However, in japarj and India as well as in the Occident 
and in the Islamic Orient, feudalization was closely related to the slow 
progress, and often to the decline, of the market economy, but one 
factor was as often the cause as the consequence of the other. In the 
Occident, feudalism was a consequence of natural economy and provided 
the only possible means of establishing an army; in Japan and in the 
Near East during the Middle Ages the opposite situation prevailed. 
What was the origin of the latter development? 



i o. The Stabilizing Influence of Patrimontalism and 
. Feudalism on the Economy 

Both forms of domination, but feudalism much more so than parti- 
monialism, may have a strongly stabilizing effect upon the economy. 
Patrimoniah'sm may have such an effect because under its rule only 
the leading officials, whose activities cannot he controlled continuously 
by the ruler, have in general the chance of getting rich quickly: wit- 
ness the mandarins in China. The source of the accumulation of wealth 
is not acquisition by exchange, but the exploitation of the tax capacities 
of the subjects and the latter's need to buy all official actions of the 
ruler and the officials, given the wide latitude for granting favors and 
for arbitrariness. On the other hand, the power of the patrimonial of- 
ficials is, in essence, limited only by tradition; its violation is dangerous 
even for the most powerful official. Therefore, material and personal 
innovations, new classes that are not sanctified by tradition, new kinds 
of acquisition and enterprise that run counter to tradition, are in a very 
precarious situation and at the least exposed to the arbitrariness of the 
ruler and cf his officials. Both traditionalism and arbitrariness affect 
very deeply the developmental opportunities of capitalism. Either the 
ruler himself or his officials seize upon the new chances of acquisition, 
monopolize them and thus deprive the capital formation of the private 
economy of its sustenance, or the ubiquitous resistance of traditionalism 
is reinforced by them so as to hinder economic innovations that might 
endanger the social equilibrium or meet religious and ethical objections; 
the latter have to be taken into account because the patrimonial ruler's 
own authority is rooted in the sanctity of tradition. On the other hand, 
the wide latitude of the ruler's unrestricted discretion can reinforce the 
anti-trad i dona I power of capitalism in a given case, as it happened in 
Europe during the period of absolutism. However, we must add that — 
apart from other peculiarities of this kind of privileged capitalism — the 
royal government was already bureaucratic-rational. As a rule, the nega- 



io ] Economic Effects of Patrimonialism & Feudalism 1095 

rive aspect of this arbitrariness is dominant, because — and this is the 
major point — the patrimonial state lacks the political and procedural 
predictability, indispensable for capitalist development, which is pro- 
vided by the rational rules of modern bureaucratic administration. 
Instead we find unpredictability and inconsistency on the part of court 
and local officials, and variously benevolence and disfavor on the part 
of the ruler and his servants. It is quite possible that a private individual, 
by skillfully taking advantage of the given circumstances and of per- 
sonal relations, obtains a privileged position which offers him nearly 
unlimited acquisitive opportunities. But a capitalist economic system 
is obviously greatly handicapped by these factors, for the individual 
variants of capitalism have a differential sensitivity toward such un- 
predictable factors. Wholesale trade can tolerate them most easily, 
relatively speaking, and adapt itself to all changing conditions. More- 
over, if the ruler does not monopolize trade himsell, as under simple 
and transparent conditions, his self-interest demands that be permit 
the accumulation of wealth, so that he can draw on tax-farmers, farmers 
of official supplies and on credit sources. The "financier" is already 
known in the period of Hammurabi, and the formation of trade capital 
is feasible under almost all conditions of domination, especially under 
patrimonialism. 

It is different with industrial capitalism. If it is to become the typical 
form of the industrial enterprise, it requires an organization of labor 
that aims at a mass market and depends upon the possibility of correct 
calculations. This is true the more capital-intensive industrial capitalism 
is, and especially the more saturated it is with fixed capital. Industrial 
capitalism must be able to count on the continuity, trustworthiness 
and objectivity of the legal order, and on the rational, predictable func- 
tioning of legal and administrative agencies. Otherwise those guarantees 
of predictability are absent thbt are indispensable for the large industrial 
enterprise. They are especially weak in patrimonial states with a low 
degree of stereotyped operations: conversely, they exist at an optimum . 
under modern bureaucratism, Industrialization was not impeded by the 
Islam as the religion of individuals — the Tartars in the Russian Caucasus 
are often very "modern" entrepreneurs — , but by the religiously de- 
termined structure of the Islamic states, their officialdom and their juris- 
prudence, 

This negative anticapitalist effect of patrimonial arbitrariness can be 
aggravated by a positive consequence, hitherto almost completely over- 
looked, which arbitrary patrimonialism may have, under otherwise suita- 
ble conditions, especially in a developed money economy. A peculiar 
type of artificial immobilization of wealth may result from the instability 



IO96 rfUDAtiSM, STANDESTAAT AND PATRIMONIALISM [ Ch. XIII 

of all legal guarantees under patrimonial justice and administration. By 
far its most important examples are a certain type of Byzantine monastic 
foundation and the Islamic wakfs, which apparently were patterned 
after this legal form. This,, type of Byzantine foundation may be sketched 
as follows: Land is given as an endowment, for example, building-sites 
in Constantinople; value and revenue will be tremendously increased by 
projected harbor installations. The monastery thus endowed must main- 
tain a definite number of monks, through fixed prebends, and of the 
poor, through alms; in addition, there are administrative costs. However, 
the whole surplus of the monastery's income over its expenditures goes 
to the family of the founder. It is clear that the latter stipulation reveals 
the real purpose of the foundation: In the guise of a monastery, the 
foundation is in reality inalienable family property, with probably in- 
creasing revenues; it has sacred protection, especially against seizure by 
secular — that means, patrimonial-bureaucratic — authorities. (Besides, the 
founder also achieves the purpose of gaining favor with God and men 
and, under certain circumstances, of securing for his family an influence 
upon the filling of prebends; thus the family can grant favors to influen- 
tial families, for many prebends were easy sinecures for the garcons of 
Constantinople; seclusion and even compulsory residence' were not re- 
quired. Another purpose was the securing of influence upon the ad- 
ministration of a family chapel.) The whole arrangement was a kind of 
surrogate, within a money economy, for the private churches (Eigert- 
khchen) of the feudal Occident. 

It appears likely that endowments of a very similar form existed^ 
already under ancient Egyptian patrimonialism. At any rate, the same 
phenomenon can be dbserved during the Islamic Middle Ages in the 
wakf — an endowment for a mosque or a similar foundation — , as the rec- 
ords testify. At that time, too, objects which had an increasing financial 
value: building sites, rentable workshops (firgisteri#) were given as 
endowments, without doubt for the same purpose and for the same 
reason. The consecration provided an optimal guarantee, although no 
absolute security, against arbitrary intervention of the secular officialdom. 
Thus the arbitrariness and unpredictability of patrimonial domination 
had the effect of strengthening the realm of subjection to sacred law. 
And since, on the other hand, the theoretical rigidity and immutability 
of the shari'ah was "corrected" . by the judges through subjective and 
often quite unpredictable interpretation, the two components of patri- 
monialism, equally hostile to capitalism, reinforced one another. C. H. 
Becker probably assumes correcdy that the very persistent immobilization 
of accumulated property in the form of wakfs was of very great im- 
portance for the economic development of the Orient. 5 This immobiliza- 



io ] Economic Effects of Patrimonialism & Feudalism 1097 

tion corresponded fully to the spirit of the ancient economy which used 
accumulated wealth as a source of rent, not as acquisitive capital. 
(Through Spanish mediation, the institution of the profane "entailed 
estate" (fidet commissum}, which is probably a secularized imitation of 
the wakf and first emerged in Spain, was imported to Germany in the 
j 7th century.) 



I I, 



Monopolism and Mercantilism 



In a relatively developed money economy and in periods in which it 
strongly approaches the rational bureaucratic system, patrimonialism 
has another influence upon economic development that results from its 
mode of "public finance." Just as the patrimonial state easily dissolved 
into a congeries of privileges, so the satisfaction of needs through monop- 
olist-capitalist means and through positive and negative privileges — in 
the previously discussed meaning — was particularly frequent. With the 
help of a well-functioning patrimonial officialdom, it was easy to estab- 
lish all kinds of fiscal enterprises and monopolies. State enterprises and 
monopolies emerged, on a sometimes very extensive scale, in Egypt, the 
late Roman empire and in the Near and Far East; the public enter- 
prises (Regiegewerbe*) of the rulers at the beginning of modem times 
were similar. Public financing through profit-making has by no means 
been limited to patrimonialism. During the Middle Ages and early in 
modern times, the cities too participated, often under great losses (for 
example, Frankfurt on the Main), in pardy quite risky industrial and 
trading enterprises of a purely profit-making character. But the effective 
range of monopolies for state commercial enterprise was, generally speak- 
ing, greater in the patrimonial states, and therefore the public monop- 
olies were on the whole more frequent and pervasive in them. Often, 
however, the satisfaction of needs through privileges could affect the * 
economy even more strongly. 

Public "financing" of a negatively privileging kind [that means, 
through functions imposed on certain status groups], the system of 
liturgies, was carried through most comprehensively by the most rational 
patrimonial-bureaucratic empires of Antiquity: Egypt and, imitating it, 
the Late Roman and Byzantine monarchy. The Egyptian economy of 
the Pharaohs acquired thereby a peculiar "state-socialist" strain, linked 
with periodically quite far-reaching hereditary ties to guilds and, at cer- 
tain times, also to landed estates; it transmitted this trait also to the 
Late Roman economy. It is clear that this narrowed down considerably 
private capital formation and the realm of capitalist acquisition. 



IO98 FBUDALISM, STANDESTAAT AND PATR1MONIALISM [ Cfe. XIII 

Next to, and instead of, this type of public finance- which smothered 
capital formation and hence private capitalism, patrimonialism also uses 
a positively privileging type in the form of concessions to private trade 
or craft monopolies for high fees, a share in profit or a fixed annuity. 
Such positive privileges are found in many patrimonial states of the past 
all over the world. They played their last and most important role 
in the age of mercantilism, when the incipient capitalist organization of 
trades, the bureaucratic rationalization of patrimonial rulership and the 
growing financial needs of the military, external [foreign affairs] and 
internal administration revolutionized the financial techniques of the 
European states. Everywhere and in the most diverse forms the princely 
power, whether that of the Stuarts, the Bourbons, Maria Theresia, 
Catherine the Great and Frederick the Great, sought to create cash 
revenues through the establishment of monopolistic industries; these 
revenues did not require the approval of the estates of the realm, and 
n the Standestaat and in parliamentary states they were often directly 
ssed as a* political weapon. Here too the characteristic features of 
patrimonial capitalism emerged — and the bureaucracy of "Enlightened 
Despotism" was still as patrimonial as was the basic conception of 
the "state" on which it rested. This was recently shown very neatly by 
H. Levy with regard to the most impressive example: Stuart England. 1 
There the question of the "monopolies" was one of the major issues in 
the struggle between the monarchy and the rising bourgeois classes; the 
monarchy strove for financial independence from parliament and for a 
rational-bureaucratic organization of the whole state and of the economy 
according to the pattern of a caesaropapist "welfare state," whereas in 
parliament the bourgeois class interests became increasingly decisive. 
Members and favorites of the royal family, courtiers, military men and 
officials grown rich, great speculators and adventurous inventors of 
"systems" of political economy such as that of John Law, outside of Eng- 
land often also Jews, at that time too made up the economically 
interested groups behind the royal monopolies and the industries which 
were imported, founded or protected on that basis. This was an attempt 
to transfer to modem industries patrimonial capitalism, which had existed 
everywhere in Antiquity and the Middle Ages of East and West, with 
only a few interruptions. ■ It often furthered or awakened the "entre- 
preneurial spirit," at least for the moment. But the attempt itself failed 
by and large: The manufactories of the Stu3rts, the Bourbons, Peter 
the Great and Frederick the Great survived the period of their sponsor- 
ship only in very few specialties. In England the compulsory monop- 
olistic industry collapsed together with the autocratic welfare state of 
the Stuarts. Neither the period of Colbert nor of Frederick and Peter 



1 1 ] Monopolism and Mercantilism i o 9 9 

succeeded in turning their countries into industrial states. The economic 
roots of this failure were the disregard of the economics of location, in 
England and elsewhere frequently the qualitative inferiority of protected 
products and the hindrance of the capital flow in directions indicated 
by the market conditions; the legal insecurity owing to the always doubt- 
ful duration of monopolies in view of possible new privileges was the 
political reason for this failure — hence the retarding factor was again 
the arbitrariness of patrimonial rulership. 



1 2. The Formation and Distribution of Wealth under 
Feudalism 

The feudal order has a different effect upon the economy than does 
patrimonialism, which in part furthers and in part deflects modern 
capitalism. The patrimonial state offers the whole realm of the ruler's 
discretion as a hunting ground for accumulating wealth. Wherever 
traditional or stereotyped prescription does not impose strict limitations, 
patrimonialism gives free rein to the enrichment of the ruler himself, 
the court officials, favorites, governors, mandarins, tax collectors, in- 
fluence peddlers, and the great merchants and financiers who function 
as tax-farmers, purveyors and creditors. The ruler's favor and disfavor, 
grants and confiscations, continuously create new wealth and destroy it 
again. In contrast, feudalism, with its closely delineated rights and 
duties, does not only have a stabilizing effect upon the economy as a 
whole, but also upon the distribution of individual wealth. 8 To begin 
with, it achieves this effect through its legal order. The feudal associa- 
tion and also the related patrimonial forms that have a stereotyped status 
structure constitute a synthesis of purely concrete rights and duties. They 
amount, as we have pointed out, to a "constitutional state" (J{echtsstaat) 
on the basis of "subjective" rights, not "objective" law. Instead of a 
system of abstract rules, compliance with which permits everybody the 
free use of his economic resources,, we find a congeries of acquired rights, 
which impede the freedom of acquisition and provide opportunities for 
capitalist acquisition only through the granting of further concrete 
privileges, as they were generally the basis of the oldest manufactories. - 
To be sure, in this manner capitalist acquisition gains a support which 
is steadier than the personal changeable favors of patriarchal patri- 
monialism, but the danger that the granted privileges will be disputed 
persists since older acquired rights remain untouched. 

Capitalist development is handicapped even more by the economic 
foundations and consequences of feudalism. Land granted as a fief 



y 



IIOO FEUDALISM, STANDESTAAT AND PATRIMONIAL1SM [ Ch. Xlll 

became immobilized, since it was normally inalienable and indivisible; 
the vassal's ability to discharge his obligations, to live in a knightly 
fashion and to raise his children properly depended upon the holding 
together of his property. Sometimes the vassals were not even permitted 
to alienate their own private lands, or restraints were imposed upon 
them, for example, the prohibition to sell their land to persons who were 
not status equals — witness the case of the Japmese vassals (gofetwm) of 
the skogun. And since the revenues from the land grants, which the 
vassals normally do not work themselves, at least not in a capitalist 
fashion, are dependent upon the peasants' capacity to render good;; and 
services, the restraints on property and economic management were ex- 
tended downward under the seigneurial system. The spread of feudalism 
in japan is paralleled by injunctions against subdivision, the selling of 
land — in order to prevent the rise of lutlfundia— and leaving the land: 
all this in the interest of preserving the peasants' economic capacities bv 
protecting the existing livings. It is well known that exactly the same 
development occurred in the Orient. These restrictions and the feudal 
structure in general are not necessarily inimical to the money economy, 
as it is sometimes claimed. Tariffs, fees And revenue-vielding territorial 
rights, among them especially judicial powers, were also granted as fiefs. 
Wherever it appeared economically Jjjasible, the manorial lord was 
strongly inclined to transform die peasants' services into taxes; this hap- 
pened early in England,, And wherever the peasants were economically 
unable to p3y Jaxes, me landlord tended to resort to forced-labor enter- 
prises. (Ftonhetrieb') and thus directly to capitalist acquisition; wherever 
feasible, the feudal lord of the manor or the political ruler attempted to 
.^ell his surplus in kind in order to get money. According to Rathgen, 
the Japanese datmyos maintained their agencies in Osaka primarily for 
the sale of their rice surplus. On a magnificent scale, the Teutonic Order 
—an economically rational community of collectively living monastic 
knights, whose vassals were the rural landlords — engaged in trade 
through its sales agencies in Bruges. The antagonism between the Order 
and the Prussian cities, Danzig and Thorn in particular, was essentially 
due to the competition between the Order's communal economy and 
the burghers. The Polish aristocrats, marketing grain from the hinter- 
land, and the urban intermediary trsdc^ co-operated against the monop- 
olistic claims of the Order; this resulted in the cities' defection to the 
Poles and in the loss of Western Prussia for German culture (Deutsch- 
tum). 

Of course, the manorial export trade did not only consist in the 
marketing of rent in kind but also of other products. The feudal land- 
lord or political ruler can be a capitalist producer or creditor — witness 



12 ] Formation & Distribution of Wealth Under be.udctJis.rn 1 f o i 

again fhc daimyoi. With the help of serf labor feudal landlords often 
established commercial enterprises, manorial home industries and espe- 
cially factories, for example in Russia. Therefore, rhe patrimonial founda- 
tion of feudalism implies by no means a necessary linkage with a 
natural economy. Rut partly for this very reason modern capitalism is 
impeded, since it depends upon the development of mass purchasing 
power for industrial products. However, the frequently massive tributes 
and services of the peasants to the landlords or feudal magistrates con- 
fiscate much of their purchasing power, which could have contributed 
toward the creation of a market for industrial products. The landlords' 
purchasing power which derives from this confiscation, does not benefit 
mass- produced articles, upon which modern industrial capitalism largely 
depends; rather, it creates luxury demands, especially the eonsumption- 
oricnled maintenance of personal servants. Moreover, since the manorial 
|>tofi f -m:ii;ing enterprises operate with forced labor and since in general 
the niiiiorial household and craft enterprises utilize unpaid labor and 
hence waste manpower, thev withhold" tabor from the free market and 
use i; in a manner which largelv fails to create capital, and sometimes 
simp: v consumes it. Insofar as these enterprises can compete with the 
urban trades because their workforce is paid little or nothing, wages 
canno? create mass purchasing power; and insofar as these enterprises 
cannot compete, in spite of. this advantage, because of technological 
"backwardness" — and this is the rule—, the mnrional lord tries to impede 
the capitalist development of the urban trades ill rough political repres- 
sion. In general, the feudal stratum tends to restrict the accumulation 
of wealth in bourgeois hands* or at least to "deelass" the nouveauv riches. 
This happened particularly in feudal Japan where eventually the whole 
foreign trade was greatly restricted, primarily in the interest of stabilizing 
the social order. In varying degrees similar phenomena can be observed 
everywhere. The socialprestige of the manorial lords also motivates the 
nouveaux riches to invest their acquired wealth not in a capitalist venture 
but in land, in order to rise into the nobility if it be possible- AH of this 
impedes the formation of productive capital; this was very typical of 
the Middle Ages, especially in Germany. 

Thus feudalism more or less handicaps or diverts capitalist develop- 
ment; moreover, its strong traditionalism generally strengthens the au- 
thoritarian powers which distrust all new social formations. But the 
continuity of the legal order, which is after all much greater than in the 
non-stereotyped patrimonial state, may facilitate capitalist development. 
Where the bourgeois accumulation of wealth is not restricted as much as 
in Japan, it will be slowed down, but whatever is lost in this way, espe- 
cially in comparison with the vacillating economic opportunities in the 



I I O 2 FEUDALISM, STANDESTAAT AND PATRIMONIALISM [ Ch. Xlll 

patrimonial state, can eventually benefit the formation of a rational 
capitalist system through a more gradual and continuous development, 
and can further its advance within the interstices of the feudal system. 
Opportunities for individual acquisition were certainly much smaller in 
the Northern countries of the Occidental Middle Ages than for the 
officials and government purveyors of the Assyrian empire, the Caliphate 
and Turkey, or for the Chinese mandarins, or Spanish and Russian 
government purveyors and state creditors. But exactly because these 
chances were lacking, capital flowed into the channels of purely bour- 
geois acquisition through the putting-out system and the manufactories. 
And the more successfully the feudal stratum prevented the intrusion 
of nouveaux riches, excluded them from offices and political power, " 
socially "declassed" them and blocked their acquisition of aristocratic 
landed estates, the more it directed this wealth to purely bourgeois- 
capitalist uses. 



13. Patrimonial Monopoly and Capitalist Privilege 

Patriarchal patrimonialism is much more tolerant than feudalism 
toward social mobility and the acquisition of wealth. The patrimonial 
ruler does not like independent economic and social powers, and therefore 
does not favor the rational enterprises based on the division of labor, 
that means, on the trades. But he also does not support status barriers, 
which he considers inconvenient limitations of his own power, in the 
area of free acquisition and trade, unless there are liturgical ties. Thus 
in the Ptolemaic empire complete freedom of trade and a highly devel- 
oped monetary economy extended into the last household, and this 
despite the Fact that the full patrimonial power of the king and his 
personal divinity persisted with far-reaching effects, just as in the 
times of the state socialism of the pharaohs. For the rest, diverse cir- 
cumstances determine the extent to which patrimonialism tends more 
toward monopolies of its own, and therefore toward hostility to private 
capitalism, or more toward direct privileges for capital. The two most 
important factors are political : 

The very structure of patrimonial domination, whether estate- 
like or patriarchal. In the former case the ruler is naturally more limited, 
ceteris -paribus, in the free development of his own monopolies. Never- 
theless, it is true that in modem times the Occident has known many 
monopolies by patrimonial rulers, much more so than China, at least 
during the same period; but it is also true that most of these monopolies 
were used only in the form of leases or licenses to capitalists, that means, 



13 ] Patrimonial Monopoly and Capitalist Privilege i 103 

in private capitalist fashion. Furthermore, the ruler's monopolies evoked 
>a very effective response from the ruled. Such a strong reaction would 
have been scarcely possible under strictly patriarchal domination; to be 
sure, state monopolies — as Chinese literature too seems to confirm — has 
everywhere been resented, but most of the time it was hated by the 
consumers, not, as in the Occident, by the (bourgeois) producers. 

2) The second factor has already been mentioned in a different con- 
text: The privileges of private capital in patrimonial states were always 
the more developed, the more the power competition of several states 
made it necessary for them to woo the mobile money capital. Politically 
privileged capitalism flourished in Antiquity, as long as several states 
fought for ascendancy and survival; in China, too, it seems to have de- 
veloped in the corresponding past. It flourished during the age of mer- 
cantilism in the Occident, when the modern power states entered upon 
their political competition. It disappeared in the Roman empire when 
the latter became a universal state and merely had to protect frontiers; it 
was almost completely absent in the Chinese empire, and relatively weak 
in the Oriental and Hellenistic states — the weaker, the more these states 
were "universal" — and also in the Caliphate. Of course, not every com- 
petition for power led to privileges for capital; this could only happen 
when capital formation was already under way. Conversely, pacification 
and the resulting decline of political demands for capital on the part 
of the great universal states eliminated the privileged position of capital. 

Among the most important objects of government monopolies is 
coinage, which was monopolized by the patrimonial rulers primarily for 
purely fiscal purposes. In the Occidental Middle Ages the normal means 
for achieving these purposes consisted in depressing the value of bullion 
through establishing a monopoly for one's own coinage; deteriorarjon 
of coinage was the abnormal means. But such practices are already in- 
dicative of a highly develop*-:! general use of coinage. Coins were used 
neither in Egyptian and Babylonian Antiquity nor in the Phoenician 
and pre-Hellenistic Indian culture; in the Persian empire and in 
. Carthage they were used exclusively for payments jn precious metals to 
soldiers and foreign mercenaries ?ccustomed to this compensation (in 
Carthage, these mercenaries were Greeks); coins were not a means 
of economic exchange, which had to resort to weighing in the case of 
commercial exchange and to conventionally established forms of money 
in the case of retail transactions. Therefore coinage was limited to gold 
pieces in Persia. Conversely, the ruler's coinage in China created up to 
the present only means of exchange tor retail trade, whereas commerce 
had to rely on weighing. These last two phenomena, which seemingly 
point into opposite directions, may serve as a warning not to consider 



I 104 y-KUOAl m.M. STANDESTAAT AND PVTRIMONIALISM [Ch- XIII 

the state of coini^e symptomatic For the advance of the money economy 
—especially in China where paper monev was known. Rather, both 
symptoms refer to (he same fact": the extensiveness of patrimonial ad- 
ministration and its resulting inability ro force its coinage upon the 
merchants. Nevertheless, there is no doubt that the rationalization of 
coinage by the state and its increasing use greatly furthered the technical 
development of commerce: The superiority of the Hellenes with regard 
to trading sechniques during the one and l A millennia from the 6th cen- 
turv b.c. to the supremacy of Venice and Genoa, on the one hand, and 
of Saracen trade on rhe other certainly was in part due to the fact that 
they were the first to exploit this advance. The development of an^ 
intensive monev economy in ih<' Orient, extending fo India, after the 
conquests of Alexander was at least technically ccdetermined by it. 
However, the late of the economy w;?s horn now on also more intimately 
connected with the ups and downs in the financial conditions of the 
powers issuing coinage. Hie catastrophe of the Roman finances in the 
third century, caused hv the increasing grants to the army and the re- 
sulting monetary disorders, was by no means the cause for the return 
to a natural economy in late Antiquity, hut it contributed to it. On the 
whole, however, the ordering ol the monetary system by the govern- 
ment was much more determined by the given demands of the economy 
toward the state, which arose f^om the iong-establi:'hed conventions of 
commercial transactions; rather than being a condition of economic de- 
velopment, fn Antiquity as well as in the Middle Ages ihe demand for 
rational coinage emanated in the cities, and urban development in the 
Occidental sense, especially the rise of independent .rafts and indigenous 
retail trade, not wholesale trade, was reflected in ihe rationalization of 
coinage. 



14. Ethos and Style of Life 

The structure of domination affected the general habits of the peo- 
ples more by virtue of the ethos which it established than through the 
creation of these technical means of commerce. In this respect feudalism 
and patriarchal patrimonialism differ greatly. Both shaped strongly di- 
vergent political and social ideologies and through them a very different 
style of life. 

Especially in the form of free vassalage and of the fief system, 
feudalism appeals to honor and personal Fealty, freely assuraed and 
maintained, as constitutive motives of action- Loyalty and personal fealty 
are also at the root of many plebeian forms of patrimonial or liturgical 



14 } Ethos ami Style of Life 1105 

feudalism (slave armies, soldiers settled as clcmcns, f/^t^infc or frontier 
guards, and especially levies of clients and cou>n'i). 1 iowevo-r, they lack 
status honor as the integrating component. On the ut.1 <:: hind, status 
honor counts for much in the nrrny of "urban letidaji^n": die status 
honor of the Spartiates rests upon the warrior's knigiuiy huiior and 
etiquette; it employs the "duel ol purification" fur ilmn; who evaded 
combat or violated the etiquette; in attenuated form these features were 
generally characteristic of the early Hellenic armies of JwpLte*. But die 
personal relationship of fealty was absent. _n the uge of tfi L (Crusades 
Oriental prebendal feudalism sustained a sense of knighrly status, but on 
the whole it remained formed by the patriarchal character of rulership. 
The combination of honor and fealty was only known, as we have 
seen, in Occidental feudalism and Japanese "vassalic" leudalism. Both 
have in common with Hellenic urban feudalism a special status educa- 
tion which aims at the inculcation of eihoi based on status honor. But 
in contrast to Hellenic feudalism they made the vassal's fealty the center 
of a view of life which perceives the most diverse social relations, to the 
Savior as well as the loved one, from this vantage poiru. "1 he feudal 
consociation thus permeated the most important relationships with ,<-rv 
personal bonds; their peculiarity also had the effect of centering the feel- 
ing of knightly dignity upon the cult of the personal. This contrast 
violently with all impersonal and commercial relationships, which are. 
bound to appear undignified and vulgar to the feudal ethic. 

However, the antagonism toward commercial rationality also has 
other roots. First, there is the specific military character of the feudal 
system, which eventually is transposed to the political structure. The 
typical feudal army is an army of knights, and that means that individual 
heroic combat, not the discipline of a mass army, is decisive. The goal 
of military education is not, as in mass armies, drill for the sake of 
adaptation to an organized operation, but individual perfection in per- 
sonal military skills. Therefore, one element finds a permanent place in 
training and general conduct, which, as a form of developing qualities 
useful for life, belongs to the original energy household of men and 
animals, but is increasingly eliminated by every rationalization of life — 
the game. Under feudal conditions it is just as litde a "pastime" as in 
organic life, rather it is the natural form in which the psycho-physical 
capacities of the organism are kept alive and supple; the game is a form 
of "training," which in its spontaneous and unbroken animal instinctive- 
ness as yet transcends any split between the "spiritual" and the "ma- 
terial," "body" and "souL" no matter how conventionally it is sublimated. 
Only once did the game find a specifically artistic perfection, imbued 
with genuine naivetes in the wholly or semi-feudal Hellenic society of 



I I 06 FEUDALISM, STANDESTAAT AND PATRIMONIALISM [ Ck. XIII 

warriors, first in Sparta. Among Occidental feudal knights and Japanese 
vassals the aristocratic status convention, with its stricter sense for dis- 
tance and dignity, imposed a greater limitation on this kind of freedom 
than existed under the (relative) democracy of the citizenry of hoplites. 
But inevitably the game also occupies a most serious and important 
position in the life of these knightly strata; it constitutes a counterpole 
to all economically rational action. However, this kinship with an 
artistic style of life, which resulted from this aspect of the game, was 
maintained also directly by the "aristocratic" ethos of the dominant 
feudal stratum. The need for "ostentation," glamour and imposing 
splendor, for surrounding one's life with utensils which are not justified 
by utility hut, in Oscar Wilde's sense, useless in the meaning of "beauti- 
ful," is primarily a feudal status need and an important power instru- 
ment for the sake of maintaining one's own dominance through mass 
suggestion. "Luxury" in the sense of rejecting purposive-rational control 
of consumption is for the dominant feudal strata nothing superfluous; 
it is a means of social self-assertion. 

Finally, positively privileged feudal strata do not view their existence 
functionally, as a means for serving a mission, that is, an idea that should 
be realized purposively. Their typical myth is the value of their 
"existence." Only the knightly fighter for the true faith has a different 
orientation, and wherever he was permanently dominant, most promi- 
nently in Islam, the free artistic game had only a limited importance. 
At any rate, feudalism is inherently contemptuous of bourgeois-commer- 
cial utilitarianism and considers it as sordid greediness and as the life 
force specifically hostile to it. Feudal conduct leads to the opposite of 
the rational economic ethos and is the source of that nonchalance in busi- 
ness affairs which has been typical of all feudal strata, not only in con- 
trast to the bourgeois, but also to the peasants' proverbial shrewdness. 
This solidarity of feudal society is based on a common education which 
inculcates knightly conventions, pride of status and a sense of honor. 
This education is opposed to the charismatic magic asceticism of prophets 
and heroes through its secular orientation, to literary education through 
its belligerent heroic stance and to rational specialized training through 
its playful and artistic features. 

In nearly all of these respects patriarchal pa'trimonialism has a differ- 
ent effect upon the style of life. Feudalism is always domination by the 
few who have military skills. Patriarchal patrimonialisin is mass domina- 
tion by one individual; as a rule it requires officials, whereas feudalism 
minimizes the demand for these. As far as it does not rely on alien patri- 
monial troops, it strongly depends upon the subjects' good will, which 
feudalism can afford to forego to a large extent. Against the dangerous 



14 ] Ethos and Style of Life i 107 

asp/ratiom of the privileged status groups patriarchalism plays out the 
masses who everywhere have been its natural following. The "good 
king," not the hero, was the ideal glorified by mass legend. Therefore, 
patriarchal patrimonialism must legitimate itself as guardian of the sub- 
jects' welfare in its own and in thoir eyes. Ibe "welfare state" is the 
legend of patrimonialism, deriving not from th^. free cameraderie of 
solemnly promised fealty, but from the authoritarian relationship of 
father and children. The "father of the people" (Landesvater) is the 
ideal of the patrimonial states, Patriarchalism can therefore be the 
carrier of a specific welfare policy, and indeed develops it whenever it 
has sufficient reason to assure itself of the good will of the masses. In 
modem history this happened, for example, in England under the regime 
of the Stuarts, when they fought against the anti-authoritarian forces of 
the Puritan bourgeoisie and of the semi- feudal honoratiores: Laud's 
Christian welfare policies had partly clerical, partly patrimonial roots. 
The minimization of administrative functions under feudalism, which is 
concerned about the welfare of the retainers only to the extent that this 
is indispensable for the lord's economic maintenance, contrasts with the 
maximization of administrative interests under patriarchalism. For every 
new administrative function which the patrimonial ruler appropriates 
means an elevation of his power and ideological significance and creates 
new benefices for his officials. The patrimonial ruler is not at all in- 
terested in a stereotyped distribution of property, especially of land. He 
establishes economic restrictions only to the extent that he satisfies his 
needs liturgically, he accomplishes this through collectively responsible 
bodies, within which an internal subdivision of property may take place. 
If he satisfies his needs through a money economy, then small land- 
holdings and very intensive agriculture, combined with freely alienable 
land ownership, are very much compatible with bis own interests. The 
patrimonial ruler does not abhor in the least new property formation 
through rational acquisition; in fact, he favors it under the condition 
that it does not establish new powers which gain authority independent 
of his approval. 

Typical of patrimonialism is the determined rise from rags, from 
slavery and lowly service for the ruler, to the precarious all-powerful 
position of the favorite. In the interest of his domination, the patrimonial 
ruler must oppose the status autonomy of the feudal aristocracy and the 
economic independence of the bourgeoisie. Ultimately, every autonomous 
dignity and simply any sense of honor on the part of the "subjects" 
must be suspected of hostility to authority; the inner devotion to the 
authority of the sovereign indeed fared everywhere according to the 
outcome of the resultant historical struggles. The minimization of effec 



I I O 8 FEUDALISM, STAKLESTAAT AND PATRIMONIAL ISM [ Ck. XIII 

tive administration by honoratiores and the ruler's dependence upon 
their voluntary participation in England, the success of revolutions in 
France and the other Latin countries, the independence of the social 
revolutionary ethos in RusFni Lave impeded or destroyed that internalized 
devotion to authority which has remained an almost ineradicable legacy 
of unrestrained patrimonial rule in Germany and appears undignified 
to the outside observer. From ■■-. political viewpoint ths German has in- 
deed been the typical Unie r tan (subject) in .the most poignant sense 
of the word, -and therefor." L^'heran^m was his proper religiosity. 

The only specific i'ducatio?:3i sysic-isi of patriarchal patrimonial ism 
is administrative training, which aJonc provides the basis for a stratum 
that in its most consistent form is an educated status group of the well- 
known Chinese type- However, education may also remain in the hands 
of the clergy as possessors of the skills usef"* Tor patrimonial administra- 
tion, whiclt needs accounting and clerical work unknown to feudalism. 
This happened in the Near F-ist and in the Occidental Middle Ages. 
In this case education has ;> specifically literary character. Education may 
also be secular profession:)] training in law, as it developed in the medi- 
eval universities, but even then it remains a literary education, and its 
increasing rationalization leads to the mentality of specialization and to 
the ideal of a "vocation" that is typical of modern bureaucracy. Patri- 
monial education always lacks the features of playfulness and elective 
affinity to art, of heroic asceticism and hero worship, of heroic honor 
and heroic hostility to the utilitarianism of business and office — features 
which feudalism inculcates and preserves. Indeed the administrative 
"organization" (cimtliche Ben-iefe) is an impersonal "business" (sacWic&es 
Geschaft): The patrimonial official bases his honor not upon his "being," 
but on his "functions," he expects advantages and" promotion from his 
"services"; the idleness, the games and the commercial nonchalance of 
the knight must appear to him as slothfulness and lack of efficiency. 
The status ethos adequate to the patrimonial official enters here into the 
avenues of the bourgeois business ethos. Already the philosophy of the 
ancient Egyptian officials, as we know it from exhortations by scribes 
and officials to their sons, has a distinctly utilitarian bourgeois character. 
In principle, nothing has changed since, apart from the increasing ra- 
tionalization and professional specialization in the development from 
patrimonial officialdom to modern bureaucracy. 

The main difference between the utilitarianism of the officials and 
the specifically bourgeois ethos has always been the former's abhorrence 
of the acquisitive drive, which is natural for a person who d^aws a fixed 
salary or takes fixed fees, who is ideally incorruptible, and whose per- 
formance finds its dignity precisely in the fact that it is not a source of 



1 4 ] Ethos and Style of Life i I o 9 

commercia] enrichment. To that extent the spirit of patrimonial admin- 
istration, interested as it is in public peace, the preservation of traditional 
means of livelihood and the satisfaction of the subjects, is alien to and 
distrustful of capitalist development, which revolutionizes the given 
social conditions; this was true, as we have seen, most of all of the Con- 
fucian etho: and to a moderate degree everywhere, especially since re- 
sentment against the emergent autonomous economic powers became an 
additional factor. So far it is no accident that specifically modern capi- 
talism developed first in England where the ruJe of officials was 
minimized, just as under similar conditions ancient capitalism had 
reached its high point. This kind of resentment and the tr-jjif-onfil 
status-oriented attitude of the bureaucracy toward rational economic 
profit eventually became the motives on which modern state welfare 
policies could rely and Which facilitated them especially in bureaucratic 
states; however, these motives also determined the limitations and the 
peculiarities of these policies. 



NOTES 

1. Some of Weber's sources from the laige German literature on feudalism 
have already been cited in the Soc. of Law and elsewhere (G. v. Below, H. Mitteis, 
etc.). Among Weber's contemporaries Otto Hintze in particular was impressed by 
his comparative approach. Hintze, who for a Prussian historian had a rare sense 
for the comparative method, wrote "Wesen unci Verbreirung des Feudal ism us" 
(1929), "Typologie der standischen Verfassimgen des Abendiandes" 093°), 
"Weltgeschiehtliche Bedingungen der Reprasentativverfassung" (1931), and "Das 
monarchische Prinzip und die konstitutionelle Verfassung" (191 1); see id., Staat 
und Verfassung (Gottingen: Vandenhoeck, 1962}, Hintze also reviewed Weber's 
Collected Essays on the Sociology of Religion (1922) and Wirtschaft und Gesell- 
tchaft (1926); see id., Soziologie and Geschichte (Gottingen: Vandenhoeck, 
1964). 

For Otto Brunner's summary treatment of the literature on feudalism, see 
"Feudal ism us. Em Beitrag zur Begriffsgeschichte," Ahademie der Wissenschaften 
und der Literatur. Abh. der Geistes- und sozialwissenschaftlichen Klasse, 1958, 
vol. 10, 3-39. 

Apart from the standard works by Marc Bloch and Francois Ganshof on Eu- 
ropean feudalism, the English readers should consult John Whitney Hall, "Feu- 
dalism in Japan" (Comparative Studies in Society and History, V, Oct. 1962), 
since Japan is the other major case of feudalism. See also Vatro Murvar, "Some 
Reflections on Weber's Typology of Herrschaft," and Norman Jacobs, "The Pa- 
trimonial Thesis and Pre- Modem Japanese Herrschaft," both in The Sociological 
Quarterly, V: 4 , 1964, 374-95. 

2. See Ulrich Stutz, Geschichte des kirchlichen Bene fizialwe sens (Scientia 
Alen, 1961), sec, ed. (first published in 189;); id., Die Eigenkircke (Berlin, 
1895) and article on "Eigenkirche" in Realenzyklopridie fiir protestantische Theo- 
fogicund Kirche, XXIII, 191 3, 364-77. (Rand W) 



I i IO FEUDALISM, STANDESTAAT AND PATRIMONII! ISM [ Ck. Kill 

3. Cf. Weber's observations in "Hinduismus und Buddhismus," GAzRS II, 
iQjff: English in Relityov of India, 270$. (W) 

4. Cf.C.H. Becker, /siam-StWiew, I ( 1924). CW) 

5. See Karl Marx, "Das Elend der Philosophic," in Marx/Engeis, Werke 
(Berlin, 1959), IV, 13^. 

6. Cf. C. H. Becker, op. tit., 6jf., 263s. (W) 

7. See Hermann Levy, Monopoly onti Competition (London, 1911) and 
Economic Liberalism (.London, 1913), ch. III; German editions of 1909 and 
1902 respectively. 

8. For a critique, see Alfons Dopsch, Herrschc-jt urtd Bauer in der deutscken 
Kaiserzeit (Stuttgart: Fischer, 1964; first publ. in 1939), *99ff- Dopsch, a con- 
temporary of Weber, criticized him for asserting that the distribution of individ- 
ual wealth was stabilized by feudalism and pointed to the busy trade in fiefs 
among the nobility and the monasteries during the 12th and 13th century. How- 
ever, he ignored the comparative nature of Weber's statement, i.e., that it was 
made in comparison to patrimonial structures, as well as Weber's attempt to assess 
the balance of forces that restrain and favor the development of capitalism. Dopsch 
argues that the subleasing of fiefs, which Weber may have underestimated, fur- 
thered economic growth and that the feudal lords were motivated not by tradi- 
tionalist economic standards (p. 210) but by a "rationally calculating economic 
spirit" (p. 207). However, Weber points out subsequently that feudal restrictions 
were not necessarilv inimical to the money economy. Dopsch consistently blurs 
Weber's distinction between the ubiquitous acquisitive spirit and the specific mo- 
tives and activities that entered into the making of modern capitalism. During the 
time Weber wrote 'Economy and Society, Dopsch tried to prove that the capitalist 
enterprise and market production existed as early as the Carolingian period (Die 
Wirtsckaftaentwicklung der KarolingerzeU, 1912). 



CHAPTE 



. XIV 



CHARISMA AND ITS 
TRANSFORMATION 



1 

The Nature and Impact of Charisma 



i . The Sociological Nature of Charismatic Authority 1 

Bureaucracy and patriarchalism are antagonistic in many respects, 
but they share continuity as one of their most important characteristics. 
In this sense both are structures of everyday life. Patriarchalism, in 
particular, is rooted in the need to meet ongoing, routine demands, and 
hence has its first locus in the economy, to be precise, in those of its 
'branches which are concerned with normal want satisfaction. The patri- 
arch is the natural leader in matters of everyday life. In this respect, 
bureaucracy is merely the rational counterpart of patriarchalism. Bu- 
reaucracy, too, is a permanent structure and, with its system of rational 
rules, oriented toward the satisfaction of calculable needs with ordinary, 
everyday means. 

All extraordinary needs, i.e., those which transcend the sphere of 
everyday economic routines, have always been satisfied in an entirely 
heterogeneous manner: on a charismatic basis. The further we go back 
into history, the more strongly does this statement hold. It means the 
following: that the "natural" leaders in moments of distress — whether 

tim] 



I I I 2 CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

psychic, physical, economic, ethical, religious, or political — were neither 
appointed officeholders nor "professionals" in the present-day sense (i.e., 
persons performing against compensation a "profession" based on train- 
ing ;mci special expertise), but rather the bearers of specific gifts of body 
and mint] 'bat were considered "supernatural" (in the sense that not 
evcrvbody coukl have access to diem), 

I he term "charisma" in this context must be used in a completely 
value-free sense. The heroic ecstasy of the Nordic berserk, the legendary 
Irish folk hero Cuchulain or the Homeric Achilles was a manic seizure. 
The berserk, for example, bit into his shield and all about himself, like a 
mad dog, before rushing off in bloodthirsty frenzy; for a long time his 
seizure was said to have been artificially induced through drugs. In 
Byzantium, a number of such "blond beasts" were kept just like war 
elephants in ancient times, i he d-stasis of tfu Shamans is linked io 
constitutional epilepsy, the possession and testing of which nioves the 
charismatic oualifi cation, hor us. both forms oi ecstasy are not edifying; 
neither is the kind of rcvij;:ii;>n U>:"k! in the Holv Rnok of the !\ Mor- 
mons: if we were to ev'du.d;' ihi> icvchrion, we would perhaps be forced 
to call it a rank swIiiJic. 1 fuwc'CT, viciolosjv is not concerned with such 
value judijtin ?;t.>. Important is that the head of the Mormons and 
thee neroes" and "magicians" proved their charisma in the eves of 
their adherents, 1 hey practiced their arts ; and they exercised their 
authority, by virtue of this gift ("charisma") and, where the idea of 
God had already been clearly established, by virtue of the Divine mis- 
sion inherent in their ability. This was true of doctors and prophets 
just as much as of judges, military leaders, or the leaders of great hunt- 
ing expeditions. 

It is to Rudolf Sohm's credit that he worked out the sociological 
character of this kind of domination (Gewaltstrukt-ur*); however, since 
he developed this category with regard to one historically important case 
—the rise of the ecclesiastic authority of the early Christian church — , 
his treatment was bound to be one-sided from the viewpoint of historical 
diversity. 2 In principle, these phenomena are universal, even though 
they are often most evident in the religious realm. 

In radical contrast to bureaucratic organization, charisma knows no 
formal and regulated appointment or dismissal, no career, advancement 
or salary, no supervisory or appeals body, no local or purely technical 
jurisdiction, and no permanent institutions in the manner of bureau- 
cratic agencies, which are independent of the incumbents and their 
personal charisma. Charisma is self-determined and sets its own limits. 
Its bearer seizes the task for which he is destined and demands that 
others obey and follow him by virtue of his mission. If those to whom 



i ] The Nature and Impact of Charisma 1113 

he feels sent do not recognize him, his claim collapses; if they recognize 
it, he is their master as long as he "proves" himself. However, he does 
not derive his claims from the will of his followers, in the manner of an 
election; rather, it is their duty to recognize his charisma. Chinese theory 
makes the emperor's right to govern dependent upon popular consent, 
but this is just as little an instance of popular sovereignty as is the 
necessity of the prophet's "recognition" by the believers in the early 
Christian congregation. In the Chinese case this is simply the recogni- 
tion of the charismatic character of the royal office, which requires his 
personal qualification and effectiveness. As a rule, charisma is a highly 
individual quality. This implies that the mission and "the power of its 
bearer is qualitatively delimited from within, not by an external order. 
Normally, the mission is directed to a local, ethnic, social, political, 
vocational or some other group, and that means that it also finds its 
limits at the edges of these groups. 

As in all other respects, charismatic domination is also the opposite 
of bureaucracy in regard to its economic substructure. Bureaucracy de- 
pends on continuous income, at least a potiori on a money economy 
and tax money, but charisma lives in, not off, this world. This must be 
understood properly. Frequently charisma abhors the owning and mak- 
ing of money — witness Saint Francis and many of his kind. But this is 
not the rule. In our value-free sense of the term, an ingenious pirate may 
be a charismatic ruler, and the charismatic political heroes are out for 
booty — especially, money. The point is that charisma rejects as un- 
dignified all methodical rational acquisition, in fact, all rational eco- 
nomic conduct. This accounts also for its radical difference from the 
patriarchal structure, which rests upon an orderly household. In its pure 
form charisma is never a source of private income; it is neither utilized 
for the exchange of services nor is it exercised for pay, and it does not 
know orderly taxation to meet the material demands of its mission; 
rather, if it has a peaceful purpose, it receives the requisite means 
through sponsors or through honorific gifts, dues and other voluntary 
contributions of its own following. In the case of charismatic warriors, 
the booty is both means and end of the mission. In contrast to all patri- 
archal forms of domination, pure charisma is opposed to all systematic 
economic activities; in fact, it is the strongest anti-economic force, even 
when it is after material possessions, as in the case of the charismatic 
warrior. For charisma is by nature not a continuous institution, but in 
its pure type the very opposite. In order to live up to their mission the 
master as well as his disciples and immediate following must be free of 
the ordinary wordly attachments and duties of occupational and family 
life. Those who have a share (_ K ^P°0 in -charisma must inevitably turn 



I I I 4 CHARISMA ,AND ITS TRANSFORMATION [ Ck. XIV 

away from -the world : witness the statute of the Jesuit order forbidding 
members to hold ecclesiastic offices; the prohibitions for members of 
other orders to own property, or for the order itself, as in the original 
rule of Saint Francis; the celibacy of priests and knights of an order, the 
actual adherence to the rule of celibacy on the part of numerous holders 
of prophetic or artistic charisma. According to the type of charisma and 
the conduct corresponding to it, the economic conditions of participation 
may contrast with one another. It is just as consistent for modem charis- 
matic movements of artistic origin to consider "men of independent 
means" — in plain words, rentiers — the most qualified followers of the 
charismatic leader, as it was for the medieval monasteries to demand the 
economic opposite, the friar's vow of poverty.* 



2. Foundations and Instability of Charismatic Authority 

Charismatic authority is naturally unstable. The holder may lose his 
charisma, he may feel "forsaken by his God," as Jesus did on the cross 
[cf. Ps. 22:1, Mat. 27:46, Mark 15:34]; it may appear to his followers 
that "his powers have left him." Then his mission comes to an end, and 
hope expects and searches for a new bearer; his followers abandon him, 
for pure charisma does not recognize any legitimacy other than one 
which flows from personal strength proven time and again. The charis- 
matic hero derives his authority not from an established order and 
enactments, as if it were an official competence, and not from custom 
or feudal fealty, as under patrimonialism. He gains and retains it solely 
by proving his powers 'n practice. He must work miracles, if he wants 
to be a prophet. He mm. perform heroic deeds, if he wants to be a war- 
lord. Most of all, his divine mission must prove itself by bringing well- 
being to his faithful followers; if they do not fare well, he obviously is 
not the god-sent master. It is clear that this very serious meaning of 
genuine charisma is radically different from the convenient pretensions 
of the present "divine right of kings," which harks back to the "in- 
scrutable" will of the Lord, "to whom alone the monarch is respon- 
sible-"* The very opposite is true of the genuinely charismatic ruler, 
who is responsible to the ruled — responsible, that is, to prove that he 
himself is indeed the master willed by God. 

For this reason a ruler such as the Chinese emperor, whose power 
still contains — in theory — important charismatic vestiges, may publicly 
accuse himself of his sins and insufficiencies, if his administration fails 
to banish the distress of the ruled, whether it is caused by floods or 
unsuccessful wars; we have witnessed this in China even during the 



* ] - The Nature and Impact of Charisma r i i 5 

last decades. If this penitence does not propitiate the gods, the ruler 
faces deposition and death, often enough as an expiatory sacrifice. This 
is the concrete meaning of Meng-tss's (Menciusv statement that the 
people's voice is God's voice (according to him, the only way in which 
God speaks): If the people withdraw their recognition, the master be- 
comes a mere private person — this is explicitly stated — , and if he claims 
to be more, a usurper deserving of punishruent. This state of affairs is 
also found under primitive conditions, without the pathos of these 
highly revolutionary phrases. Since all primitive authorities have in- 
herent charismatic qualities, with the exception of patriarchalism in the 
strictest sense, the chief is often simply deserted if success is unfaithful 
to him. 



3. The Revolutionary Nature of Charisma 

" The mere fact of recognizing the personal mission of a charismatic 
master establishes his power. Whether it is more active or passive, this 
recognition derives from the surrender of the faithful to the extraordi- 
nary and unheard-of, to what is alien to all regulation and tradition and 
therefore is viewed as divine — surrender which arises from distress or 
enthusiasm. Because of this mode of legitimation genuine charismatic 
domination knows no abstract laws and regulations and no formal ad- 
judication. Its "objective" law flows from the highly personal experience 
of divine grace and god-like heroic strength and rejects all external order 
solely for the sake of glorifying genuine prophetic and heroic ethos. 
Hence, in a revolutionary and sovereign manner, charismatic domina- 
tion transforms all values and breaks all traditional and rational norms; 

"It has been written. . .,butIsayuntoycu " 

The specific form of charismatic adjudication is prophetic revelation, 
the oracle, or the Solomonic award of a charismatic sage, an award based 
on concrete and individual considerations which yet demand absolute 
validity. This is the realm proper of "ko^i-justice" in the proverbial, not 
the historical sense. For the adjudication of the (historical) Islamic 
kadi is determined by sacred tradition and its interpretation, which 
frequendy is extremely formalistic; rules are disregarded only when 
those other means of adjudication fail. Genuine charismatic justice does 
not refer to rules; in its pure type it is the most extreme contrast to 
formal and traditional prescription and maintains its autonomy toward 
the sacredness of tradition as much as toward rationalist deductions from 
abstract norms. We cannot compare here the recourse to the principle 
aeauum et bonum in Roman law and the original meaning of "equity" 



I I 1 6 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

in English law to charismatic justice in general and the theocratic 
feWi-justice of the Islam in particular. 5 Both are products partly of a 
law that is already strongly rationalized and partly of abstract natural 
law; at any rate, the principle ex fide bona refers to standards of fairness 
in business relations and thus is just as little truly irrational justice as 
our own principle of "judicial discretion." By contrast, all adjudication 
which uses ordeals as evidence derives from charismatic justice. How- 
ever, because such adjudication replaces personal charismatic authority 
by a regular procedure which formally determines the will of God, it 
belongs already to the realm of that depersonalization of charisma with 
which we will deal soon. 

As we have seen, bureaucratic rationalization, too, often has been a 
major revolutionary force with regard to tradition. But it revolutionizes 
with technical means, in principle, as does every economic reorganiza- 
tion, "from without"-. It first changes the material and social orders, and 
through them the people, by changing the conditions of adaptation, and 
perhaps the opportunities for adaptation, through a rational deter- 
mination of means and ends. By contrast, the power of charisma rests 
upon the belief in revelation and heroes, upon the conviction that cer- 
tain manifestations — whether they be of a religious, ethical," artistic, 
scientific, political or other kind — are important and valuable; it rests 
upon "heroism" of an ascetic, military, judicial, magical or whichever 
kind. Charismatic belief revolutionizes men "from within" and shapes 
material and social conditions according to its revolutionary will. Of 
course, this contrast must be correctly understood. In spite of vast dif- 
ferences, "ideas" have essentially the same psychological roots whether 
they are religious, artistic, ethical, scientific or whatever else; this also 
applies to ideas about political and social organization. It is a time-bound, 
subjective value-judgment which would like to attribute some of these 
ideas to "reason" and others to "intuition" (or whatever other distinc- 
tions may be used). The mathematical imagination of a Weierstrass, 
for instance, is "intuition" in exactly the same sense as is that, of any 
artist, prophet — or demagogue. 8 But not here lies the difference. (Par- 
enthetically, in the value sphere, which does not concern us here, all 
these kinds of ideas — including artistic intuition — have in common that 
to objectivate themselves, to prove their reality, they must signify a 
grasp on demands of the "work" or, if you prefer, a being seized by 
them; they are not merely a subjective feeling or experience.) The 
decisive difference — and this is important for understanding the mean- 
ing of "rationalism" — is not inherent in the creator of ideas or of "works," 
or in his inner experience; rather, the difference is rooted in the manner 
in which the ruled and led experience and internalize these ideas. As 



i ] - The Nature and Impact of Charisma i i i 7 

we have shown earlier, 7 rationalization proceeds in such a fashion that 
the broad masses of the led merely accept or adapt themselves to the 
external, technical resultants which are of practical significance for their 
interests (as we "learn" the multiplication table and as too many jurists 
"learn" the techniques of law), whereas the substance of the creator's 
ideas remain irrelevant to them. This is meant when we say that 
rationalization and rational organization revolutionize "from the out- 
side," whereas charisma, if it has any specific effects at all, manifests its 
revolutionary power from within, from a central metanoia [change] of 
the followers' attitudes. The bureaucratic order merely replaces the 
belief in the sanctity of traditional norms by compliance with rationally 
determined rules and by the knowledge that these rules can be superseded 
by others, if one has the necessary power, and hence are not sacred. But 
charisma, in its most potent forms, disrupts rational rule as well as tradi- 
tion altogether and overturns all notions of sanctity. Instead of reverence 
for customs that are ancient and hence sacred, it enforces the inner 
subjection to the unprecedented and absolutely unique and therefore 
Divine. In this purely empirical and value-free sense charisma is indeed 
the specifically creative revolutionary force of history. 



4. Range of Effectiveness 

Both charismatic and patriarchal power rest on personal devotion to, 
and personal authority of, "natural" leaders, in contrast to the appointed 
leaders of the bureaucratic order, yet this basis is very different in the two 
cases. Just like the official, the patriarch benefits from devotion and au- 
thority as a bearer of norms, with the difference that these norms are 
not purposively established as are the laws and regulations of bureau- 
cracy, but have been inviolable from rimes out of mind. The bearer of 
charisma enjoys loyalty and authority by virtue of a mission believed to 
be embodied in him; this mission has not necessarily and not always been 
revolutionary, but in its most charismatic forms it has inverted all vahi$ 
hierarchies and overthrown custom, law and tradition. In contrast to the 
charismatic structure that arises out of the anxiety and enthusiasm of an 
extraordinary situation, patriarchal power serves the demands of everyday 
life and persists in its function, as everyday life itself, in spite of all 
changes of its concrete holder and its environment. Both structures are 
found in all areas of life. Many of the old Teutonic armies fought in a 
patriarchal manner, each lineage group led by its head; the armies of 
coloni of ancient Oriental monarchs and the contingents of Frankish 
retainers, who took the field under their seniores, were patrimonial. The 



I I I 8 CHA1USMA AND ITS TKANBFOBMATION [ Ch. XIV 

patriarch's religious function and domestic worship persist side by side 
with the official community cult, on tl)e one hand, and the great move- 
ments of charismatic prophecy, which are almost always revolutionary, on 
the other. Whether we look at Teutonic or American Indian tribes, the 
charismatic hero, who marches out with a voluntary following, appears 
next to the chieftain of peace, who is responsible for the routine economic 
affairs of the community, and next to the popular levy, which is mobilized 
in the case of tribal warfare. In an official war of the whole tribe, too, the 
normal pe?.ce-time authorities are often replaced by a warlord who is 
proclaimed ad hoc the "leader of the army" (Herzog), since he proved 
himself a hero in military exploits. 

In contrast to the revolutionary role of charisma, the traditional every- 
day needs in politics and religion are met by the patriarchal structure, 
which is based upon habituation, respect for tradition, piety toward par- 
ents and ancestors, and the servant's personal faithfulness. The same is 
true in the economic field. As an orderly round of activities which 
procures the material means of want satisfaction, the economy is the 
specific locus of patriarchal rulership and, with the rise of the enterprise 
in the course of rationalization, also of bureaucratic domination. How- 
ever, charisma is by no means alien to the economy. Under primitive 
conditions charismatic features are frequently found in one economic 
branch, the relevance of which declined with the advance of material 
culture: hunting, which was organized like a military operation, even at 
a later stage, as can be seen from the Assyrian royal inscriptions. How- 
ever, the antagonism between charisma and everyday life arises also m 
(he capitalist economy, with the difference that charisma does not con- 
front the household but the enterprise. An instance of grandiose robber 
capitalism and of a spoils-oriented following is provided by Henry Vil- 
lard's exploits. [In 1889] he organized the famous "blind pool" in order 
to stage 3 stock exchange raid on the shares of the Northern Pacific Rail- 
road; he asked the public for a loan of fifty million pounds without re- 
vealing his goal, and received it without security by virtue of his 
reputation. The structure and spirit of this robber capitalism differs radi- 
cally from the rational management of an ordinary capitalist large-scale 
enterprise and is most similar to some age-old phenomena: the huge 
rapacious enterprises in the financial and colonial sphere, and "occasional 
trade" with its mixture of piracy and slave hunting. The double nature 
or what may be called the "capitalist spirit," and the specific character of 
modem routinized capitalism with its professional bureaucracy, can be 
understood only if these two structural elements, which are ultimately 
different but everywhere intertwined, are conceptually distinguished. 



i ] - The Nature and Impact of Charisma 1119 

5. The Social Structure of Charismatic Domination 

It is true that the "purer" charismatic authority in our sense is, the 
less can it be understood as an organization in the usual sense: as an 
order of persons and things that function according to the means-ends 
scheme. However, charismatic authority does not imply an amorphous 
condition; it indicates rather a definite social structure with a staff and an 
apparatus of services and material means that is adapted to the mission 
of the leader. The personal staff constitutes a charismatic aristocracy 
composed of a select group of adherents who are united by discipleship 
and loyalty and chosen according to personal charismatic qualification. 
For the charismatic subject adequate material contributions are considered 
a dictate of conscience, although they are formally voluntary, unregulated 
and irregular; they are offered according to need and economic capacity. 
The more typical the charismatic structure, the less do followers or dis- 
ciples obtain their material sustenance and social position in the form of 
benefices, salaries or other kinds of orderly compensation, tides or ranks. 
Instead, insofar as the individual's maintenance is not already assured, the 
followers share in the use of those goods which the authoritarian leader 
receives as donation, booty or endowment and which he distributes 
among them without accounting or contractual fixation. Thus the fol- 
lowers may have a claim to be fed at the common table, to be clothed 
and to receive honorific gifts from the leader, and to share in the social, 
political or religious esteem and honor in which he himself is held. Any 
deviation from this pattern affects the "purity" of the charismatic struc- 
ture and modifies it in the direction of other structures. 



6. The Communist Want Satisfaction of the Charismatic 
Community 

Next to the household, charisma is thus the second important histori- 
cal representative of communism, defined here as the absence of formal 
accountability in the consumption sphere, not as the rational organization 
of prodttction for a common account (as under socialism). Every 
historical instance of communism in this sense has either a traditional, 
that means, patriarchal basis or the extraordinary foundation of charis- 
matic belief; in the former case it is household communism, and only in 
this form has it been an everyday phenomenon; in the latter case it was, 
if fully developed, either the spoils communism of the camp or the 
monastery's communism of love with its variations and its degeneration 
into cantos and alms-giving. In various degrees of purity the spoils com- 



I I 2 O CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

munism of the camp is found in all charismatic warriors' organizations, 
from the pirate state of the Ligurian islands to the Islamic state of the 
caliph Omar and the military orders of Christianity and of Japanese 
Buddhism. In one form or another, the communism of love was para- 
mount in all religions. It persists among the professional followers of the 
Divine: the monks. We also find it in numerous Pietist organizations — 
for example, among Labadie's followers*— and in other high-strung reli- 
gious groups of an exclusive character. The preservation of authentic 
heroism and saintliness appears to the adherents dependent upon the 
retention of a communist basis and the absence of the striving for indi- 
vidual property. And correctly so, since charisma is basically an extra-' 
ordinary and hence necessarily non-economic power, and its vitality is 
immediately endangered when everyday economic interests become pre- 
dominant, as it threatens to happen everywhere. The first step in this 
direction is the prebend — an allowance replacing the old communist 
maintenance out of common provisions — , which has here its real origin. 
With all available means the charismatic leaders attempt to limit this 
disintegration. All warrior states retained remnants of charismatic com- 
munism — Sparta is a typical example — and tried to protect the heroic 
individual against the "temptation" posed by responsibility for property, 
rational acquisition and a family, just like the religious orders did. The 
adjustment between these charismatic remnants and the individual's 
economic interests, which arise with prebendalization and persist ever 
after, may take the most diverse forms. Invariably, however, the reign 
of genuine charisma comes to an end when it can no longer withhold 
the unqualified permission to found families and to engage in economic 
pursuits. Only the common danger of military life or the love ethos of 
an unworldly discipleship can preserve such communism, which in turn 
is the only guarantor of the purity of charisma vis-^-vis everyday interests. 
Every charisma is on the road from a turbulently emotional life that 
knows no economic rationality to a slow death by suffocation under the 
weight of material interests : every hour of its existence brings it nearer to 
this end. 



« ] Genesis fr Transformation of Charismatic Authority mi 

ii 

The Genesis and Transformation 
of Charismatic Authority 



r . The Routinization of Charisma 

Charismatic rulership in the typical sense described above always re- 
sults from unusual, especially political or economic situations, or from 
extraordinary psychic, particularly religious states, or from both together. 
It prises from collective excitement produced by extraordinary events and 
from surrender to heroism of any kind. This alone is sufficient to warrant 
the conclusion that the faith of the leader himself and of his disciples in 
his charisma — be it of a prophetic or any other kind — is undiminished, 
consistent and effective only in statu nascendi, just as is true of the faith- 
ful devotion to him and his mission on the part of those to whom he 
considers himself sent. When the tide that lifted a charismatically led 
group out of everyday life flows back into the channels of workaday 
routines, at least the "pure" form of charismatic domination will wane 
and rum into an "institution"; it is then either mechanized, as it were, 
or imperceptibly displaced by other structures, or fused with them in th? 
most diverse forms, so that it becomes a mere component of a concrete 
historical structure. In this case it is often transformed beyond recogni- 
tion, and identifiable only on an analytical level. 

Thus the pure type of charismatic rulership is in a very specific sense 
unstable, and all its modifications have basically one and the same cause: 
The desire to transform charisma and charismatic blessing from a unique, 
transitory gift of grace of extraordinary times and persons into a perma- * 
nent possession of everyday life. This is desired usually by the master, 
always by his disciples, and most of all by his charismatic subjects. 
Inevitably, however, this changes the nature of the charismatic structure. 
The chari?matic following of a war leader .may be transformed into a 
state, the charismatic community of a prophet, artist, philosopher, ethical 
or scientific innovator may become a church, sect, academy or school, and 
the charismatic group which espouses certain cultural ideals may develop 
into a party or merely the staff of newspapers and periodicals. In every 
case charisma is henceforth exposed to the conditions of everyday life and 



I I 2 2 CHARISMA AND ITS TRANSFOKMATION [ Cfe. XIV 

to the powers dominating it, especially to the economic interests. The 
turning point is always reached when charismatic followers and disciples 
become privileged table companions, as did the trustis of the Frankish 
king, and subsequently fief-holders, priests, state officials, party officials, 
officers, secretaries, editors and publishers, all of whom want to live off 
the charismatic movement, or when they become employees, teachers 
and others with a vested occupational interest, or holders of benefices 
and of patrimonial offices. The charismatically dominated masses, in turn, 
become tax-paying subjects, dues-paying members of a church, sect, party 
or club (Verein), soldiers who are systematically impressed, drilled and 
disciplined, or law-abiding "citizens." Even though the aposde admon- 
ishes the followers to maintain the purity of the spirit, the charismatic 
message inevitably becomes dogma, doctrine, theory, reglement, law or 
petrified tradition. 

In this process the two basically antagonistic forces of charisma and 
radition regularly merge with one another. This stands to reason, for 
ieir power does not derive from purposive-rational regulations and their 
'.ibservance, but from the belief in the sanctity of an individual's au- 
thority, which is unquestionably valid for the ruled (children, disciples, 
retainers or vassals), whether or not it really claims to be absolute. Both 
charisma and tradition rest on a sense of loyalty and obligation which 
always has a religious aura. 

The external forms of the two structures of domination are also often 
similar to the point of being identical. It is not directly visible whether 
the compankjpage of a war leader with his followers has a patrimonial or 
a charismatic cnaracter, this depends upon the spirit which imbues, 
the community, and that means upon the basis of the rulers claim to 
legitimacy: authority sanctified by tradition, or faith in the person of the 
hero. The transition is fluid. As soon as charismatic domination loses its 
personal foundation and the acutely emotional faith which distinguishes 
it from the traditional mold of everyday life, its alliance with tradition 
& the most obvious and often the only alternative, especially in periods 
in which the rationalization of organizational techniques (Lehemtech- 
xik) is still incipient. In such an alliance the essence of charisma appears 
to be definitely abandoned, and this is indeed true insofar as its emi- 
nently revolutionary character is concerned. It is the basic feature of this 
ever recurring development that charisma is captured by the interest of 
all economic and social power holders in the legitimation of their pos- 
sessions by a charismatic, and thus sacred, source of authority. Instead 
of upsetting everything that is traditional or based on legal acquisition 
(in the modern sense), as it does in statu nascenM, charisma becomes a 
legitimation for "acquired rights." In this function, which is alien to its 



it \ Genesis & Transformation of Charismatic Authority i I z 3 

essence, charisma becomes a part of everyday life; for the needs which 
it satisfies in this way are universal, especially for one general reason 
[namely, the legitimation of leadership and succession]. 



2. The Selection of Leaders and the Designation of 
Successors 

Our earlier analysis of bureaucratic, patriarchal and feudal domina- 
tion dealt only with the manner in which these everyday powers func- 
tioned. It did not explore the criteria for the selection of the highest- 
ranking bureaucratic or patriarchal holder of power. Even the head of 
a bureaucracy might conceivably be a high official who moves into his 
position according to general rules. However, it is no accident that this, 
is usually not the case; at the least he is not selected according to the 
same norms as the officials in the hierarchy below him. Exacdy the pure 
type of bureaucracy, a hierarchy of appointed officials; requires an au- 
thority (Instanz) which has not been appointed in the same fashion 
as the other officials. The holder of patriarchal power is naturally given 
in the nuclear family of parents and children, and in the extended 
family he is established through unambiguous traditional prescription. 
This is not equally true of the head of a patriarchal state or a feudal 
hierarchy. 

For charismatic leadership, too, if it wants to transform itself into a 
perennial institution, the first basic problem is that of finding a succes- 
sor to the prophet, hero, teacher or -party leader. This problem inescap- 
ably channels charisma into the direction of legal regulation and tradi- 
tion. 

Given the nature of charisma, a free election of a successor is 
originally not possible, only the acknowledgment that the pretender 
actually has charisma. Hence the followers may have to wait for the 
epiphany of a personally qualified successor, temporal representative or 
prophet. Specific examples are the incarnations of Buddha and the 
Mahdis. Frequendy, however, there is no such incarnation, or it may 
even be ruled out by dogmatic considerations, as in the case of Christ 
and originally of Buddha. Only genuine (Southern) Buddhism drew 
radical conclusions from this conception: After his death Buddha's fol- 
lowers continued to be a community of mendicant monks which main- 
tained a minimal organization and consociation and, so far as possible, 
remained amorphous and intermittent. Wherever the old prescriptions 
of the Pali texts were followed, as was often the case in India and 
Ceylon, there is neither a patriarch nor is the individual firmly attached 



r I 2 4 CHARISMA AND ITS TRANSFORMATION [ Ck. XW 

to a monastic consociation. The "dioceses" are only convenient geo- 
graphical demarcations of areas within which the monks gather for the 
few communal ceremonies, which are free of any elaborate ritual. The 
"officialdom" is limited to the caretakers of clothes and a few similar 
functionaries. The renunciation of property on the part of the indi- 
vidual and the community and want satisfaction through the maecenatic 
system (gifts and alms) are carried as far as this is possible under the 
conditions of everyday life. Precedence in the order of seating or speak- 
ing at meetings is conferred only by seniority and by the relationship of 
the teacher to the novice who serves as his attendant (famulus'). 
Resignation is possible at any time, and admission requirements are very 
low (including an apprenticeship, a recommendation and release by the 
teacher, and a minimum of ceremonies). There is neither dogma nor 
professional instruction and preaching. The two half-legendary concilia 
of the first centuries were not repeated. 

It is certain that this highly amorphous character of the monastic 
community contributed heavily to the disappearance of Buddhism in 
India. It was, at any rate, possible only in a purely monastic community 
in which individual salvation was exclusively a personal matter. For in 
any other group such behavior, and a merely passive waiting for a new 
epiphany, will endanger the cohesion of the charismatic community, 
which yearns for the physical presence of the lord and master. If this 
strong desire to have a charismatic leader present all the time is ac- 
commodated, an important step in the direction of routinization has been 
made. Recurrent incarnation depersonalizes charisma. Its chosen holder 
must be sought either on the basis of some revealing characteristics and 
thus at least of some "rules" — like the new Dalai Lama, whose selection 
does not differ in principle from that of the Apis bull — ; or some other 
definite and regular means must be available. In the latter category we 
find the belief, which easily emerges, that the holder of charisma him- 
self is qualified to designate his successor or, if he is considered a unique 
incarnation such as Christ, his temporal representative. In all originally 
charismatic organizations, whether prophetic or warlike, the designation 
of a successor or representative has been a typical means of assuring the 
continuity of domination. But this indicates, of course, a step from au- 
tonomous leadership based on the power of personal charisma toward 
legitimacy derived from the authority of a "source." Pertinent religious 
examples are well-known. Instead we refer to the Roman magistrates, 
who designated their successors from among qualified persons before 
they were acclaimed by the assembled army. The charismatic features 
of this mode of selection were preserved on a ceremonial level even after 
tenure in the office had been limited and formal -prior consent ("elec- 



it ] Genesis & Transformation of Charismatic Authority i i 2 5 

lion") by the citizens' army had been introduced in an effort to curb 
the powers of the office. The designation of a dictator in the field, dur- 
ing military exigencies that called for an extraordinary man, remained 
for a long time a characteristic remnant of the old pure type of charis- 
matic selection. The prince-ps emerged from the army's acclamation of 
the victorious hero as imperator; the lex de imperio did not make him 
the ruler, rather it acknowledged him as the rightful pretender. Hence, 
during the most typical period of the Principate, the only "legitimate" 
means of succession to the throne was the designation of a colleague 
and successor. This designation was regularly clothed in the form of 
an adoption. These customs, in turn, Undoubtedly had a strong in- 
fluence upon the Roman family, which came to accept the completely 
free designation of a heres to take the place of the late pater familias 
with respect to the gods and familia pecuniaque [family and property]. 
Even though the notion of the heritability of charisma was used in the 
case of succession by adoption — by the way, without ever being ac- 
cepted as an explicit principle in the period of military emperorship — , 
the principate itself always remained an office and the ■princeps con- 
tinued to be an official with specified bureaucratic jurisdiction as long 
as the military emperorship retained its Roman character. To have 
established the principate as an office was the achievement of Augustus, 
whose reform appeared to contemporaries as the preservation and restora- 
tion of Roman tradition and liberty, in contrast to the notion of a Hel- 
lenistic monarchy that was probably on Caesar's mind. 



3. Charismatic Acclamation 

If the charismatic leader has not designated a successor and if there 
are no obvious external characteristics, like those that usually facilitate 
identification in the case of incarnation, it may easily occur to the ruled 
that the participants (^clerict) in his exercise of authority, the disciples 
and followers, are best suited to recognize the qualified successor. At 
any rate, since the disciples have in fact complete control over the 
instruments of power, they do not find it difficult to appropriate this 
role as a "right." However, since the effectiveness of charisma rests on 
the faith of the ruled, their approval of the designated successor is 
indispensable. In fact, acknowledgment by the ruled was originally 
decisive. For example, even after membership in the [medieval German] 
college of Electors as a screening committee had become firmly circum- 
scribed, it remained a question of practical significance who of the Electors 
was to present the proposal to the assembled army, for in principle he was 



I I 2 6 CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

able to procure the acclamation for his personal candidate irrespective of 
the wishes of his colleagues. 

Thus designation by the closest and most powerful vassals and ac- 
clamation by the ruled is normally the end product of this mode of 
choosing a successor. In the "routine" patrimonial and feudal state we 
find this charismatically derived right of designation as the right of 
nomination (yorwahl recht) of the most important patrimonial officials 
or vassals. In this respect the election of the German king was patterned 
after the election of a bishop. The "election" of a new king, pope, bishop 
or priest through CO designation by the disciples and followers (Elec- 
tors, cardinals, diocesan priests, chapter, elders) and (2) subsequent 
popular acclamation was therefore not an "election" in the modern sense 
of a presidential or parliamentary election. In its essence it was some- 
thing completely different, namely, the recognition or acknowledgment 
of a qualification older than the election, hence of a charisma, accept- 
ance of which its bearer was in fact entitled to demand. In principle, 
therefore, a majority decision was at first not possible, for a minority, no 
matter how small, might be right in its recognition of genuine charisma, 
just as the largest majority might be in error- Only one person can be 
the genuine bearer of charisma; the dissenting voters thus commit a 
sacrilege. All rules of the papal election aim at unanimity, and the 
election of an anti-king is the same thing as a church schism: It obscures 
the correct identification of the "chosen" ruler. In principle, such a situa- 
tion can be corrected only by Divine judgment as revealed in the out- 
come of a physical or magical combat, an institution found among pre- 
tenders to the throne, especially brothers, in certain African tribes and 
also elsewhere. 

Once the majority principle has come to prevail, it is considered the 
moral duty of the minority to yield to the right cause proven by the 
election and to join the majority after the event. Yet charismatic domina- 
tion begins to yield to a genuine electoral system once succession is 
determined by the majority principle. However, charisma is not alien 
to all modem, including all democratic, forms of election. Certainly the 
democratic system of so-called plebiscitarian rulership — the official 
theory of French caesarism — has essentially charismatic features, and 
the arguments of its proponents all emphasize this very quality. The 
plebiscite is not an "election," but the first or the renewed recognition of 
a pretender as a personally qualified, charismatic ruler; an example of 
the latter case is the French plebiscite of 1870. Periclean democracy, 
too, which according to the intent of its creator was the domination of. 
the demagogos by means of a charisma of the spirit and the tongue, re- 
ceived its characteristic charismatic trait by virtue of the election of one 



1 



H ] ■ Genesis fr Transformation of Charismatic Authority i i 2 7 

of the strategoi (the others being determined by lot, if Eduard Meyer's 
hypothesis is correct). 8 Wherever originally charismatic communities 
enter on the path of electing their rulers, the electoral procedures will 
in the long run be tied to norms. This happens above all because with 
the vanishing of the genuine roots of charisma the everyday power of 
tradition and the belief in its sanctity regain their preponderance, so 
that only the observance of tradition can henceforth guarantee the right 
choice. Acclamation by the ruled recedes increasingly behind the charis- 
matically determined right of prior election (Vorwahlrechi) by clerics, 
court officials or great vassals, and ultimately an exclusive oligarchic 
electoral agency comes into being, as in the Catholic church and the 
Holy Roman empire. Indeed this is bound to happen wherever a group 
with procedural experience has the right of nomination or of prior selec- 
tion. Throughout the history of the city, this prerogative everywhere 
turned into a right of cooptation on the part of ruling families, who in 
this fashion reduced the lord to the position of a primus inter -pares 
Carchon, consul, doge) and the electoral participation of the community 
to insignificance. In our own days we find a parallel, for example, in 
the development of the senatorial election in Hamburg. From a formal 
viewpoint this transformation is by far the most frequent "legal" road to 
oligarchy. 



4. The Transition to Democratic Suffrage 

However, the reverse may also happen: Acclamation by, the ruled 
may develop into a regular electoral system, with standardized suffrage, 
direct or indirect election, majority or proportional method, electoral 
classes and districts. It is a lon£ way to such a system. As far as the elec- 
tion of the supreme niler is concerned, only the United States went all 
the way — and there, of course, the nominating campaign within each 
of the two parties is one of the most important parts of the elec- 
tion business. Elsewhere at most the parliamentary representatives are 
elected, who in turn determine the choice of the prime minister and 
his colleagues. The development from acclamation of the charismatic 
leader to popular election occurred at the most diverse cultural stages, 
and every advance toward a rational, emotionally detached consideration 
of the process could not help but to facilitate this transformation. How- 
ever, only in the Occident did the election of the ruler gradually develop 
into the representative system. In Antiquity the boiotarchai represented 
[in the Boeotian League] their communities (as originally also the 
members of the House of Commons), not the voters as such, and 



I I 2 8 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

wherever, as in the case of Attic Democracy, the officials were really 
popular mandataries and representatives and the demos was subdivided 
into sections, the principle of rotation rather than of representation 
prevailed [and gave each section a turn]. However, if this principle is 
radically applied, the elected person is formally the agent and hence 
the servant of his voters, not their chosen master, just like in a system 
of direct democracy. This means that structurally the charismatic basis 
has been completely abandoned. But in countries with large administra- 
tive bodies such a radical application of the principles of direct democ- 
racy has very narrow limits. 



5. The Meaning of Election and Representation 

For purely technical reasons, it is not feasible to tie the mandate 
of the representative completely to the voters' will since situations are 
always unstable and unanticipated problems always arise. The recall of 
the representative through a vote of no confidence has been rarely tried, 
and the approval of parliamentary decisions through a referendum re- 
sults primarily in a considerable strengthening of all irrational powers of 
inertia, since as a rule the referendum precludes horse-trading and com- 
promises between the interested parties. Finally, increasing costs make 
frequent elections impossible. AD attempts at subordinating the repre- 
sentative to the will of the voters have in the long run only one effect: 
They reinforce the ascendancy of the party organization over him, which 
alone can mobilize the people. Both the pragmatic interest in the flexi- 
bility of the parliamentary apparatus and the power interest of the 
representatives and the party functionaries converge on one point: They 
tend to treat the representative not as the servant but as the chosen 
"master" of his voters. Most constitutions express this in the formula that 
the representative — like the monarch— is free to decide as he sees fit 
and that he "represents the interests of all the people." His actual power 
may vary considerably. In France the individual deputy normally con- 
trols not only the patronage of all offices, but he is in the proper sense 
of the word the "master" of his electoral district — this explains the re- 
sistance to the proportional system and the absence of party centraliza- 
tion; in the United States this is precluded by the predominance of 
the Senate, whose members occupy a similar position; in England and 
even more so in Germany the individual deputy, for very different 
reasons, is less the master than the agent of the economic interests in his 
electoral district, and patronage is controlled by the influential party 
chiefs. 



it ] Genesis & Transformation of Charismatic Authority i i 2 9 

Here we cannot deal further with the manner in which the electoral 
system distributes power; this depends upon the historically given mode 
of domination, and largely upon autonomous, that is, technically deter- 
mined factors. We have been concerned only with the principles. Any 
election may be purely formal without having any real significance. 
This happened in the comitia of early Imperial Rome and in many 
Hellenic and medieval cities, as soon as an oligarchic club or a despot 
managed to seize political power and in fact designated the candidates 
to be elected into office. Even where this is not formally the case, the 
observer is well advised, whenever historical sources speak in general 
terms of an "election" of the prince or any other power-holder by the 
community — as in the case of the Germanic tribes — , to understand the 
expression not in the modern sense but to interpret it as a mere acclama- 
tion of a candidate who was designated by some other authority and also 
elected from only one or a few qualified families. We are not at all deal- 
ing with an election, of course, when voting for a political ruler has a 
plebiscitary and hence charismatic character: when instead of a real 
choice between candidates only the. power claims of a pretender are be- 
ing acknowledged. 

Normal "elections," too, can only be a decision between several 
candidates who have been screened before being offered to the voters. 
This decision is brought about in the arena of electoral agitation through 
personal influence and appeal to material or ideal interests. The electoral 
provisions constitute, as it were, the rules of the game for this "peaceful" 
contest. The designation of these candidates takes place within the 
parties, for it stands to reason that party leaders and their followers, 
not the amorphous activities of voters, organize the contest for votes 
and thus for office patronage. Quadrennial campaign costs in the United 
States already amount to about as much as a colonial war, and in Ger- 
many too election costs are increasing for all parties which cannot 
draw upon the cheap manpower provided by Catholic auxiliary clergy- 
men, noble or office-holding notables, or salaried trade union and other 
secretaries. 

In addition to the power of money, the "charisma of rhetoric" gains 
great influence under these conditions. Its impact is not necessarily 
dependent upon any particular cultural level; it is also known to the 
assemblies of Indian chiefs and to the African palavers. Under Hellenic 
democracy it experienced its first great qualitative efflorescence, with 
immense consequences for the development of language and thought. 
However, from a purely quantitative viewpoint modern democratic 
electioneering with its "stump speeches" surpasses anything seen pre- 
viously. The more mass effects are intended and the tighter the bu- 



I I 3 O CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

reaucratic organization of the parties becomes, the less significant is 
the content of die rhetoric. For its effect is purely emotional, insofar 
as simple class situations and other economic interests do not prevail 
which must be rationally calculated and manipulated. The rhetoric 
has the same meaning as the street parades and festivals: to imbue the 
masses with the notion of the party's power and confidence in victory 
and, above all, to convince them of the leader's charismatic qualification. 
Since all emotional mass appeals have certain charismatic features, 
the bureaucratization of the parties and of electioneering may at its 
very height suddenly be forced into the service cf charismatic hero 
worship. In this case a conflict arises between the charismatic hero' 
principle and the mundane power of the party organization, as Roose- 
velt's [1912] campaign demonstrated. 



6. Excursus on Party Control by Charismatic Leaders, 
Notables and Bureaucrats 

Almost all parties originate as a charismatic following of legitimate 
or caesarist pretenders, of demagogues in the style of Pericles, Cleon or 
Lassalle. If parties develop at all into routinized permanent organiza- 
tions, they generally are transformed into structures controlled by 
honoratiores. Until the end of the 18th century this almost always meant 
a federation of nobles. In the Italian cities of the Middle Ages a per- 
son could be elevated into the ranks of the nobili as a political punish-> 
ment (since the great urban vassals were almost always Ghibelline); this 
was tantamount to disqualification from office and political disfranchise- 
ment. However, it was very tare, even under the -popolani, for a com- 
moner to hold leading offices, even though here as always the bourgeois 
strata had to finance the parties. The decisive element was that the 
military power of the parties, which often resorted to direct force, was 
provided by the nobility, in case of the Guelphs, for example, according 
to fixed contributions. Huguenots and Catholic League, the English 
parties, including the Roundheads, indeed all parties before the French 
Revolution typically developed into associations of notables, mosdy led 
by nobles, after they had passed through a period of charismatic excite- 
ment that broke down class and status barriers in favor of one or several 
heroes. The same was true of the so-called "bourgeois" parties in the 
19th century, even the most radical ones: all of them fell under the 
control of honoratiores, for only they could govern a party or the state' 
without compensation, and they had of course the advantage of status 
or economic influence. Whenever the owner of a landed estate changed 



H ] __Genesis t? Transformation of Charismatic Authority i i 3 1 

his party affiliation, it was more or less taken for granted in England, 
and in East Prussia until the eighreen-seventies, that not only his 
patrimonial sublets but also the peasants would follow Him — excepi in 
times of revolutionary excitement. At leasi: in the smaller towns, a some- 
what similar role was played by the mayors, judges, notaries, lawyers, 
ministers and teachers, and often idso by the manufacturers until the 
workers organized themselves as a class. We will discuss in a different 
context why the manufacturers, even apart from their class situation, 
were generally not suited for this role. In Germany the teachers consti- 
tute a stratum that — for reasons inherent in its particular status posi- 
tion — provides unpaid electoral agents to the so-called "bourgeois" 
parties, just as the clergy normally does for the authoritarian parties. 
In France the lawyers have always been available to the bourgeois 
parties, pardy because of their technical qualifications and partly — 
during and after the Revolution — because of their status position. 

During the French Revolution some party organizations began to 
evolve in a bureaucratic manner, but they were too short-lived to develop 
a definite structure; only in the last decades of the 19th century did 
bureaucratic organization gain the upper hand everywhere. The oscilla- 
tion between subordination to charisma and obedience to honoratiores 
was succeeded by the struggle of the bureaucratic organization with 
charismatic leadership. The more bureaucratization advances and the 
more substantial the interests in benefices and other opportunities be- 
come, the more surely does the party organization fall into the hands 
of experts, whether these appear immediately as party officials or at 
first as independent entrepreneurs — witness the American boss. These 
experts systematically maintain personal relations with the ward leaders, 
agitators, controllers and other indispensable personnel, and keep the 
voters' lists, files and all other materials required for running the party 
machine. Henceforth only the control of such an apparatus makes pos- 
sible an effective influence on the parry's policies and, if need be, a 
successful secession. The [1880] Sezession [in the German National 
Liberal Party] became possible because the Reichstag deputy Rickert 
had the lists of the ward leaders; from the beginning the subsequent 
breakup of the Freisinnige Partet appeared likely since Eugen Richter 
and Rickert each retained his own apparatus; and the fact that the former 
Secessionists managed to seize control of the party's executive board 
was c more serious symptom of the forthcoming split than all the 
preceding rhetoric. 8 Conversely, the impossibility of merging the per- 
sonnel of two rival organizations has been much more important than 
any substantive disagreement for the failure of attempts at party mergers; 
this is again illustrated by German experiences. 



I I 3 2 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

In normal times such a bureaucratic apparatus, more or less con- 
sistently developed, controls the party's course, including the vitally 
important nomination of candidates. However, in times of great public 
excitement, charismatic leaders may emerge even in solidly bureauc- 
ratized parties, as was demonstrated by Roosevelt's campaign in 1912. 
If there is a "hero," he will endeavor to break the technician's hold 
over the party by imposing plebiscitary designation and possibly by 
changing the whole machinery of nomination. Such an eruption of 
charisma, of course, always faces the resistance of the normally pre- 
dominant pros, especially of the bosses who control and finance the 
party and maintain its routine operations, whose tools the candidates 
usually are. For not only the . material interests of the job hunters 
depend upon the selection of the party candidates, but very much also 
those of the party sponsors— banks, contractors and trusts. Since the 
times of Crassus, 3 typical figure has been trie great sponsor who at 
times finances a charismatic leader and who expects from the latter's 
electoral victory government contracts, tax-farming opportune-its, mo- 
nopolies or other privileges, and especially the repayment with interest 
of his advances. But the regular party organization also lives off party 
sponsors. Rarely sufficient are the ordinary revenues, such as dues and 
possibly kickbacks from the salaries of officials who got their government 
job through the party (as in the United States). The direct exploita- 
tion of the party's power position enriches the participants, but does not 
necessarily fill the party coffers. For propagandists reasons dues are 
frequently abolished or depend upon the member's self-assessment; this ' 
puts the control over the party's finances even formally into the hands 
of the big sponsors. The regular manager and political professional, 
the boss or the party secretary, can expect their financial support only 
if he firmly controls the party machine. Hence every irruption of 
charisma is also a financial threat to the regular organization It happens 
quite frequently that the warring bosses or other managers of the com- 
peting parties combine in defense of their common economic interests 
to prevent the rise of charismatic leaders, who would be independent 
of the regular party apparatus. As a rule, the party organization easily 
succeeds in this castration of charisma. This will also remain true of the 
United States, even in the face of the plebiscitary presidential primaries, 
since in the long run the continuity of professional operations is tac- 
tically superior to emotional worship. Only extraordinary conditions 
can bring about the triumph of charisma over the organization. The 
peculiar relationship between charisma and bureaucracy that split the 
English Liberal party over the issue of the first home rule bill is well 
known: Gladstone's very personal charisma, which was irresistible to 



it ] -Genesis & Transformation of Charismatic Authority i i 3 3 

Puritan rationalism, forced the caucus bureaucracy to make an about- 
face and to stand with him despite the most serious objections and the 
prognosis of an unfavorable outcome of the elections; this resulted in 
the split of the apparatus that Chamberlain had created and in the 
loss of the electoral battle, A similar thing happened in the United 
States last year [1912.]. 

It stands to reason that a party's general character is significant 
for the chances that charisma has in its struggle with the party bureauc- 
racy. These chances vary greatly with the character of the party, which 
may be a pragmatic group of patronage seekers with an ad hoc program 
for a given campaign, or primarily a party of notables or of a class, or 
again predominantly an ideological party with a Weltanschauung These 
distinctions are, of course, always relative. In certain respects the chances 
of charisma are greatest in the first case. A patronage party makes it 
much easier, ceteris paribus, for impressive personalities to win the 
necessary following than do the petty-bourgeois organizations of notables 
i of the German parties, particularly of the liberal ones, with their pro- 
grams and Weltanschauungen which are forever the same; any attempt 
to adapt the latter to the momentary demagogic opportunities easily 
precipitates a catastrophe. However, it is probably not possible to gen- 
eralize on this score. The internal dynamics of party organization and 
the social and economic conditions of each concrete case are all too 
intimately interwoven in any given situation. 



7. Charisma and the Persistent Forms of Domination 

As these examples show, charismatic domination is by no means 
limited to primitive stages of development, and the three basic types of 
domination cannot be placed into a simple evolutionary line: they in 
fact appear together in the most diverse combinations. It is the fate of 
charisma, however, to recede with the development of permanent insti- 
tutional structures. As far as we know the early stages of social life, 
every concerted action that transcends the traditional mode of satisfy- 
ing economic needs in the household has a charismatic structure. Primi- 
tive man perceives all external influences that shape his life as the actions 
of specific forces which are inherent in things and men, living and 
dead, and give them the power to do good as well as harm. The entire 
conceptual apparatus of primitive tribes, including their nature- and 
animal-fables, proceeds from such assumptions. Concepts like mana, 
orenda and similar ones, the meaning of which ethnography explains 
to us, denote such specific forces whose supernatural character is ex- 



I I 3 4 CHARISMA AND ITS TRANSFORMATION [ Ch, XIV 

clusively due to the fact that they are not accessible to everybody but 
linked to some definite carrier — person or object. Magic and heroic 
qualities are nothing but particularly important instances of such spe- 
cific powers. Every event transcending the routines of everyday life 
releases charismatic forces, and every extraordinary ability creates char- 
ismatic beliefs, which are subsequently weakened again by everyday life. 
In normal times the powers of the village chief are very limited, amount- 
ing to little more than arbitration and representation. In general, the mem- 
bers of the community do not claim the right to depose him, for his power 
is charismatic and not elective; however, if need be they desert him 
without hesitation and settle elsewhere. Among the Germanic tribes 
a king could still be rejected in this manner because of inadequate 
charismatic qualification. We might almost say that the normal condi- 
tion of primitive communities was anarchy moderated by compliance 
with customs, which was either unreflecting or motivated by apprehen- 
sion toward the uncertain consequences of innovation. The magician's 
social influence is similarly weak in everyday life. 

However, the charisma of the hero or the magician is immediately 
activated whenever an extraordinary event occurs; a major hunting ex- 
pedition, 3 drought or some other danger precipitated by the wrath 
of the demons, and especially a military threat. The charismatic hunting 
or war leader is often not identical with the peacetime chief who has 
primarily economic and also mediating functions. When the manipula- 
tion of deities and demons becomes an object of a permanent cult, the 
charismatic prophet and magician turns into a priest. When wars be- 
come chronic and technological development necessitates the systematic 
training and recruitment of all able-bodied men, the charismatic war 
leader becomes a king. The Frankish royal officials, count and sakebaro, 
were originally military and financial officials; all other tasks are of a 
later date, especially the judicial functions, which at first remained in 
the hands of the ancient charismatic communal arbitrators. The en- 
trenchment of a war leader with a permanent staff is the decisive step 
to be linked with the notions of "kingship" and "state," as compared to 
the peacetime chief whose primary functions are sometimes more eco- 
nomic (regulating common economic concerns of the village or market 
community), sometimes more magic (religious or medical), sometimes 
more judicial (originally limited to arbitration). It is arbitrary to derive 
kingship and state, in adaptation of Nietzschean concepts, from the sub- 
jection of one tribe by another, which thereupon creates a permanent 
apparatus in order to maintain its ascendancy and to exact tribute."" For 
the same differentiation between arms-bearing and tax-exempt warriors 
and unarmed, service-rendering non-combattants can easily -develop 



» ] __ Genesis & Transformation of Charismatic Authority 1135 

within any tribe that is chronically threatened with war; incidentally, 
the dependence of the non-combattants is frequently not patrimonial. 
The chiefs following may form a military brotherhood and exercise 
political rights, so that a feudal aristocracy emerges. Alternatively, the 
chief may increasingly resort to hiring his following, first in order to 
launch marauding expeditions and later to dominate his own people; 
for this case, too, there are examples. [The conquest theory] is correct 
only to the extent that kingship is normally charismatic war leadership 
that has become permanent and has developed a repressive apparatus 
for the domestication of the unarmed subjects. This apparatus naturally 
became strongest in conquered territories, because of the continuous 
threat to the ruling stratum. It is no accident that the Norman states, 
especially England, were the only feudal states in the Occident with a 
really centralized and highly developed administration; the same was 
true of the Arabic, Sassanid and Turkish warrior states, which were 
most highly organized in conquered areas. The development of hiero- 
cratic power followed the same pattern. The strict centralization of the 
Catholic church originated in the Occidental mission territory and was 
completed in the wake of the [French] Revolution which destroyed the 
power of the local clergy: as ecclesia milhans the church created its 
technical apparatus. However, kingship and high-priesthood exist also 
without conquest and missionary activities, if we consider as the decisive 
feature the persistence of a bureaucratic, patrimonial or feudal structure 
of domination. 



8. The Depersonalization of Charisma: Lineage 
Charisma, "Clan State" and Primogeniture 

Whatever we have said until now about the possible consequences 
of the routinization of charisma has not affected its strictly personal 
quality. However, we will now turn to phenomena whose common fea- 
ture is a peculiar depersonalization of charisma. From a unique gift of 
grace charisma may be transformed into a quality that is either" (a) 
transferable or (b) personally acquirable or (c) attached to the in- 
cumbent of an office or to an institutional structure regardless of the 
persons involved. We are justified in still speaking of charisma in this 
impersonal sense only because there always remains an extraordinary 
quality which is not accessible to everyone and which typically over- 
shadows the charismatic subjects. It is for this very reason that charisma 
can fulfill its social function. However, since in this manner charisma 
becomes a component of everyday life and changes into a permanent 



I I 3 6 CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

structure, its essence and mode of operation are significantly transformed. 
The most frequent case of a depersonalization of charisma is the 
belief in its transferability through blood ties. Thus the desires of the 
disciples or followers and of the charismatic subjects for the perpetuation 
of charisma are fulfilled in a most simple fashion. However, the notion 
of a truly individual inheritance was as alien here as it was originally 
to the household. Instead of individual inheritance we find the immortal 
household as property-bolder vis-a-vis the succeeding generations. In 
the beginning, charisma too is hereditary only in the sense that house- 
hold and lineage group are considered magically blessed, so that they 
alone can provide the bearers of charisma. This notion lies so close at 
hand that its genesis scarcely needs an explanation. Because of its su- 
pernatural endowment a house is elevated above all others; in fact, the 
belief in such a qualification, which is unattainable by natural means 
and hence charismatic, has everywhere been the basis for the develop- 
ment of royal and aristocratic power. For just as the charisma of the 
ruler attaches itself to his house, so does that of his disciples and fol- 
lowers to their houses. The kobetsu, the families who (allegedly) de- 
scended from the house (w/0 of the Japanese charismatic ruler Jimmu 
Tenno, are considered to be permanently blessed and retain this pre- 
eminence over the other uji, among whom the shinbetsu constitute the 
charismatic aristocracy; the latter comprise the clans of followers which 
(allegedly) immigrated with Jimmu Tenno as well as those native ones 
that he incorporated into his following. This aristocracy assigns the ad- 
ministrative positions to its members. The two clans of the Muraji and 
the Omi occupied the highest charismatic rank. In these as in all the 
other clans, the same phenomenon occurred when the joint household 
disintegrated: one house is considered the Great House (o = oho). The 
bouses O Muraji and O Omi are the bearers of the specific charisma 
q£ their clans, and their heads therefore claim the right of occupying 
the corresponding positions at court and in the political community. 
Wherever the principle of charismatic blood relationship has been fully 
applied, all occupational status, down to the lowest craft, rests, at least 
theoretically, upon the tie between a sptcific charisma and a specific 
lineage group and between the prerogative of leadership within such 
a group and its charismatically qualified Great House. The political 
organization of the state depends upon lineage groups, their retainers 
and territorial holdings. As a type such a "clan state" (GeschlechteTstaai) 
should be clearly distinguished from any type of feudal or patrimonial 
state or state with hereditary offices (Amtsstaat), regardless of the fluid 
historical transitions. For the rights of the individual lineage groups 
to their functions are legitimated by the charisma inherent in their 



ii ] genesis & Transformation of Charismatic Authority 1137 

houses, not by any persona] fealty that derives from a grant of property 
or office. As previously mentioned, the transition from this condition 
to the feudal state is regularly motivated by the ruler's interest in de- 
stroying the autonomous legitimacy of these lineage groups and in re- 
placing it with a feudal legitimacy derived from his own person. 

We "are not interested here in the degree of correspondence between 
historical reality and the pure type of charismatic blood relationship; 
for our purposes it is sufficient that the principle existed in more or 
less developed form among the most diverse peoples. Remnants of it 
can be found in the historical period of Germanic as well as Greek 
Antiquity (witness the preeminence, by virtue of their blood line, of 
the Eteobutadai in Athens and, conversely, the disqualification of the 
Alkmaionidai by virtue of their blood guilt). 

In historical times, however, the principle of dynastic and lineage 
charisma has generally been adhered to far less consistently. As a rule, 
the most primitive and the highest stages of culture only know the 
charismatic privilege of the ruling dynasty and possibly of a very limited 
number of other powerful families. Under primitive conditions the 
charisma of the magician, rainmaker, medicine-man and priest, as long 
as it is not fused with political authority, is much less frequendy tied 
to the charisma of a house; only the development of a regular cult 
gives rise to those charismatic blood ties between certain priesdy posi- 
tions and aristocratic lineage groups that occur often and in turn affect 
the hereditability of other types of charisma. As physiological blood ties 
gain increasing importance, deification sets in, at first of the ancestors 
and eventually also of the incumbent ruler, if the process is not inter- 
rupted; we shall return to some of its consequences. 

Lineage charisma, however, does not assure the unambiguous identi- 
fication of the successor. This requires a definite rule of succession; 
hence the belief in the charismatic importance of blood relationship 
.must be implemented by the belief in the charisma of primogeniture. 
For all other systems, including the system of "seniority" frequendy 
applied in the Orient, lead to wild palace intrigues and revolts, particu- 
larly when polygamy is practiced and the wives' struggle for the suc- 
cession rights of their children is added to the ruler's interest in eliminat- 
ing potential pretenders in favor of his own offspring. In a feudal state 
the principle of primogeniture is usually established first for fief-holders 
because the division of hereditary fiefs must be limited in the interest 
of their service capacities. Subsequendy, the principle is, so to speak, 
projected back to the apex of the feudal pyramid, as it happened in 
the course of Occidental feudalization. In a patrimonial state, whether 
of the Oriental or Merovingian variety, the validity of the principle of 



I I 3 8 CHARISMA AND ITS TRANSFORMATION [ Ch. XW 

primogeniture is much less certain. In its absence the alternative is 
either to divide the political powers just like any other patrimonial 
possession or to select the successor according to some regular procedure: 
Divine judgment (duelling among the sons, often practiced in primi- 
tive tribes), the oracular drawing of lots (which in reality means selection 
by the priests, as among the Jews since Joshua), or finally the normal 
form of charismatic selection through nomination and popular acclama- 
tion; this case, even more than the others, is fraught with the danger 
of double elections and of succession fights. At any rate, dominance 
of monogamy as the sole legitimate form of marriage has been one of 
the most important reasons for continuity of monarchic power; it bene- 
fited the Occidental monarchies, but under the Oriental conditions the 
mere thought of an impending or possible succession haunted the whole 
administration, and the actual succession always threatened to be catas- 
trophic for the state. ^„ 

On the whole, the belief in the hereditariness of charisma belongs 
to those conditions which account for the greatest historical "accidents" 
with regard to the structure and persistence of polities, especially since 
the principle of heredity may have to compete with other forms of 
designating a successor. The structure of Islam has been affected decisively 
by the fact that Mohammed died without male heirs and that his followers 
did not found the Caliphate on hereditary charisma, and indeed during 
the Omayyad period developed it in an outright anti-theocratic manner. 
It is largely owing to such differences about the ruler's qualification that 
Shiism, which recognizes the hereditary charisma of All's family and 
hence accepts the infallible doctrinal authority of an imam, is so antago- 
nistic to orthodox Sunna, which is based on tradition and idshmd (con- 
sensus ecclesiae). Apparently it was easier to displace Jesus' family from 
its originally important position in the community. The fact that the 
German Carolingians and the subsequent royal dynasties died out just 
when hereditary charisma might have become strong enough to prevail 
over the electoral claims of the princes, has been highly significant for the 
decline of royal power in Germany, while in France and England, by 
contrast, the rise of kingship was strengthened by hereditary charisma. 
This has had probably even more far-reaching consequences than the fate 
of Alexander's family. In contrast to this role of heredity, almost all capable 
Roman emperors of the first three centuries ascended the throne by virtue 
of designation through adoption, not by virtue of blood relationship; and 
most of those who became emperors in the latter way weakened the office. 
The reasons for these divergent consequences are apparendy connected 
with the difference between the political structure of a feudal state and 
that of an increasingly bureaucratized state that is dependent upon a 



U j Genesis 6 Tmnsforinxtion of Charismatic Authority j 139 

standing army arid its officers. We will not pursue this difference at this 
point. 



9. Office Charisma 

Once the belief is established that charisma is bound to blood re- 
lationship, its meaning is altogether reversed. If originally a man was 
ennobled by virtue of his own actions, now only the deeds of his fore- 
fathers could legitimate him. Hence one became a member of the 
Roman nobility not by holding a nobilitating office, but because one's 
own ancestors had done so, and the office aristocracy delimited in this 
way endeavored to monopolize the offices. This reversal of genuine 
charisma into its exact opposite occurred everywhere according to the 
same pattern. The genuinely American (Puritan) mentality glorified 
the self-made man as the bearer of charisma and counted the heir for 
nothing, but this attitude is being reversed before our own eyes; now 
only descent — from the Pilgrim Fathers, Pocahontas and the Knicker- 
bockers — or membership in the accepted families of "old" wealth is 
valued. The closing of the rolls of nobility, the tests of ancestry, the ad- 
mission of the newly rich only as gentes minores, and similar phe- 
nomena are all equally an expression of the attempt to increase status 
by making it scarce. Economic motives are not only behind the monopo- 
lization of remunerative offices or of other connections with the state, but 
also behind the monopolization of the connubtum; noble rank provides 
an advantage in the quest for the hands of rich heiresses and also increases 
the demand for one's own daughters. 

In addition to the depersonalization of charisma in the form of 
inheritance, there are other historically important forms. First of all, 
charisma may be transferred through artificial, magical means instead 
>of through blood relationship: The apostolic succession secured through 
episcopal ordination, the indelible charismatic qualification acquired 
through the priest's ordination, the king's coronation and anointment, 
and innumerable similar practices among primitive and civilized peoples 
all derive from this mode of transmission. Most of the time the symbol 
has become something merely formal, and in practice is less important 
than the conception often related to it — the linkage of charisma with 
the holding of an office, which itself is acquired by the laying on of 
hands, anointment, etc. Here we find that peculiar transformation of 
charisma into an institution: as permanent structures and traditions 
replace the belief in the revelation and heroism of charismatic per- 
sonalities, charisma becomes part of an established social structure. 



I I 4 O CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

In the early Christian church the Bishop of Rome occupied an 
essentially charismatic position (originally together with the Roman 
ecclesia): The church of Rome acquired very early a specific authority 
and asserted it time and again against the intelletual superiority of the 
Hellenistic Orient, which produced almost all great church fathers, 
established the dogmas and held all ecumenical councils; this predomi- 
nance lasted as long as the unity of the church was maintained on the 
basis of the firm belief that God would not permit the church of the 
world capital to err despite its much smaller intellectual endowment. 
This authority was nothing but charismatic; it was by no .means a 
primacy in the modem sense of a definitive doctrinal authority (Lehr- 
amt), nor did it resemble universal jurisdictional powers in the sense of 
an appellate function or even an episcopal jurisdiction in competition with 
the local powers. Such notions had not yet been developed. Moreover, 
just like any other charisma, this one too' was at first considered a 
precarious gift of grace; at least one Bishop of Rome was anathematized 
by a Council. But on the whole this charisma was believed to be a 
Divine promise to the church. Even Innocent III at the height of his 
power did not invoke more than the rather general and vague belief 
in this promise; only the bureaucratized and iHtellectualized church of 
modern history turned it into a charisma of office and differentiated, as 
does every bureaucracy, between the office (ex cathedra) and the in- 
cumbent. 

The charisma of office — the belief in the specific state of grace of a 
social institution — is by no means limited to the churches and even less 
to primitive conditions. Under modern conditions, too, it finds politically 
relevant expression in the attitudes of the subjects to the state. For 
these attitudes may vary considerably according to whether they are 
friendly or hostile to the charisma of office. The specific lack of respect 
of Puritanism for mundane affairs, its rejection of all idolization, eradi- 
cated all charismatic respect towards the powers-that-be in the areas of 
Puritan predominance. The conduct of an office appeared as a business 
like all others, the ruler and his officials as sinners like everyone eke 
— strongly emphasized by Kuyper — and as no wiser than anyone else- 
Through God's inscrutable will they chanced upon their position and 
thus gained the power to fabricate laws, statutes, judgments and ordi- 
nances. Whoever shows the marks of damnation must of course be 
removed from a church office, but this principle is inapplicable and also 
dispensable with regard to state offices. As long as the secular power- 
holders do not directly violate conscience and God's honor, they are 
tolerated, for any change would merely replace them with others just 
as sinful and probably just as foolish. But they do not have any inwardly 



ii ] Genesis & Trans forntaticn of Charismatic Authority i i 4 1 

binding authority since they are. merely parts of an order made by and 
for man. The office is functionally necessary, but it does not transcend 
its incumbent and cannot reflect upon him any dignity, such as is pos- 
sessed, for example, by the lowest royal court (konigliches Amtsgerickt) 
according to normal German sentiment. This naturalistic and rational 
attitude toward the state, which has had very conservative or very revo- 
lutionary effects depending on the given conditions, has been basic to 
numerous important features of countries under Puritan influence. The 
fundamentally different attitude of the average German toward the 
Amt, toward the "supra-personal" authorities and their "nimbus" is of 
course conditioned in part by the peculiarities of Lutheranism, but also 
corresponds to a very general type: the endowment of poverholders 
with the office charisma of "God-given authority." The purely emotive 
state metaphysics, flourishing on this ground, has had far-reaching 
political consequences. 

The Catholic theory of the priest's character indelebilis with its strict 
distinction between the charisma of office and the worthiness of the 
person constitutes the polar opposite of the Puritan rejection of office 
charisma. Here we encounter the most radical form of depersonalization 
of charisma and of its transformation into a qualification that is inherent 
in everybody who has become a member of the office hierarchy through 
a magic act, and that sanctifies official acts. This depersonalization was 
the means whereby an hierocratic organization was grafted upon a 
world which perceived magic qualifications everywhere. The bureau- 
cratization of the church was possible only if the priest could be abso- 
lutely depraved without endangering thereby his charismatic qualifica- 
tion; only then could the institutional charisma of the church be 
protected against all personnel contingencies. Since pre-bourgeois man 
is still disinclined to moralize about the natural and the supernatural 
world, since he perceives the gods not as good but merely as strong, and 
believes that all kinds of animal, human and superhuman creatures have 
magic capacities, this differentiation between person and function con- 
forms to widely accepted beliefs; the church only put them deliberately 
into the service of a great organizational idea: that of bureaucratization. 



10. Charismatic Kingship 1 " 

A particularly important case of the charismatic legitimation of insti- 
tutions is that of political charisma, as it appears with the rise of kingship. 

Everywhere the king is primarily a warlord. Kingship originates in 
charismatic heroism. In the history of civilized peoples, kingship is not 



I I 4 2 CHARISMA AND ITS TRANS FOFIMATION [ Cfl. XIV 

the oldest form of political domination, that is, a power transcending 
patriarchal authority and differing from it because it does not primarily 
direct the peaceful struggle of man with nature but the violent struggle 
of one community against another. Kingship is preceded by all those 
charismatic forms which assure relief in the face of extraordinary ex- 
ternal or internal distress or which promise success in risky undertak- 
ings. In eady history, the precursor of the king, the chieftain, often 
has a double function: He is the patriarch of the family or sib, but 
also the charismatic leader in hunt and war, the magician, rainmaker, 
medicine man — hence priest and doctor-^-, and finally, the arbiter. 
Frequently each of these kinds of charisma has a special bearer. Next to 
the peacetime chieftain (the head of the sib), whose power originates 
in the household and who has mainly economic functions, stands the 
hunting and war leader, who proves his heroism in successful raids 
undertaken for the sake of victory and booty. (Even in historical times, 
in Assyrian royal inscriptions, hunting booty and cedars from the 
Lebanon — dragged along for construction purposes — are enumerated 
alongside the number of slain enemies and the size of walls of con- 
quered cities which were covered with their skins.) In such cases 
charisma k acquired irrespective of its bearer's position in the sib or 
household, indeed, of any rules. This dualism between charisma and 
everyday life is often found among the American Indians, for instance, 
the Confederacy of the Iroquois, as well as in Africa and elsewhere. 

Wherever war and big game hunt do not occur, we do not find the 
charismatic chieftain either: the "warlord," as we want to call him in 
order to avoid the usual confusion with the peacetime chieftain. In this 
case, especially when natural calamities — drought or epidemics — are 
frequent, a charismatic sorcerer may have an essentially similar power 
and become a "priestly ruler." The charisma of the warlord rises and 
falls with its efficacy and also with the demand for it; the warlord be- 
comes a permanent figure when there is a chronic state of war. It is 
mainly a terminological question whether kingship and the state are 
said to begin with the annexation and incorporation of alien subjects 
into the community [cf. above, sec. 7]. For our purposes it remains ex- 
pedient to use the term "state" in a much narrower way. 

As a rule, the phenomenon of the warlord is not linked to tribal 
domination over another tribe and to the existence of individual slaves, 
but only to a chronic state of war and a comprehensive military organi- 
zation. However, it is true that kingship develops frequently into a 
regular royal administration only when the military following controls 
the working or paying masses. But the subjection of alien tribes is not 
a necessary intermediate step. The internal stratification resulting from 



it ] Genesis & Transformation of Charismatic Authority i i 4 3 

the development of charismatic warriors into a ruling caste may have 
the same differentiating effect. At any rate, as soon as their domination 
has been stabilized, the royal power and those with vested interests in 
it, the royal following, search for legitimacy, that is, for the mark of 

the charisma tically qualified ruler. 11 



11. Charismatic Education 

Once charismatic qualification has Decome an impersonal quality, 
which can be transmitted through various and at first purely magic 
means, it has begun its transformation from a personal gift that can be 
tested and proven but not transmitted and acquired, into a capacity that, 
in principle, can be taught and learned. Thus charismatic qualification 
can become an object of education, even though at first not in the form 
of rational or empirical instruction, since heroic and magical capacities 
4 are regarded as inborn; only if they are latent can they be activated 
through a regeneration of the whole personality. Therefore, the real 
purpose of charismatic education is regeneration, hence the development 
of the charismatic quality, and the testing, confirmation and selection 
of the qualified person. [The elements of charismatic education are:] 
Isolation from the familiar environment and from all family ties (among 
primitive tribes the novices — epheboi — move into the forests); invariably 
entrance into an exclusive educational community; complete transfor- 
mation of personal conduct; asceticism; physical and psychic exercises 
of the most diverse forms to awaken the capacity for ecstasy and re- 
generation; continuous testing of the level of charismatic perfection 
through shock, torture and mutilation (circumcision may have origi- 
nated primarily as a part of such ascetic practices); finally, graduated 
ceremonious reception into the circle of those who have proven their 
charisma. 

Within certain limits the transition between charismatic and ra- 
tional specialized training is of course fluid. Every charismatic education 
includes some specialized training, depending on whether the novices 
are trained to be warriors, medicine men, rainmakers, exorcisers, priests 
or legal sages. This empirical and professional component, which is 
often treated as secret know-how for the sake of prestige and monopoli- 
zation, increases quantitatively and in rational quality with professional 
differentiation and the accumulation of specialized knowledge; finally, 
in a world of predominantly specialized training and drill only the 
familiar juvenile phenomena of barrack and student life remain as 
residues of the ancient ascetic means for awakening and testing charis- 



I I 44 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

matic capacities. However, genuine charismatic education is the radical 
opposite of specialized professional training as it is espoused by bureauc- 
racy. Between these two forms of education we find all those kinds 
that are concerned with "cultivation" On the meaning defined above: 
the change of basic attitudes and of personal conduct) and retain only 
remnants of the original irrational means of charismatic education. The 
most important instance has been the training of warriors and priests, 
which once was primarily a selection of the charismatically qualified. 
He who does not pass the heroic trials of the warrior's training remains 
a "woman," just as he who cannot be awakened to the supernatural 
remains a "layman." In the familiar pattern, the standards of qualifica- 
tion are energetically defended and raised because of the material inter- 
ests of the following, which forces the master to share the prestige and 
material opportunities of his rulership only with those who have passed 
the same trials. 

In the course of these transformations charismatic education may 
become a state or ecclesiastic institution, or it may be left to the formally 
free initiative of organized interest groups. The actual developments 
depend upon the most diverse circumstances, in particular upon the 
distribution of power between the various competing kinds of charisma. 
This is especially true of the extent to which either military-knightly 
training or ecclesiastic instruction predominates in a community. In 
contrast to knightly training, the very spiritualism of ecclesiastic educa- 
tion facilitates its development toward rational instruction. The training 
of the priest, rainmaker, medicine man, shaman, dervish, monk, sacred, 
singer and dancer, scribe and jurist as well as the training of, the knight 
and warrior assumes many forms, but remains ultimately similar. Dif- 
ferent is merely the relative impact of the various educational groups. 
This depends not only upon the power distribution between imperium 
and sacerdottum (which will be discussed again below), but first of all 
upon the extent to which military service is a matter of social honor, 
the duty of a stratum that is thereby specifically qualified. Only where 
such a duty exists does militarism establish its own educational system; 
conversely, the development of ecclesiastic education is usually a func- 
tion of the bureaucratization of rulership, at first of sacred domination. 

The basic Hellenic institution of the epheboi, a component of the 
individual's athletic-artistic perfection, is only a special case of a uni- 
versal kind of military training, which includes in particular the prepa- 
rations for the initiation rites, that is, for the rebirth as a hero, and the 
reception into the male fraternity QMannerhund*) and the communal 
house of the warriors, which is a kind of primitive barracks. (This is 
the origin of the "men's house" which Schurtz traced everywhere with 
such loving care.) 11 * These are instances of lay education: the warrior 



« } Genesis & Transformation of Charismatic Authority i i 4 5 

dans dominate education. The institution disintegrates whenever the 
member of the political community is no longer primarily a warrior and 
war is no longer chronic. An example for the far-reaching "clericaliza- 
tion" of education is provided by the control of the Egyptian priests 
over the training of officials and scribes in this typically bureaucratic 
state. In numerous other Oriental cases, too, the priesthood controlled 
the training of officials, and that means education in general, because it 
alone developed a rational educational system and provided the state 
with scribes and officials trained in rational thinking. In the Occidental 
Middle Ages the education offered by the church and the monasteries 
— as the agents of every kind of rational instruction — was also of para- 
mount importance. There clerical-rational and knightly education co- 
existed, competed and cooperated with one another, owing to the feudal 
and status character of the ruling stratum, and imparted to Occidental 
medieval man and the Occidental universities their specific character. 
In contrast, there was no counterweight to the derealization of educa- 
tion in the purdy bureaucratic Egyptian state; the other patrimonial 
states of the Orient also failed to devdop a specifically knightly educa- 
tion, since they lacked the requisite Estate structure; and finally, the 
completely depoliticized Jews, whose cohesion depended upon the 
synagogue and the rabbinate, developed a major type of stricdy derical 
education. 

In the Hellenic polis and in Rome there was no state bureaucracy or 
priestly bureaucracy that might have created a clerical educational sys- 
tem. It was only in part a fateful historical acddent that Homer, the 
literary product of a secular aristocracy which was most irreverent 
toward die gods, remained the major vehicle of literary education — 
which explains Plato's deep hatred against him — and prevented any 
theological rationalization of the religious powers. The decisive fact was 
the complete absence of a clerical system of education. 

In China, finally, the character of Confudan rationalism, its con- 
ventionalism and its reception as the basis of education was conditioned 
by the bureaucratic rationalization of the secular patrimonial officialdom 
and the absence of feudal powers. 



1 2. The Plutocratic Acquisition of Charisma 

Every kind of training, whether for magical charisma or for heroism, 
may become the concern of a small circle of professional associates out 
of which may develop secret priesdy fraternities or exdusive aristocratic 
clubs. The number of variations is great, ranging from systematic domi- 
nation to occasional plundering by the political or magic brotherhood, 



I I 4 6 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

which especially in West Africa was often a secret society. All those 
groups that developed into clubs and brotherhoods, whether they origi- 
nated in a voluntary military following or in the levy of all able-bodied 
men, share the tendency to replace charismatic capacities increasingly 
with purely economic qualifications. A young man had to be dispensable 
in the. household before he could subject himself to charismatic train- 
ing, which was time-consuming and economically not immediately 
profitable; however, such dispensability was the less frequent, the more 
the intensity of economic wort increased. The result was a monopolization 
of charismatic education by the well-to-do, who purposively reinforced 
this trend. As the original magic or military functions lost importance, 
economic aspects came to predominate ever more. 

At the end of this development, a person can simply buy his position 
in the various levels of political "clubs," as in Indonesia; under primitive 
conditions it may suffice to organize a rich feast. The transformation 
of the charismatic ruling stratum into a purely plutocratic one is typical 
of otherwise primitive peoples, whenever the practical importance of 
military and magic charisma declines. It is then not necessarily property 
itself that ennobles a person, but rather the style of life that is possible 
only On the basis of property. In the Middle Ages, a knighdy style of 
life implied, among other things, above all the keeping of an open house. 
Among many tribes it is possible to secure the tide of a chief simply 
by offering banquets, and to retain it in the' same manner; this is a 
land of noblesse oblige that has always easily impoverished the notables 
who taxed themselves in this fashion. 



r 3 , The Charismatic Legitimation of the Existing Order 

As domination congeals into a permanent structure, charisma re- 
cedes as a creative force and erupts only in short-lived mass emotions 
with unpredictable effect, during elections and similar occasions. How- 
ever, charisma remains a very important element of the social structure, 
even though it is much transformed. We must now go back to those 
economic motives mentioned above [ii:i] that largely account for the 
.routinization of charisma: the needs of privileged strata to legitimize 
their social and economic conditions, that is, to transform them from 
mere resultants of power relationships into acquired rights, and hence 
to sanctify them. These interests are by far the strongest motive for the 
preservation of charismatic elements in depersonalized form. Since 
genuine charisma is based neither on enacted or traditional order nor on 
acquired rights, but on legitimation through heroism and revelation, 
it is radically opposed to this motive. But after its routinization its very 



« ] Genesis & Transformation of Charismatic Authority i I 4 7 

quality as. an extraordinary, supernatural and divine force makes it a 
suitable source of legitimate authority for the successors of the charisma- 
tic hero; moreover, in this form it is advantageous to all those whose 
power and property are guaranteed by this authority, that is, dependent 
upon its perpetuation. However, the forms of charismatic legitimation 
vary according to the relationship to the supernatural forces which estab- 
lish it. 

If the legitimacy of the ruler is not clearly identifiable through he- 
reditary charisma, another charismatic power is needed; normally this 
can only be hierocracy. This is true even of a ruler who is a divine 
incarnation and hence possesses the highest degree of personal charisma. 
Insofar as he does not prove himself through his own deeds, his very 
claim must be confirmed by the experts in matters divine Hence divine 
rulers are peculiarly subject to confinement by the groups which have 
the greatest material and ideal stakes in "their legitimacy, the court 
officials and the priests; this confinement may result in permanent 
palace arrest and even in the killing of the God-King when he comes 
of age, so that he cannot compromise his divinity or emancipate himself 
from tutelage. In general, the very fact that the charismatic ruler 
carries such a heavy burden of responsibility in relation to the ruled 
tends to create an urgent need for some form of control over him. 

Because of his exalted charismatic qualities such a ruler needs a 
person who can take over responsibility for the acts of government, 
especially for failures and unpopular measures; this is still true of the 
Oriental caliph, sultan and shah: They need the traditional figure of the 
Grand Vizier. In Persia, the attempt failed only a generation ago to 
abolish the position of the Grand Vizier in favor of bureaucratic minis- 
tries under the Shah's personal supervision, because this would have 
made him personally responsible for all the troubles of the people and 
for all administrative' abuses; it also would have endangered, not only 
the ruler himself, hut also his charismatic legitimacy. Therefore, the 
position of the Grand Vizier had to be restored so that it could protect 
the Shah and his charisma. 

This is the Oriental counterpart to the responsible chef du cabinet 
in the Occident, especially in the parliamentary state. There we find the 
formula le roi regne, mais il ne gottverne fas, and the theory that for his - 
dignity's sake the king should "not appear in public without his minis- 
terial trappings" 12 or, even more so, that for the same reason he should 
completely abstain from interfering with the regular bureaucratic ad- 
ministration and instead defer to the leaders of the political parties who 
hold the cabinet posts. This corresponds to the insulation of the deified 
patrimonial ruler by the specialists in tradition and ceremony: the priests, 
court officials and high dignitaries. In all these cases the sociological 



I I 4 8 CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

nature of charisma accounts for these limitations as much as do the 
interests of the court officials or party leaders and their following. The 
parliamentary monarch is retained in spite of his powerlessness, because, 
by his very existence and by virtue of the fact that power is exercised 
"in his name," he guarantees the legitimacy of the existing social and 
property order through his charisma; all those interested in this order 
must fear the subversion of the belief in its legitimacy if the king ,is re- 
moved. The function of legitimizing the governmental decisions of the 
victorious party as lawful acts can also be fulfilled by a president elected 
according to fixed rules. However, the parliamentary monarch fulfills 
another function which an elected president cannot fulfill: He formally 
limits the power struggle of the politicians by definitively occupying the 
highest position in the state. From a purely political viewpoint, this essen- 
tially negative function, which depends on the mere existence of a 
legitimate king, is perhaps in practice the most important one. In more 
positive terms, this function indicates in the most typical case that the 
king can take an active part in government only by virtue of his personal 
capacities or his social influence (Kingdom of Influence^), not simply by 
virtue of his rights (Kingdom of Prerogative^ recent events and per- 
sonalities have shown that a king can exercise such an influence in spite 
of the parliamentary system. The "parliamentary" monarchy in England 
makes it possible to limit access to real power to politically qualified 
monarchs. For the king can lose iris crown by a false mow in foreign 
and domestic politics or by raising claims which do not accord with his 
personal gifts or his prestige. To that extent the English parliamentary 
monarchy is more genuinely charismatic than the Continental monarchy, 
which encourages the ruler to exercise power merely because of his birth 
right, whether he is a simpleton or a political genius. 1 * 



Ill 

Discipline and Charisma 



i . The Meaning of Discipline 

It is the fate of charisma to recede before the powers of tradition or 
of rational association after it has entered the permanent structures of 
social action. This waning of charisma generally indicates the diminish- 



m ] Discipline and Charisma 1 149 

ing importance of individual action. In this respect, the most irresistible 
force is rational discipline, which eradicates not only personal charisma 
but also stratification by status groups, or at least transforms them in a 
rationalizing direction. 

The content of discipline is nothing but the consistently rationalized, 
methodically prepared and exact execution of the received order, in 
which all personal criticism is unconditionally suspended and the actor 
is unswervingly and exclusively set for carrying out the command. In 
addition, this conduct under orders is uniform. The effects of this uni- 
formity derive from its quality as social action within a mass structure. 
Those who obey are not necessarily a simultaneously obedient or an 
especially large mass, nor are they necessarily united in a specific locality. 
What is decisive for discipline is that the obedience of a plurality of 
men is rationally uniform. 

Discipline as such is not hostile to charisma or to status honor. On 
the contrary, status groups that are attempting to rule over large terri- 
tories or large organizations — the Venetian aristocracy of the Council, 
the Spartans, the Jesuits in Paraguay, or a modern officer corps with a 
prince at its head— can maintain effective superiority over their subjects 
only by means of a very strict internal discipline. The blind obedience of 
subjects, too, can be secured only by training them exclusively for sub- 
mission under the disciplinary code. If a status group maintains a 
stereotyped prestige and style of life only for reasons of discipline, this 
deliberate and rational component will always become prominent and 
in turn affect all of the culture influenced by such a group; we shall not 
discuss these effects here. A charismatic hero may make use of discipline 
in the same way; indeed, he must do so if he wishes to expand his sphere 
of domination. Thus Napoleon created a strict disciplinary organization 
for France, which is still effective today. 

Discipline in general, like its most rational offspring, bureaucracy, is 
impersonal. Unfailingly neutral, it places itself at the disposal of every 
power that claims its service and knows how to promote it. This does 
not prevent it from being intrinsically alien to charisma as well status 
honor, especially of a feudal sort. The berserk with manic seizures of 
frenzy and the feudal knight who measures swords with an equal ad- 
versary in order to gain personal honor are equally alien to discipline, 
the former because of the irrationality of his action, the latter because 
his attitude lacks matter-of-factness. Discipline puts the drill for the sake 
of habitual routinized skill in place of heroic ecstasy, loyalty, spirited 
enthusiasm ft/ a leader and personal devotion to him, the cult of honor, 
or the cultivation of personal fitness as an art. Insofar as discipline ap- 
peals to firm ethical motives, it presupposes a sense of duty and con- 



I I 5 O CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

scientiousness — "men of conscience" versus "men of honor" in Crom- 
well's terms. All of this serves the rationally calculated optimum of the 
physical and psychic preparedness of the uniformly conditioned masses. 
Enthusiasm and unreserved devotion may, of course, have a place in 
discipline; every modern conduct of war weighs, frequendy above every- 
thing else, precisely the morale factor in troop effectiveness. Military 
leadership uses emotional means of all sorts — just as the most sophisti- 
cated techniques of religious discipline, the exertitia s-pirittialia of Ig- 
natius of Loyola, do in their way. It seeks to influence combat by "in- 
spiring" the soldiers and, even more, by developing their empathy for 
the leaders' will. The sociologically decisive points, however, are, first, 
that everything is rationally calculated, especially those seemingly im- 
ponderable and irrational emotional factors — in principle, at least, cal- 
culable in the same manner as the yields of coal and iron deposits. 
Secondly, devotion is normally impersonal, oriented toward a purpose, a 
common cause, a rationally intended goal, not a person as such, however 
personally tinged devotion may be in the case of a fascinating leader. 

The case is different only when the prerogatives of a slaveholder 
create a situation of discipline: On a plantation or in a slave army of 
the ancient Orient, on galleys manned by slaves or by prisoners in 
Antiquity and the Middle Ages. In these cases the only effective element 
is indeed the mechanized drill and the individual's integration into an 
inescapable, inexorable mechanism, which forces the team member to 
go along. However, this form of compulsory integration remains a strong 
element of all discipline, especially in a systematically conducted war, 
and it emerges as an irreducible residue in all situations in which the 
ethical qualities of duty and conscientiousness have failed. 



2. The Ofigins of Discipline in War 

The conflict* between discipline and individual charisma has been 
iuli of Vicissitudes. It has its classic seat in the development of the struc- 
ture of warfare, in which sphere the conflict is to some extent purely 
determined by technology. However, the kind of weapons — pike, sword, 
bow — is not necessarily decisive, for all of them allow disciplined as well 
as individual combat; still, at the beginning of the known history of 
the Near East and of the Occident, the importation of the horse and, to 
some uncertain degree, the rise of the epoch-making iron tool have 
played decisive roles. The horse brought the war chariot and with it the 
hero driving into combat and possibly fighting from his chariot; this was 
the dominant figure in the warfare of the Oriental, Indian, and ancient 



Hi ] Discipline and Charisma i i $ i 

Chinese kings, as well as throughout the Occident, including the Celtic 
areas and Ireland until late times. Cavalry came after the war chariot, 
but lasted longer; from it the knight emerged — the Persian, Thessalian, 
Athenian, Roman, Celtic, and Germanic. The foot-soldiers, who cer- 
tainly played some. part earlier in the development of discipline, receded 
in importance for quite some time. The replacement of the bronze 
javelin by iron arms for close combat was probably among the factors 
that again pushed development in the opposite direction. Yet, just as in 
the Middle Ages gun powder can scarcely be said to have brought about 
the transition from undisciplined to disciplined fighting, so iron as such 
did not bring about the change; after all, long-range and knightly 
weapons were also made of iron. It was the discipline of the heavily 
armed Hellenic and Roman foot-soldiers (hopliies) which brought about 
the change. An oft-quoted passage shows that even Homer knew of 
the beginnings of discipline with its prohibition of fighting out of line. 
For Rome, the turning-point is symbolized by the legend of the execu- 
tion of the consul's son who, in accordance with the ancient heroic 
fashion, had slain the opposing commander in individual combat. One 
after the other, we encounter the well-trained army of the Spartan 
professional soldier, the holy lochos of the Boeotians, the well-trained 
phalanx of the Macedonians equipped with long pikes (sarissae), and 
the more mobile but equally well-trained maniple of the Roman legions. 
These troops gained supremacy, in turn, over the Persian knight, the 
militias of the Hellenic and Italic citizenry, and the general levies of 
the Barbarians. In the early period of the Hellenic hcphies, attempts 
were made to exclude long-range weapons by 'international law" as i:n- 
chivalrous, just as during the Middle Ager, there were attempts to forbid 
the cross-bow. 

It is evident that the V. : ,^d of weapon lias been (be result and not 
the cause of discipline. Exclusive use of the infantry tactic of dese com- 
bat during Antiquity brought about the decay oi cavalry, and in Rome 
the status of a knight became practically equivalent to exemption from 
military service. At the close cf the Middle Ages it was the massed force 
of the Swiss, with its parallel and ensuing developments, which first 
broke the monopoly of knighthood to wage war. And even then the 
Swiss still allowed the Halberdiers to come foiward for hero combat, 
after the main force had advanced in closed formation, with the pike- 
men occupying the outside positions. At first this resulted only in the 
lesser frequency of individual knighdy combat. And in the battles of 
the sixteenth and seventeenth century, cavalry, as an increasingly dis- 
ciplined force, still played a decisive role. Without cavalry it was im- 



I I 5 2 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

possible to wage offensive wars and actually to overpower the enemy, as 
the course of the English Civil War demonstrated. 

It was discipline and not gun powder which initiated the transforma- 
tion of warfare. The Dutch army under Maurice of the House of Orange 
was one of the first modem disciplined armies. It was shorn of all status 
privileges; the mercenaries, for examples, could no longer refuse rampart 
work as something beneath their dignity (opera servilia). The sober and 
rational Puritan discipline made Cromwell's victories possible, despite 
the fierce bravery of the Cavaliers. His Ironsides — the "men of con- 
science" — trotted forward in closed formation, aiming calmly and firing 
simultaneously before drawing their sabres. After the attack they re- 
mained in closed formation or immediately realigned themselves. This 
discipline was technically superior to the Cavaliers' elan. For it was 
the habit of the Cavaliers to gallop enthusiastically into the attack and 
then to disperse, either to plunder the enemy camp or prematurely to 
pursue single opponents in order to capture them for ransom. All suc- 
cesses were forfeited by such habits, as was typically and often the case 
in Antiquity and the Middle Ages — for example, at Tagliacozzo [where 
Charles of Anjou defeated Konradin, the last of the Hohenstaufen, in 
1268]. Gun powder and all the war techniques associated with it became 
significant only with the existence of discipline — and to the full extent 
only with the use of war machinery, which presupposes discipline. 

The economic bases upon, which army organizations have been 
founded are not the only agent determining the development of dis- 
cipline, yet they have been of considerable importance. In turn, how- 
ever, the varying impact of discipline on the conduct of war has had 
even greater effects upon the political and social order, even though 
this influence has been ambiguor.s. Discipline, as the basis of warfare, 
gave birth to patriarchal kingship among the Zulus, where the monarch, 
however, was constitutionally limited by the power of the army com- 
manders — similar to the [manner in which the] Spartan [kings were 
checked by the] ephors." Similarly, discipline gave birth to the Hellenic 
polls with its gymnasia. When infantry drill was perfected to the point 
of virtuosity (as in Sparta), the folis had inevitably an aristocratic 
structure; when cities resorted to naval discipline, they had a democratic 
structure (Athens). Military discipline was also the basis of Swiss democ- 
racy, which in the heyday of the Swiss mercenaries was very different 
from the Athenian but controlled — in Greek terms — territories with in- 
habitants of limited rights (jperioeci) or with no rights (helots). Mili- 
tary discipline was also instrumental in establishing the rule of the 
Roman patriciate and, finally, the bureaucratic states of Egypt, Assyria 
and modem Europe. 



*« ] Discipline and Charisma i i 5 3 

These examples show that war discipline may go hand in hand 
with totally different economic conditions. But it has always in some 
way affected the structure of the state, the economy, and possibly the 
family. For in the past a fully disciplined army has necessarily been a 
professional army, and therefore the basic problem has always been how 
to provide for the sustenance of the warriors. The original way of creat- 
ing trained troops ready to strike was warrior communism, which we 
have already mentioned. It may take the form of the men's house, 
as a kind of barracks or casino of the professional warriors; in this form 
it is spread over the largest part of the earth; warrior communism may 
also follow the pattern of the communist community of the Ligurian 
pirates, the Spartan mess-hall (syssitia') principle, or the organization of 
Caliph Omar, or of the religious knightly orders of the Middle Ages. 
As we have noticed above, the warrior community may constitute either 
a completely autonomous, closed association or, as is the rule, it may be 
incorporated into a territorial political association. Thus, its recruitment 
may be determined by the larger order, but it may, of course, in turn exert 
decisive influence upon this order. Most of the time the linkage is relative. 
Even the Spartans, for example, did not insist upon "purity of blood," 
since military education was decisive for membership. 

The communist warrior is the perfect counterpart to the monk, whose 
garrisoned and communistic life in the monastery serves the purpose of 
disciplining him in the service of his other-worldly master (and, resulting 
therefrom, perhaps also his this-worldly master). With consistent de- 
velopment of the warriors' community, the dissociation from the family 
and all private economic interests is found also outside the celibate 
knightly orders which were created in direct analogy to the monastic 
orders. The inmates of the men's house purchase or capture girls, or 
they claim that the girls of the subject community be at their disposal 
as long as they have not been sold in marriage. The children of the 
Areoi— the dominant status group in Polynesia— are killed. Men can 
join enduring sexual unions with a separate economy only after com- 
pleting their service in the men's house — often only at an advanced age. 
The communist military organization, which is widely spread under 
conditions of chronic warfare and which requires warriors without home 
and family, may be reflected residually in several phenomena: dif- 
ferentiation according to age groups, which is sometimes also important 
f °r the regulation of sexual relationships; survivals of an allegedly 
primitive "endogamous promiscuity" or of a "primeval right" of all male 
warriors to all unappropriated women; likewise, abduction as the allegedly 
earliest form of marriage, and above all the "matrilineal family" (Mutter- 
recht)." 



I I J 4 CHARISMA AND ITS TRANSFORMATION [ Ch. XIV 

It is likely that the communist warrior community is everywhere a 
remnant of the following of charismatic warlords. These leaders decline 
when the following establishes a permanent association which endures 
in peacetimes. But under favorable conditions, the warrior chief may 
well gain complete control over the disciplined warrior formations. 
Accordingly, the military organization based on the "oikos" offers an 
extreme contrast to this communism of warriors who live on booty and 
from the contributions of women, those unfit to bear arms, and possibly 
serfs: The patrimonial army was sustained and equipped from the stores 
of its master, as we know it especially from Egypt, but its features were 
very often also components of other military organizations and hence' 
provided the root of princely despotism. The reverse phenomenon, the 
emancipation of the warrior community from the unlimited power of 
the lord— as evidenced in Sparta through the institution of the ephors 
— proceeds only so far as the interest of discipline permits. In the polis, 
therefore, the weakening of the king's power— which meant the weak- 
ening of discipline — prevailed only in peacetime and in the homeland 
(domi in contrast to militiae, according to the technical terms of Roman 
administrative law). The" Spartan king's prerogatives approached the 
zero point only in peacetime; in the interest of discipline, the king was 
omnipotent in the field. 

An all-round weakening o*f discipline — but varying greatly in degree 
— usually accompanies any kind of decentralized military establishment, 
whether it is prebendal or feudal. The well-trained Spartan army, the 
Kk^pai of the other Hellenic and Macedonian and of several Oriental 
military establishments, the Turkish quasi-prebendai fiefs, and finally 
the feudal fiefs of the Japanese and Occidental Middle Ages — all of 
these were stages of the economic decentralization which usually goes 
hand in hand with the weakening of discipline and the rise of individ- 
ual heroism. From the disciplinary aspect, just as from the economic, the 
seigneurial vassal represents an extreme contrast to the patrimonial or 
bureaucratic soldier. And the disciplinary aspect is a consequence of the 
economic aspect. The feudal vassal not only cares for his own equipment 
and provisions and directs his own baggage-train, but he summons and 
leads sub- vassals who, in turn, also equip themselves. Both the late 
medieval and early modern semi-capitalist recruiting of mercenary armies 
by condottieri and the raising and equipping of standing armies by 
means of public finance signify an intensification of discipline on the 
basis of an increasing concentration of the means of warfare in the 
hands of the warlord. We shall not describe here in detail the increasing 
rationalization of procurement for the armies; it began with Maurice of 
Orange, proceeded to the armies of Wallenstein, GustavusAdolphus, 



Hi ] Dinci-plhie and Churlsma 1155 

Cromwell, the ;<rmics of the French, of Frederick the Great and of 
Maria Theresw We also cannot deal lv. detail with the transition from 
the professional army to the people's am:y of the French Revolution, its 
reorganization by Napoleon into a partly professional army, and the 
general introduction of universal conscription duiing the 19th century. 
This development indicated in effect, the increasing importance of dis- 
cipline as well* as the parallel advance from private capitalism to public 
finance as the basis of military organization. 

Whether the exclusive dominance of universal conscription will be 
the last word in the age of machine warfare remains to be seen. The 
shooting records of the British navy, for instance, seem to be determined 
by the continuity of professional teams through the years. The belief 
in the technical superiority of the professional soldier for certain cate- 
gories of troops is almost sure to gain influence, especially if the process 
of shortening the term of service — stagnating in Europe at the moment 
— should continue. Esoterically, this view is already held in some officers' 
circles. The introduction of a three-year period pf compulsory service by 
the French army in 1913 was motivated here and there by the slogan 
of a "professional army," but this was somewhat inappropriate since no 
distinction was made between the various categories of troops. These still 
ambiguous possibilities, and also their possible political consequences, are 
not to be discussed here. In any case, none of them will alter the extreme 
importance of mass discipline. We wanted to show here that the separa- 
tion of the warrior from the means of warfare, and the concentration 
of the means of warfare in the hands of the warlord have everywhere 
been basic to this mass discipline, whether the process occurred in a 
patrimonial, capitalist or bureaucratic context. 



, 3. The Discipline oj Large-Scale Economic 
Organizations 

Military discipline gives birth to all discipline. The large-scale eco- 
nomic organization is the second great agency which trains men for 
discipline. No direct historical transitions link the Pharaonic workshops 
and construction projects (however little detail about their organiza- 
tion is known) with the Carthaginian-Roman plantation, the mines of 
the late Middle Ages, the slave plantation of colonial economies, and 
finally the modern factory. However, all of these have in common the 
one element of discipline. 

The slaves of the ancient plantations slept in barracks, living without 
family and without property. Only the managers — especially the villicus 



I I 5 6 CHARISMA AND ITS TRANSFORMATION [ Ck. XIV 

— had individual domiciles, somewhat comparable to the noncoms' [pri- 
vate] quarters or the housing provided the salaried supervisors on modem 
landed estates. Usually, the villicus alone had quasi-property Qpeculium, 
i.e., originally property in cattle) and quasi-marriage (contubernium) . 
In the morning the slaves lined up in "squads" (decuriae') and were led 
to work by "whips" (monhores); their supplies were stored in a depot 
(to use a barrack term) and handed out according to need. Infirmary 
and stockade were not absent. The discipline of the manor of the Middle 
Ages and the modern era was considerably less strict because it was 
traditionally stereotyped, and therefore it somewhat limited the lord's 
power. 

No special proof is necessary to show that military discipline is the 
ideal model for the modern capitalist factory, as it was for the ancient 
plantation. However, organizational discipline in the factory has a com- 
pletely rational basis. With the help of sui r ' j Ue methods of measure- 
ment, the optimum profitability of the individual worker is calculated 
like that of any material means of production. On this basis, the Ameri- 
can system of "scientific management" triumphantly proceeds with its 
rational conditioning and tiaiuing of work performances, thus drawing 
the ultimate conclusions from the mechanization and discipline of the 
plant. The psycho-physical apparatus of man is completely adjusted to 
the demands of the outer world, the tools, the machines — in short, it 
is functionalized, and the individual is shorn of his natural rhythm as 
determined by his organism; in line with the demands of the work 
procedure, he is attuned to a new rhythm through th« functional 
specialization of muscles and through the creation of an optimal 
economy of physical effort." This whole process of rationalization, in the 
factory as elsewhere, and especially in the bureaucratic state machine, 
parallels the centralization of the material implements of organization 
in the hands of the master. Thus, discipline inexorably takes over ever 
larger areas as the satisfaction of political and economic needs is in- 
creasingly rationalized. This universal phenomenon more and more 
restricts the importance of charisma and of individually differentiated 
conduct. 



NOTES 

Unless otherwise indicated, all notes and emendations are by Roth. 
j . For a different translation of sees, i and 2, see Gerth and Mills, From Max 
Weber, op. tit., 245-50. 

2. See Rudolf Sohm, Kirchmrecht I (1892), 6, 26; II (1923)^1765, and 
Outlines of Church History (Boston io58;£ittpuH. in 1887), 33. 



Notes i 157 

3. Both the references to the celibacy of holders of artistic charisma and to 
followers with independent means allude to the charismatic poet Stefan George 
and his circle; cf. Part One, ch. Ill: 10. 

4. This is directed against William II, who demanded loyalty by virtue of 3 
latter-day divine tight of kings irrespective of his many political blunders. 

5. Cf. above, Sac. of Law, sec. Hi and v. 5. (W) 

6. Kail Weierstrass (1815-1897), a mathematician known for his theory of 
analytical functions. 

7. Cf. GAzW, 47 iff. (W) 

8. Eduard Meyer, Geschichte des Altertums (Stuttgart 1944), IV, 695. 

9. In 1 880 a section of the largest German liberal party, the National Lib- 
eral Party, seceded because it refused to go along with the party's acceptance of 
Bismarck's tariff increase. The Secessionists were largely committed to laissez- taire 
policies; in 1884 they merged with the leftwing liberals, the Progressives, into the 
Tremnnige Partei. The merger was motivated by the desire to create a strong new 
patty that could provide a backing for the relatively liberal Crown Prints Fred- 
erick, whose ascendance to the throne was expected in the near future. As it was, 
Bismarck managed to decimate the party, which had begun with as many as one 
hundred deputies in the Reichstag, and Frederick ruled only three months in 
18S8. When-his successor, William II, replaced Bismarck with Caprivi in 1890, 
the fortiier Secessionists hoped for a more liberal government and tried to change 
the intransigent policy of Eugen Richter, the domineering leader of the old Pro- 
gressive party and the united party. In the ensuing struggle the former Secession- 
ists under Heinrich Rickert, who had retained his own apparatus, managed to 
gain a majority on the party's executive board, but Richter's grassroots organiza- 
tion and his newspapers proved strong enough to defeat the challenge. The pre- 
carious unity was destroyed and the party split in 1893- Cf. Thomas Nipperdey, 
Die Organisation der deutschen Parteien vor toi# (Diisseldorf : Droste, 1961), 
206—17, 

9a. Probably a reference to the "sociological state concept" of Ludwig Gum- 
plowicz, as propounded in his The Outlines of Sociology (Philadelphia 1899; Ger- 
man ed. 1885), Die sozhfogische Staatsidee (1891), and other works. (Wi) 

to. For a different version, see Gerth and Mills, Prom Max Weber, op. tit., 
2 5 1 f . On another aspect of charismatic kingship, see Marc Bloch, Les Rots thauma- 
turges: Etude sut le caractiTe surnaturel attribue & la puissance royale, particulie- 
rement en France et en AngJeterre (Strasbourg 1924). 

11. The manuscript breaks off at this point. The line of thought is contin- 
ued below in sec. 13 andch. XV:i. (W) 

na. Cf. Heinrich Schuttz,AUersklassenundMannerbwtde (Berlin 1902). 

12. One.fjf Bismarck's puns, in which a term for clothing (Be&Ieiiwwg) is 
associated with entourage (Begleittmg). 

13. An invidious comparison between William II, on the one hand, and 
Edward VII and George V on the other. 

14. The ephors were five elected magistrates, who checked the powers of the 
two kings. Some of them accompanied the Icing on campaigns, but they did not 
have any command powers. However, they could bring the king to trial, if he had 
failed in their opinion. 

15. On Mutterrecht, cf. Weber, General Economic History, 38-45 and litera- 
ture cited 271. 

16. Cf. Weber's survey of psychological studies and his own research report 
and research proposals, "Zur Psychophysik der industriellen Arbeit" (1908-09), 
reprinted in GAzSS, 61-255. 



CHAPTE 



H XV 



POLITICAL AND 
HIEROCRATIC DOMINATION 



i .. Charismatic Legitimation: Rulers versus Priests 

just as the powerlessness of the parliamentary monarch permits the 
legitimate rule of the party leader, so the powerlessness of the "insulated" 
monarch, who is an incarnation, results either in priestly domination or, 
-at least frequently, in the seizure of power by a family that is not en- 
cumbered with the monarch's charismatic obligations and hence can 
provide the real ruler (motor domtis, shoguti). Here too, the formal 
ruler must be retained because only his specific charisma can guarantee, 
the proper relation to the deities, which is indispensable for the legiti- 
macy of the whole political structure, including the position of the 
actual ruler. If the official ruler has genuine charisma — if it is personal, 
not derived — he cannot be removed in the same manner as the Merovin- 
gians, in whose case the papacy provided a charisma deal I y qualified 
power for the legitimation of the new ruling house. If an incarnated 
deity or a descendant of deity (for example, the Mikado) exercises gen- 
uinely charismatic authority, any attempt at deposing not just the 
incumbent — which, of course, is always possible in some violent or peace- 
ful manner — but the whole charismatic house .will endanger the legiti- 
macy of all powers and weaken all traditional buttresses of the subjects' 
compliance. Even under the worst conditions, therefore, such a removal 
is anxiously avoided by all groups which benefit from the existing order; 
it remains to be seen whether such a dethronement is permanently 
feasible even when the ruling dynasty is considered representative of 
an alien regime, as now in China [1911/ 13]. 

The papal confirmation of Carolingian rule is typical of all_ those nu- 
merous cases in which the ruler is not himself a deity or, at any rate, 

["58] 



i ] __ Charismatic Legitimation: Ruler versus Priest i i 5 9 

cannot sufficiently legitimize himself through charisma that is un- 
ambiguously secured through hereditary succession or some other rule; 
hence he is dependent upon legitimation by another power, most natu- 
rally the priesthood. This has usually happened wherever the develop- 
ment of religious charisma into a priestly attribute was sufficiently 
advanced, and its bearers were not identical with the political power- 
holders. The qualified bearer of royal charisma is then legitimated by 
God, that means, by the priests, or, at the least, his legitimacy is con- 
firmed by them; as experts in all things divine, they recognize the ruler 
who appears as the incarnation of a. deity. In the- Judaic Kingdom the 
priesthood consulted an oracle of lots (LosorakeV) about the king; the 
priests of Amon-Re actually controlled the crown after defeating the 
descendants of the heretic pharaoh Akhenaton; the Babylonian king 
clasped the hands of the empire-god [Marduk]; there are many other 
examples up to the exemplary case of the Holy Roman Empire. In all 
these cases legitimation can, in principle, not be denied to any genuine 
bearer of charisma. This was also true of the Imperial Crown during the 
Middle Ages, and the Electors' resolution at Rhense [where they formed 
an alliance, in 1338, against the Pope's claim to confirm the election of 
the German king] reaffirmed this very principle. Foi it is a question of 
recognition, not of discretion, whether charismatic qualification exists. 
At the same time, however, it is believed that only the manipulations of 
the priests can assure the full effectiveness of charisma, and to that extent 
a depersonalization of charisma occurs here also. In the extreme case, the 
priests' control over the crown may lead to a priestly kingship, with the 
headpriest himself exercising secular authority. This has indeed hap- 
pened several times. 

In the reverse case the high priest is subject to secular authority: 
witness the Roman Principate, Chma, the Caliphate, perhaps the Arian 
rulers, and certainly the Anglican, Lutheran, Russian and Greek- 
Catholic rulers, who in part still hold this power. Secular control over 
the church varies greatly, from mere administrative and judicial pre- 
rogatives (Vogteirechte^) to the Byzantine monarch's influence on the 
formulation of church doctrine and to the ruler's preaching function, 
as in the Caliphate. 



2. Hierocracy, Theocracy and Caesaropapism 

At any rate, the relations between secular and ecclesiastic power 
differ greatly depending on whether we deal with 1) a ruler who is 
legitimated by priests, either as an incarnation or in the name of God, 
2) a high priest who is also king — these are the two cases of hierocracy 



I I 6 O POLITICAL AND HIEROCBATIC DOMINATION [ Ch. HiV 

— or, finally, 3) a secular, caesaropapist ruler who exercises supreme au- 
thority in ecclesiastic matters by virtue of his autonomous legitimacy. 
Wherever hierocracy in this sense occurred — theocracy proper is limited 
to the second case — , it had far-reaching effects on the administrative 
structure. Hierocracy must forestall the rise of secular powers capable of 
emancipating themselves. Wherever a co-ordinate or subordinate royal 
position exists, hierocracy seeks to prevent the king from securing in- 
dependent resources; it impedes the accumulation of the thesauros which 
was indispensable to all kings of early history, and the strengthening of 
his bodyguard in order tr- vib'ate the establishment of an independent 
royal army — witness the early case of josiah in Judah. Furthermore,- 
hierocracy checks as much as possible the rise of an autonomous and 
secular military nobility, since this would threaten its predominance, and 
therefore it frequendy favors the (relatively) peaceful "bourgeoisie." 
The elective affinity between bourgeois and religious powers, which is 
typical of a certain stage in their development, may grow into a formal 
alliance against the feudal powers; this happened rather frequendy in 
the Orient and also in Italy at the time of the struggle over lay investi- 
ture [nth century]. This opposition to political charisma has everywhere 
recommended hierocracy to conquerors as a means of domesticating a 
subject population. Thus, the Tibetan, the Jewish and the late Egyptian 
hierocracy were in part supported, and in part directly created, by 
foreign rulers, and according to all available historical clues the Greek 
temple priests, especially those at Delphi, would have been willing to 
play a similar role in the event of a Persian victory. It appears that the 
most significant features of Hellenism and Judaism are products, re- 
spectively, of the defense against Persian domination and of subjection 
to it. How effective domestication by hierocratic powers can be is 
demonstrated by the fate of the Mongols, who were almost completely 
pacified by Lamaism; time and again, during one and a half thousand 
years, they had invaded the neighboring pacified civilization and had 
endangered the very survival of culture. 7 

Everywhere state and society have been gready influenced by the 
struggle between military and temple nobility, between royal and priesdy 
following. This struggle did not always lead to an open conflict, but it 
produced distinctive features and differences, whether we refer to the 
relationship between the priesdy and the warrior caste in India, the 
partly manifest and pardy latent conflict between military nobility and 
priesthood in the oldest city-states of Mesopotamia, in Egypt and Pales- 
tine, or to the complete takeover of priesdy positions by the secular 
nobility in the Hellenic polis and particularly in Rome. The clash of 
the two powers in medieval Europe and in the Islam resulted in the 



2 ] Hierocracy, Theocracy and Caesaro-papisfn i i 6 i 

greatest differences between the cultural development of the Orient 
and the Occident. 

The extreme opposite of any kind of hierocracy, caesaropapism — the 
complete subordination of priesdy to secular power — , can nowhere be 
found in its pure type. Caesaropapist powers are wielded not only by 
the Chinese, Russian, Turkish and Persian ruler but also by the English 
and German ruler, who is the head of the church Qsummus episcopus'), 
yet these powers are everywhere limited by autonomous ecclesiastic 
charisma. The Byzantine basileus, like the pharaoh, Indian and Chinese 
monarchs, and also the Protestant summi efisc&pi, attempted repeatedly, 
and mosdy without success, to impose religious beliefs and norms of 
their own making. Such attempts were always extremely dangerous for 
them. In general, the subjugation of religious to royal authority was 
most successful when religious qualification still functioned as a magical 
charisma of its bearers and had not yet been rationalized into a bureau- 
cratic apparatus with its own doctrinal system — two usually related 
phenomena; subjugation was feasible especially when ethics or salvation 
were not yet dominant in religious thought or had been abandoned 
again. But wherever they prevail, hierocracy is often invincible, and 
secular authority must compromise with it. By contrast, magic-ritual 
forces were controlled most thoroughly in the ancient polis, rather well 
by the feudal powers in Japan and the patrimonial ones in China, and 
at least reasonably well by the bureaucratic state in Byzantium and 
Russia. But wherever religious charisma developed a doctrinal system 
and an organizational apparatus, the caesaropapist state, too, contained 
a strong hierocratic admixture. 

As a rule, priestly charisma compromised with the secular power, 
most of the time tacitly but sometimes also through a concordat. Thus 
the spheres of control were mutually guaranteed, and each power was 
permitted to exert certain influences in the other's realm in order to 
minimize collisions of interest; the secular authorities, for example, 
participated in the appointment of certain clerical officials, and the 
priests influenced the educational institutions of the state. These com- 
promises also committed the two powers to mutual assistance. Examples 
of this kind are found in the ecclesiastic and secular organizations of 
the predominandy caesaropapist Carolingian empire, in the Holy Roman 
empire, which had similar features under the Ottonian and early Salic 
rulers, and in the many Protestant countries that were largely caesaro- 
papist. Under a different power distribution, such compromises also 
occurred in the areas of the Counter-Reformation, the Concordats and 
the Bulls of Circumscription. 8 The secular ruler makes available to the 
priests the external means of enforcement for the maintenance of their 



I I 6 2 POLITICAL AND HIEROCRATIC DOMINATION [ Ch. XV 

power or at least for the collection of church taxes and other contribu- 
tions. In return, the priests offer their religious sanctions in support of 
the ruler's legitimacy and for the domestication of the subjects. Powerful 
ecclesiastic reform movements, such as the Gregorian, attempted at times 
to negate completely the autonomous charisma of the political power, 
but they were not permanently successful. Similar to the [way in which 
the] doctrine of equal social rank [was adjusted by the nobility], the 
Catholic church today acknowledges the autonomy of political charisma 
by the very fact that it makes acceptance and submission a religious 
duty in the face of every government that indisputably holds de facto 
power, as long as such a regime does not despoil the church. 

Some theocratic or caesaropapist elements tend to be present in every 
legitimate political power, since ultimately every charisma is akin to 
religious powers in that it claims at least some remnant of supernatural 
derivation; in one way or another, legitimate political power therefore 
always claims the "grace of God." 

It should be clearly understood that the dominance of any of these 
systems does not depend upon the influence that religion in general 
exerts upon the life of a people. Hellenic, Roman or Japanese life was 
as much pervaded by religion as that of any hierocratic community; the 
ancient polis has even been interpreted — correctly, but with some exag- 
geration — as primarily a religious association; by and large, a historian 
like Tacitus related no fewer prodigies and miracles than did medieval 
folk literature, and the Russian peasant is immersed in religion as much 
as any Jew or Egyptian. Only the manner in which social domination 
is organized varies greatly, and this has consequences for the course of 
religious development. 

Caesaropapist government treats ecclesiastic affairs simply as a 
branch of political administration. A rather pure type is found in the 
states of Occidental Antiquity, and regimes of lesser degrees of purity 
are found in the Byzantine Empire, the Oriental states, the states of 
the Eastern church, and in the era of "enlightened" despotism in Eu- 
rope. Gods and saints are deities of the state, their worship is a state 
affair, and new gods, dogmas and cults are accepted or rejected at the 
ruler's discretion. If the political official does not fulfill these religious 
obligations himself, merely with the assistance of the priesdy profes- 
sionals, these technicalities will be put into the hands of a priesthood 
which is politically controlled. The state-maintained priesthood lacks 
economic autonomy, property and an independent administrative ap- 
paratus. All official priestly acts are supervised by the state. There is 
no specifically clerical way of life, apart from some technical training for 
ritual functions, and hence also no specifically priesdy education. 



2 J Hierocracy, Theocracy and Caesawpapsrn i i 6 3 

Theology proper does not develop under these conditions, and this in 
turn prevents an autonomous hierocratic regulation of the laymen's 
way of life: Hierocratic charisma is degraded to the level of mere ad- 
ministrative technique. Moreover, a caesaropapist nobility transforms 
the high-ranking priestly positions into hereditary family property, ex- 
ploitable as sources of income, prestige and power, and the lower- 
ranking ones into prebends which it fills like positions on its manorial 
dependencies; monastic and similar foundations become "welfare" bene- 
fices for unmarried daughters and younger sons, and compliance with 
the traditional ritual prescriptions becomes part of the aristocratic status 
ceremonial and status conventions. Whenever caesaropapism predomi- 
nates in this fashion it is inevitable that the substance of religion is 
stereotyped in terms of the purely technical, ritualist manipulation of 
supernatural powers, and any development toward a religion of salva- 
tion is impeded, 

3. The Church 

Wherever hierocratic charisma is stronger than political authority it 
seeks to degrade it, if it does not appropriate it outright. Since political 
power claims a competing charisma of its own, it may be made to appear 
as the work of Satan; time and again the most consistent ethico- 
hierocratic trends in Christianity have tried to impose this viewpoint. 
Alternatively, since God has permitted the existence of political power, 
it may also be considered an inevitable concession to the sinfulness of 
the world; the believer should resign himself to political power, but he 
should avoid contact with it as much as possible; at any rate its' specific 
form appears ethically irrelevant. This was the attitude of Christianity 
in its eschatological early period. Finally, political authority may be 
considered a God-given tool for the subjection of anti-ecclesiastic forces, 
and then it is expected to put itself at the disposal of the hierocratic 
authority. In practice, therefore, hierocracy seeks to turn the political 
ruler into a vassal and to deprive him of independent means of power, 
insofar as this is compatible with its own interests in the survival of the 
political structure. If the priests do not assume political powers directly, 
they legitimize the king through the oracle (as in the case of Judah),' 
or by confirming, anointing and crowning him. They may prevent him 
from accumulating a thesauros, so that he cannot create a personal fol- 
lowing and maintain his own mercenaries (witness again the charac- 
teristic case of Josiah in Judah). Hierocracy creates an autonomous 
administrative apparatus, a tax system (tithes) and legal forms (endow- 



I I 6 4 POLITICAL AND HIEROCRATIC DOMINATION { Ch. XV 

ments) for the protection of ecclesiastic landholdings. The charismatic 
administering of magic blessings, which is at hist a freely chosen voca- 
tion and living, develops into the patrimonial office of royal or seigneurial 
benefice-holders, for whose maintenance a benefice — as an endowment 
—may be established with some temple, where it is to some extent pro- 
tected from unholy powers. A case in point are the commensality of the 
Egyptian, Oriental and East Asian temple priests, and the prebends in 
Itind deriving therefrom. 

Four features characterize the emergence of a church out of a hieroc- 
racy: i) the rise of a professional priesthood removed from the "world," 
with salaries, promotions, professional duties, and a distinctive way of 
life; 2) claims to universal domination; that means, hierocracy must at 
least have overcome household, sib and tribal ties, and of a church in the 
full sense of the word we speak only when ethnic and national har- 
riers have been eliminated, hence after the levelling of all non-religious 
distinctions; 3) dogma and rites (Kuhws) must have been rationalized, 
recorded in holy scriptures, provided with commentaries, and turned 
into objects of a systematic education, as distinct from mere training in 
technical skills; 4) all of these features must occur in some kind of 
compulsory organization. For the decisive fact is the separation of 
charisma from the -person and its linkage with the institution and, par- 
ticularly, with the office: from this fact derive all the above features, 
which we find developed in different degrees of typicality. Sociologi- 
cally, the church differs from the sect by considering itself the trustee of 
a "trust fund" of eternal blessings that are offered to everyone; as a 
rule, it is not joined voluntarily, like an association, but its members are 
born into it; hence even those who lack religious qualification, who are 
heretical, are subject to its discipline. In one word, the church is the 
bearer and trustee of an office charisma, not a community of personally 
charismatic individuals, like the sect. In the full sense of the term, 
churches have arisen only in Islam and Lamaist Buddhism, apart from 
Christianity; in a more restricted sense — because of the national de- 
limitation—churches were also created by Mahdism, Judaism and, ap- 
■ patently, the ancient Egyptian hierocracy. 



4. Hierocratic Heglementation of Conduct and 
Opposition to Personal Charisma 

The church advances its demands toward the political power on the 
basis of its claims to office charisma. This charisma is used for a radical 
elevation of its bearer's dignity. For its officials the church secures im- 



4 ] __ Hierocratic Reglementation of Conduct 1165 

munity from secular jurisdiction, exemption from taxation and all other 
public duties, and protection, through heavy penalties, against any show 
of disrespect. In particular, the church establishes a distinctive way of 
life for its officials. This requires a specific course of training and hence 
a regular hieiocratic education. Once it has created the latter, it also 
gains control over lay education and, through it, provides the political 
authorities with officials and subjects who have been properly brought 
up in the hierocratic spirit. 

By virtue of its power, the hierocratic church also establishes a com- 
prehensive ethico- religious reglementation of all spheres of conduct; in 
principle, this system has never tolerated any substantive limitations, 
just as today Catholic doctrine cannot recognize any limits for its, claims 
upon the disctplina morum. For the enforcement of its claims hierocracy 
disposes of very considerable means of power, even beyond the support 
of the political authorities. Excommunication, the exclusion from the 
church service, has the same effect as the strictest social boycott, and 
in one way or another all hierocracies resort to economic boycott by 
means of the injunction against social intercourse with those ostracized. 
Insofar as this reglementation of conduct is determined by hierocratic 
power interests — and that, after all, is true to a large extent — , it is 
directed against the rise of competing powers. This has several conse- 
quences: The "weak" — those subject to non-hierocratic power — are 
defended; hence slaves, serfs, women and children are championed 
against the arbitrariness of their master, and petty-bourgeois strata and 
peasants against usury; the rise of economic powers that cannot be con- 
trolled by hierocratic means is impeded, especially that of new powers 
alien to tradition, such as capitalism; in general, any threat to tradition 
and the belief in its sanctity is opposed, since this is the inner basis of 
hierocratic power; therefore, the established and traditional authorities 
are strongly supported. 

In this manner hierocracy leads to typification just as much as its 
very opposite, especially in its most characteristic features. The rational 
organization for administering divine blessings is an institution (_An- 
stfl/t)) an d charismatic sanctity is transferred to the institution as such; 
this is typical of every church. Hence fully developed office charisma 
inevitably becomes the most uncompromising foe of all genuinely per- 
sonal charisma, which propagates and preaches its own way to God and 
is prophetic, mystic and ecstatic. Office charisma must oppose it, in order 
to preserve the dignity of the organization. Whoever works miracles 
on his own, without an office, is suspect as a heretic or magician. (An 
early example can be found in the inscriptions of the period of the 
Sutras, and one of the four deadly sins of the Buddhist monastic order 



I I 6 6 POLITICAL AND HIEROCRATlC DOMINATION [ Ck. XV 

is the claim to personal supernatural powers.) The miracle is incorpo- 
rated into the regular organization, as for example the miracle of the 
sacraments. Charismatic qualification is depersonalized; it adheres to the 
ordination as such and is, in principle, detached from the personal 
worthiness of the officeholder (character indelehilis') — this was the sub- 
ject matter of the Donatist controversy. In accordance with the overall 
scheme, the incumbent is distinguished from the office; otherwise his 
unworthiness would compromise the office charisma. The position of 
the charismatic prophets and teachers in the old church declines as 
the church administration is bureaucratized in the hands of the bishops, 
and presbyters, again in accordance with the familiar scheme of de- 
personalization. The structure of the apparatus is adapted, in technical 
and economic respects, to the conditions of everyday operations. This 
results in an office hierarchy with delimited jurisdictions, regular chan- 
nels, reglementation, fees, benefices, a disciplinary order, rationalization 
of doctrine and of office-holding as a "vocation" — in fact, these features 
were first developed, at least in the Occident, by the church as the heir 
to ancient traditions, which in some respects, probably originated in 
Egypt. This is not at all surprising, since the typically bureaucratic 
policy of distinguishing the unworthy incumbent from the holy office 
had to be carried through consistently as soon as the development 
toward the charisma of office had gotten under way. 



5. The Hierocratic Ambivalence Toward Asceticism 
and Monastichm 

Here arises one of the great problems of hierocracy: How is the official 
apparatus to cope with the emergence of a charismatic following of 
God, the monks, who adhere to the demands of the charismatic founder 
and therefore reject any compromise with mundane concerns? Monastic 
asceticism can have two very different meanings: CO Individual salva- 
tion through finding a personal, direct path to God. This has been of 
primary importance in the religions of salvation, hence for Hindu, 
Buddhist, Islamic and Christian ascetics. The radical demands of the 
revolutionary and almost always eschatological charisma can never be 
realized within those religious organizations that insist upon com- 
promises with the economic and other mundane power interests, and 
the withdrawal from the world — from marriage, occupation, office, 
property, political and any other community — is only the consequence 
of this state of affairs. Originally, in all religions the successful ascetic, 
accomplishing the extraordinary, acquires the charismatic ability of 
forcing God's hands and of working of miracles. Of course, such per- 



5 ] _ Hierocrattc Ambivalence Toward Asceticism i i 6 7 

sonal charisma is ultimately irreconcilable with the hierocratic claims of 
an institution of salvation {Heilsanstalt) that seeks to monopolize the 
way to God — extra ecclesiam nulla sahts is the motto of all churches. 
This conflict is exacerbated when such saindy men form exclusive com- 
munities; such a step negates the universalis! and levelling claims to 
domination which the church shares with every bureaucracy, as well as 
the exclusive significance of its office charisma. But each of the great 
churches was forced to compromise with monasticism. A monastic order 
is unknown only in Mahdism and Judaism, which in principle recog- 
nize no other path to salvation but the faithful observance of the Jaw. 
There were perhaps monastic beginnings in the late Egyptian church. 
The Christian church, in particular, could not reject the consistent ap- 
plication of its scriptural principles. But it reinterpreted asceticism as a 
specific/'vocation" within its own ranks. The consilia evangelica were 
the highest ideal, but considered too demanding for the average believer. 
Therefore, full adherence to them was treated as an extraordinary 
achievement to be utilized as a repository of blessings for the benefit of 
those deficient in charismatic gifts. 

(2) Eventually, asceticism is completely reinterpreted into a means, 
not primarily of attaining individual salvation in one's own way, but of 
preparing the monk for work on behalf of the h ;rocratic authority — the 
foreign and home mission and the struggle ag£ nst competing authori- 
ties. Buttressed by its own charisma, such innerworldly asceticism always 
remained dubious to ecclesiastic authority, which relied solely on office 
charisma. But the advantages prevailed. Asceticism thus leaves the 
monastic cell and seeks to dominate the world; through its competition 
it imposes its own way of life, in different degrees, upon the office- 
holding priesthood and partakes in the administration of the charisma 
of office vis-a-vis the subjects (laymen). However, the tensions always 
persist. The integration of ecstatic asceticism into the Islamic church, 
through the orders, can hardly be considered consistent, even though 
it was theologically facilitated by al-Ghaz&ll's establishment of the 
orthodox dogma. Buddhism had the smoothest solution^ since from the 
beginning it was a religion created by and for monks and propagated 
by them: the church was completely dominated by the monks, who 
constituted a charismatic aristocracy. Theologically, this solution was 
particularly easy in the case of Buddhism. The Eastern churches found 
an essentially mechanical solution by increasingly reserving all higher- 
ranking offices for the monks. On the one hand, irrational and indi- 
vidual asceticism was glorified, on the other there were institutionalized 
churches which had been bureaucratized by the states in Russia the 
church did not even have its own monocratic leader. This inconsistency 
corresponded to a hierocratic development that was deflected by foreign 



I I 6 8 POLITICAL AND HIEROCRATIC DOMINATION . [ Ck, XV 

domination and caesaropapism. In Russia the reform movement of the 
Josephites [see n. 5 to ch. VI, sec. vii above] offered its services to 
caesaropapism as the strongest power, and therefore only useful instru- 
ment of reform, just as the Cluniac reformers found their support in 
Henry III [1039-56]. 

Friction and compromise can be observed most clearly in the Occi- 
dental church, whose internal history is largely made up of them. 
Eventually a consistent solution was found by integrating the monks 
intoa bureaucratic organization; subject to a specific discipline and re- 
moved from everyday life by the vows of poverty and chastity, they 
became the troops of the monocratic head of the church. This develop- 
ment took the form of the ever recurrent founding of new orders. It 
is quite possible that Irish monasticism, which for a time was the trustee 
of a significant part of the cultural traditions of Antiquity, might have 
created a distinctively monastic church in the Occidental mission terri- 
tories if it had not entered into close relations with the Holy See. By con- 
trast, the Benedictine order established monastic manors once its 
charismatic period was over. Even the Cluniac Benedictines (and all the 
more so, the Premonstratensians) were seigneurial orders of notables, 
whose very moderate asceticism — witness their lenient dress regulations — 
was limited to what was compatible with their status. Here, too, interlocal 
organization existed only in the form of filiation. The significance of these 
orders consisted essentially in the re-emergence of monasticism as an 
instrument of hierocratic control. The Cistercian order combined the 
first strong interlocal organization with an ascetic organization of agri- 
cultural work which made possible its well-known achievements' in 
colonization. 



6. The Religious-Charismatic and the Rational 

Achievements of Monasticism 

In its charismatic stage monasticism is anti-economic, and the ascetic 
is the anti-type of the acquisitive bourgeois as well as of the feudal lord 
who enjoys his wealth ostentatiously. He lives alone or in freely formed 
"herds"; he is unmarried and hence free of family responsibilities, un- 
concerned with political and other powers, he lives from gathered fruits 
or alms, and he has no abode in the "world." The original rule of the 
Buddhist monks required an itinerant way of life, exrept during the 
rain period, and limited the time which a monk could spend at any 
given location — for, the sake of an asceticism that was wholly irrational 
in its goals and means, that is, oriented toward shedding the economic 
and physical shackles of earthly existence and toward gaining the union 



6 } Religious & Rational Achievements of Monasticism i 169 

with the Divine. In this form monasticism is indeed part of the specif- 
ically non-economic force of genuine charisma. The monks are the old 
charismatic disciples and followers, but instead of a visible hero, the 
prophet removed to the hereafter is their invisible leader. Yet this stage 
is not the last one. Rational economic considerations and luxury needs 
cannot compete with the achievements of religious charisma, which are 
"extraordinary," like charisma itself. This is also true of the achievements 
of hierocratic power in general. The pyramids appear preposterous un- 
less we realize that the subjects firmly believed in the king as god 
incarnate. The Mormon achievements in the salt desert of Utah violate 
all rules of rational settlement. This is all the more typical of the 
monastic achievements, which almost always accomplish that which 
appears economically not feasible. In the midst of the Tibetan snow 
and sand deserts Lamaist monasticism produced economic and architec- 
tural wonders that in magnitude, and apparently also in quality, measure 
up to the largest and most famous artifacts of men: witness the Potata 
[Palace in Lhasa]. From an economic viewpoint, the monastic com- 
munities of the Occident were the first rationally administered manors 
and later the first rational work communities in agriculture and the 
crafts. The artistic achievements of the Buddhist monks had a tremen- 
dous impact on the Far East; this was as extraordinary as the almost 
unbelievable fact that remote Ireland, which today may seem con- 
demned to eternal marginality, was for several centuries the bearer of 
the cultural traditions of Antiquity and that its missionaries had a de- 
cisive share in shaping the Occidental church, whose peculiar develop- 
ment was of such paramount historical importance. Furthermore, the 
fact that the Occident alone developed harmonic music, 3 as well as the 
distinctiveness of its scientific thought can be ascribed in large measure to 
Benedictine, Franciscan and Dominican monasticism. 

At this point we focus on the rational achievements of monasticism, 
which appear irreconcilable with its charismatic anti-rational, specifically 
s anti-economic, foundations. However, this phenomenon is similar to that 
of the routinization of charisma in general: Asceticism becomes the* 
object of methodical practices as soon as the ecstatic or contemplative 
union with God is transformed, from a state that only some individuals 
can achieve through their charismatic endowments, into a goal that 
many can reach through identifiable ascetic means just as in the charis- 
matic training of the guilds of magical priests. Everywhere the method 
was at first basically the same as that developed by the most ancient 
monasticism, the Indian, with the greatest consistency and variety. In its 
basic regulations the method of the Indian monks is very similar to that 
of the Christian monks, although perhaps it is there more physiologically 
refined (breathing control and similar techniques of the yogis and other 



I 170 POLITICAL AND HIBROCRATlC DOMINATION [ Ch. XV 

virtuosi') and here more psychologically (confessional, tests of obedience, 
the exertitia sjnritvalia of the Jesuits). Moreover, even though the 
crucially important treatment of work as an ascetic instrument was not 
confined to the Occident, it was here developed far more consistendy 
and universally. Everywhere, however, the central concern of the monk 
is the achievement of complete control over his self and his natural 
drives, for these impede a unioa with God. This goal alone necessitates 
the ever further rationalization of conduct, arid this has in fact occurred 
wherever monasticism established a strong organization. As a result of 
this development we find the usual forms of the charismatic and corpo- 
rate novitiate, the hierarchy of ordinations and other positions, the 
abbot, eventually the merger of cloisters into a congregation or an order, 
but above all the t loister itself and the monastic rule that controls every 
detail of conduct. 

Henceforth, r owever, monasticism must operate within the realm of 
=conomic life. It is no longer possible for the monks to maintain them- 

'Ives permanently through purely anti-economic means, especially 
f-cndicancy, even though the principle may be retained as a fiction; on 
^he contrary — as we will discuss later — rational, methodical self-control 
cannot but strongly influence economic behavior. The very fact that the 
monks were a community of ascetics accounts for the astonishing 
achievements that transcend those attainable through routine economic 
activities. Among the believers the monks are the elite troops of religious 
virtuosi. Just like feudalism, monasticism reaches its heroic age and its 
most consistent organization in hostile areas: the domestic and foreign 
mission territories. It is no accident that Buddhism evolved the Lamaist , 
hierarchy, which corresponds even in the ceremonial details to the 
Occidental curia, not in India but in Tibet and Mongolia, where it was 
continuously threatened by the wildest barbarian peoples of the world. 
In the same manner, the Occidental mission produced the most typical 
form of Latin monasticism in barbarian countries. 

We will not pursue this phenomenon further at this point and will 

urn instead to the relations between monasticism and the political and 
.iierocratic powers. 



7. The Uses of Monasticism for Caesaropaptsm and 
Hierocracy 

Caesaropapism has various political reasons for favoring monasti- 
cism, foremost, the need of its own legitimation and ot domesticating 
the subjects; these needs will be discussed below [sec. 8]. At the height 



7 ] The Uses of Monasticism 1 1 7 1 

of his power Gengis Khan established relations with the Buddhist 
monks, as did the Tibetan and Chinese rulers. These relations had 
probably the same motivation as those of the Germanic, Russian and 
other rulers to the monastic movements, and as the friendly contacts 
of Frederick II of Prussia with the Jesuits which facilitated the order's 
survival despite the bull Dominus ac redemptor noster [1773]. As as- 
cetics, the monks are the most methodical and, politically, the %ast 
dangerous teachers; at least initially, they are the cheapest instructors, 
and in fact they are the only available ones in an agricultural state. If 
the political ruler wants to create an apparatus of officials and a counter- 
weight against the nobility, the natural opponent of such a patrimonial 
or bureaucratic rationalization, he cannot wish for a more reliable sup- 
port than the influence of the monks on the masses. As long as this 
influence persists, the hierocratic control of conduct is usually as effec- 
tive as in the case of hierocratic domination proper. However, the politi- 
cal authorities must pay a high price for this support. The monks readily 
place themselves at the disposal of the ruler's interest in rational church 
reform — whether he be Emperor Henry III or King Asoka— , but their 
charismatic religiosity rejects all caesaropapist intervention in religious 
affairs much more vigorously than does any regular priesthood, and their 
strict ascetic discipline permits them to establish a very strong power 
position. Once monasticism has gained strength, it will clash sooner or 
later with caesaropapist claims. Then the secular power may be ex- 
propriated, as it happened in Tibet, or monasticism may be completely 
destroyed, as in the course of the repeated persecutions in China. 

Far more problematic are the relations between monasticism and 
hierocratic office charisma. On the surface, they are relatively smooth if 
there is no patriarch, as in genuine Buddhism; it is true that in ancient 
Indian Buddhism the highest-ranking dignitary was called a patriarch, 
but his position seems to have been very weak because of the caesaro- 
papist policies of the rulers, who usurped a role similar to that of the 
Byzantine emperors. The relations between monasticism and hierocracy 
are also relatively easy if the patriarch is selected and controlled mainly 
by the monks, as in Lamaism, and governs almost exclusively with 
monastic officials. But even then the inherent tensions emerge, the more 
genuine monasticism is preserved or restored as a radical fulfillment of 
divine discipleship which disdains any compromise with the sinful 
world of power and property and which is independent of institutional 
charisma because its own charisma is immediate to God. 

The institution of lay brotherhood, created to free the monks for 
purely spiritual duties, carried the aristocratic stratification into the 
cloister, but at the same time attenuated the latter's feudal basis even 



I I 7 2 POLITICAL AND HIEHOCRATIC DOMINATION [ Ch. XV 

further. In contrast to the agrarian Cistercians, the centralist mendicant 
orders were tied to urban residence, in line with their original, purely 
charismatic form of maintenance, and their activities — preaching, care of 
souls and charitable labors — were also primarily oriented to the needs 
of urban strata. These orders were the first to carry asceticism from the 
cloisters into the streets for the sake of systematic missionary efforts 
among laymen. The (at least formally) strict enforcement of the prin- 
ciple of poverty, and the abolition of the stahilitas loci, which turned 
charity operations into itinerant activities, increased the utility of these 
unconditionally available monks for the direct control of all urban 
strata; the latters' systematic affiliation through the tertiary orders car- 
ried the monastic ethos beyond the confines of monasticism. The 
Capuchins and similar younger orders were also increasingly oriented 
toward belaboring the masses, and the last great attempts, by the Carthu- 
sians and Trappists, to restore the original asocial idea of asceticism, 
individual salvation, could no longer reverse the overall development 
of monasticism 'toward social goals, that means, toward serving the 
church. 

The gradual rationalization of asceticism into an exclusively disci- 
plinary method reached its apex in the Jesuit order. Gone were the 
individual charismatic propagation and dispensation of salvation, whose 
elimination from the old orders, especially the Franciscan, had been so 
difficult for the church which was bound to view such efforts as a 
threat to its office charisma. Gone, too, was every irrational meaning of 
asceticism as an individual search for salvation — another dubious idea, 
from the viewpoint of office charisma. Gone were all nonrational means, 
that is, practices the result of which is not calculable. The rational end 
becomes dominant (and "sanctifies" the means — a principle not only of 
Jesuit but of every relativist or teleologic ethic; this principle is here 
distinctive only because it accentuates the rational reglementation of 
life). With the aid of this bodyguard, which took a special oath of un- 
conditional obedience to the Holy See, the bureaucratic rationalization 
of the church was carried through. Much earlier, the introduction of 
celibacy had represented a reception of monastic forms; accepted upon 
the insistence of the Cluniac movement, one of its major purposes 
during the conflict over lay investiture was the prevention of the feudal- 
ization of the church and the safeguarding of the office character of 
clerical positions. Even more important was the impact of the monastic 
spirit upon the principles of conduct in general. As the exemplary reli- 
gious individual, the monk was the first professional, at least in those 
orders that practiced rationalized asceticism, most of all the Jesuit order. 
The monk lived in a methodical fashion, he scheduled his time, prac- 



7 ] __ The Uses of Monasticism ' X i 7 3 

ticed continuous self-control, rejected all spontaneous enjoyments and 
all personal obligations that did not serve the purposes of his vocation. 
Thus he was predestined to serve as the principal tool of bureaucratic, 
centralization and rationalization in the church and, through his in- 
fluence as priest and educator, to spread corresponding attitudes among 
the religious laymen. For centuries the local church authorities (bishops, 
parish clergy) opposed this overwhelming monastic competition: As 
out-of-town, and therefore popular, father confessors, the monks could 
easily underbid the ethical demands of the local clergy, just as under 
conditions of free competition such celibate ascetics could underbid the 
secular teachers, who had to support their families. This struggle of 
the local authorities was at the same time directed against the bureau-' 
cratic centralization of the church. 

Monasticism did not have such a great impact in any other church, 
with the exception of Buddhism, which, however, had a hierarchic head 
only in Lamaism. In the Eastern church monasticism was formally in 
control, since all higher-ranking positions were occupied by monks, but 
the caesaropapist subjection of the church destroyed the power of 
monasticism. In Islam the orders played a leading role only in the 
eschatological (methodist) movements. In Judaism monasticism was 
completely absent. No other church rationalized asceticism, and used it 
for hierocratic purposes, as the Occidental church has done, most con- 
sistently through the Jesuit order. 



8. Compromises Between Political and Hierocratic Power 

The antagonism of political and magic charisma is primeval. 
"Caesaropapist" as well as "hierocratic" rulers can be found in African 
villages no less than in big states. Even under the most primitive condi- 
tions, or rather especially under them, the gods or saints are in part 
regional, in part local. -Particularly at the stage of the permanent settle- 
ment far excellence, the city, local deities are preeminent; this results 
in a considerable coincidence of religion or, better, of cult object and 
political territory. The city god or patron saint is indispensable for the 
founding and existence of every political community, and the polytheist 
concessions of all great monotheistic religions are inevitable, as long as 
the power of the city is the basis of the individual's political and eco- 
nomic existence. At this stage, every establishment of a great state is 
necessarily accompanied by a synoikism in the new capital of the gods 
and saints of the affiliated or conquered cities and government seats. 
This happened as late as the unification of the Moscovite empire when 



I I 7 4 POLITICAL AND HIEROCRATIC DOMINATION [ Ch. XV 

the relics were transported to Moscow from the cathedrals of the other 
cities; there are other well-known examples. The "tolerance" of the 
Roman state was of a similar character: The state accepted the worship 
of all gods of affiliated states, if this was (qualitatively) at all feasible 
and, during the Empire, if they subordinated themselves in turn to the 
politically motivated cult of the emperor. Resistance came only from 
Judaism, which was tolerated for economic reasons, and from Chris- 
tianity. The political boundaries and the geographical extension of a 
religion tend to coincide, as soon as this stage has been reached. It may 
be brought about by the political as well as the hierocratic power: The 
triumph of one's own god is the definite confirmation of the ruler's 
triumph, an effective guarantee of political obedience, and a means of 
turning allegiance away from other rulers; moreover, the religion of an 
autonomous priesthocd finds its natural missionary object in the political 
subjects and is eager to proceed to the cogs intrare, especially if it is a 
religion of salvation. It i<; true that Islam permitted an horizontal divide, 
the use of religion as r -i ,r iex of a status order, but this was connected 
with the economic privi legation of its adherents. Ideally at least, Oc- 
cidental Christianity was a political community, and this had certain 
practical consequences. 

It is very rare that the antagonism between political and hiero- 
cratic power claims finds a simple solution in the full victory of one 
side or the other. The history of all churches demonstrates that even 
the most powerful hierocracy is continuously forced to compromise with 
the economic and political realities; and in general, the caesaropapist 
ruler cannot afford to intervene into questions of dogma and even less, 
of sacred rites. For every change in the ritual endangers its magic 
efficacy, and thus mobilizes all the interests of the subjects against the 
ruler. From this perspective the great schisms in the Russian church — 
over whether one should cross oneself with two or three fingers and 
similar issues — appear readily understandable/ 

Whether an individual compromise between political and hierocratic 
power tends more toward caesaropapism or hierocracy depends of course 
upon the power constellation of the status groups concerned, and to 
that extent indirectly upon economic co-determinants. However, no 
meaningful generalizations can be made on this score. Moreover, the 
compromise is strongly influenced by "the specific character of the reli- 
gion. Especially important is whether a religion has a divinely ordained 
ecclesiastic institution that is separate from the secular power. This is 
the case only indirecdy in Buddhism outside Lamaism (through the 
prescription of the one and only right path to salvation); it is true to a 
limited extent of Islam and the Eastern church, not at all of Lutheran- 



8 ] Compromises Between Political & Hierocratic Power i i 7 5 

ism, but .clearly of the Catholic church and Calvinism. Since Islam 
was linked from the very beginning to the expansionist interests of the 
Arabs and advocated the forcible subjugation of the infidels, the prestige 
of the caliph became so great that no serious attempt was made to sub- 
ject him to hierocratic control- Even though the Persian Shiites -reject 
this very role of the caliph and place their eschatological hopes in the 
farousia of the prophet's legitimate successor in Persia, the Shah's 
position is predominant; this is not changed by the fact that the mood 
of the local population is considered in the appointments of priests. The 
Catholic church has tenaciously resisted caesaropapist tendencies; in 
spite of sorhe temporarily necessary concessions, it eventually succeeded, 
since it had its own administrative organization, which rests on Roman 
tradition and is divini iuris for the believers. Luther was completely 
indifferent toward the organization of the church as long as the Word 
could be spread in its purity. This indifference, deriving from the indi- 
vidualist nature of his piety and also from an eschatological streak in 
his personal faith, in effect surrendered his church to the caesaropapism 
of the secular power. This was facilitated by the political and economic 
conditions of the territories in which Lutheranism originated. For Cal- 
vinism the Biblical theocracy, in the presbyterian form, was divinely 
ordained. However, it could establish a theocracy only for a limited time 
and only in local areas: in Geneva- and New England, incompletely 
among the Huguenots, and in the Netherlands. 

A considerable degree of hierocratic development, especially the 
existence of an autonomous office hierarchy and education, is the normal 
precondition for the rise of systematic theological thought; conversely, 
the emergence of theology and of theological training is one of the 
strong buttresses of hierocratic power, compelling even the caesaropap- 
ist state to permit an hierocratic influence on the subjects. A fully 
developed ecclesiastic hierarchy, with an established body of dogmas 
and particularly a well-orgarLOi educational system, cannot be uprooted 
at all. Its power rests upon the principle that "God must be obeyed 
- more than men," for the sake of spiritual welfare both in the here and 
the hereafter. This has been the most ancient check on all political 
power, the most effective one up iu the g";a* Puritan Revolution and 
the declarations of the Rights of Man. 

As a rule, a compromise is concluded between the otherworldly and 
the thisworldly powers; this is indeed in their mutual interest. The 
political power can offer exceedingly valuable support to the hiero- 
cracy by providing the brachium saecufare for the annihilation of heretics 
and the exaction of taxes. In turn, two qualities of the hierocracy 
recommend an alliance to the political authorities. First of all, as a 



I I 7 6 POLITICAL AND HIEROCRATIC DOMINATION [ Cfe, XV 

legitimating power hierocracy is almost indispensable even (and espe- 
cially) to the caesaropapist ruler, but also to the personally charismatic 
(for example, the plebiscitarian) ruler and all those strata whose privi- 
leges depend upon the "legitimacy" of the political system. Furthermore, 
hierocracy is the incomparable means of domesticating the subjects in 
things great and little. Just as in Italy the most anticlerical radical 
parliamentarian does not like to do without the domesticating influence 
of the convent schools on women, so the Hellenic tyrannis furthered 
the cult of Dionysus; most hnportandy, hierocracy has been used for 
the control of subjugated peoples. Lama ism pacified the Mongols and 
thus stopped forever the continually renewed barbarian invasions from 
the steppe into pacified, civilized areas. The Persian empire imposed the 
"law" and hierocratic domination upon the Jews, in order to render 
them harmless. The quasi-ecclesiastic development in Egypt also appears 
to have been advanced by the Persians. In Hellas all oracles of Orphic 
or other prophets expected and hoped for a Persian victory, in order to 
offer themselves for the same purpose. The battles of Marathon and 
Plataeae were also a decision in favor of the secular character of 
Hellenic civilization. 

The domesticating role of hierocracy is even greater with regard to 
internal control. It is true that military or commercial notables resort 
to religion only in a strictly traditionalist fashion, since it creates 
a dangerous competing power based on the emotional needs of the 
masses; at any rate, they divest religion of any charismatic-emotional 
character. Thus the Hellenic aristocracies rejected, at least in the begin- 
ning, the cult of Dionysos, and the centuries-old rule of the Roman 
Senate systematically erased ecstasis in any form, degrading it to the 
level of supersthio (the liberal translation of the Greek iko-tow;') and 
suppressing ail its means, especially the dance. This happened even 
in the rites: the dance of the salii was a procession, and the fratres 
Arvales, significantly, performed their age-old dance behind closed 
doors. This has had the greatest consequences for the characteristic dif- 
ferences between Roman and Hellenic culture (for example, in music). 
In contrast to this rule by notables, the personal ruler everywhere seeks 
the support of religion. The resulting compromise between secular and 
religious power may vary greatly, and the actual distribution of power 
may shift without any formal modification of the compromise. Fateful 
events play a tremendous role: Perhaps a powerful hereditary monarchy 
would have turned the Western church into a similar direction as the 
Eastern, and without the Great Schism the decline of hierocratic power 
might never have occurred in the way it actually happened. 



o ] Social Preconditions of Hierocracy & Religiosity i i 7 7 

o. Tke Social Preconditions of Hiewcratic Domination 
and of Religiosity \ 

Since the outcome of the struggles between political and hierocratic 
power depends so largely upon historical "accidents," it is not easy to 
generalize about their determinants. In particular, these struggles are 
not determined by the general degree of religiosity among the people. 
Roman and, even more, Hellenic life was permeated by religion, and 
yet hierocracy did not succeed. If we wanted to stress the dualistic de- 
velopment of transcendentalism, which was absent there, we would 
have to say that it was also completely absent in Judaism at the time 
the hierocracy emerged; conversely, it may be said that the rise of 
transcendental speculation resulted at least in part from the rational 
development of the hierocratic system, as appears certain for Egypt and 
India. 

Neither are some other presumptive determinants really decisive. 
The extent of dependence on natural conditions, on the one hand, and 
on one's own labor on the other does not provide a universal explana- 
tion. It is true that the inundations of the Nile were important for the 
development of hierocracy, but only insofar as they helped to link the 
parallel rational development of state and priesthood with astronomical 
observation and transcendental speculation. The rule of the alien 
Hyksos over Egypt [ca. 1650-15 50 B.C.] apparently preserved the 
priesthood as the only guarantor of internal unity, just as in the West 
the tribes of the Teutonic Migration retained the . bishops. The- per- 
petual danger of earthquakes in Japan, for example, did not prevent 
the feudal clans from forestalling any extended hierocratic rule. "Natu- 
ral" or economic factors .were as unimportant for the rise of the Jewish 
hierocracy as for the relations between feudalism and Zoroastric hiero- 
cracy in the Sassanid empire or for the historic accident which provided 
Arabian expansionism with a great prophet. 

Of course, there are many diverse connections between the history 
of hierocratic structures and the concrete socio-economic conditions un- 
der which they must operate. The few generalizations that may be 
ventured on this score refer to the hierocracy's relations to the "bour- 
geoisie," on the one hand, and to feudal powers on the other. Bourgeois 
strata protected hierocracy against imperialism and feudalism not only 
in medieval Italy — the Guelph support could have been due to a unique 
historical constellation — , but we know of comparable conditions from 
the earliest Mesopotamian inscriptions. In Greece the bourgeois strata 
were the main supporters of the cult of Dionysos; the ancient Christian 
church was a specifically urban institution. (In the Empire, paganus 



I I 7 8 POLITICAL AND HIEROCRAT1C DOMINATION [ Ck. XV 

denotes the "civilian" as well as the "heathen": the term encompasses 
everything that is socially despised, corresponding to our use of the 
term Ptsang, which derives from paysan.^} The church was urban for 
Thomas Aquinas, too, who ranked the peasants lowly. Finally, the 
Puritan hierocracy and almost all medieval sects, with the memorable 
exception of the Donatists, originated in the cities, just as in their day 
the most passionate supporters of the papacy. 

This contrasts with the ancient aristocracy, above all, the early 
Hellenic urban nobility, which treated the gods with complete lack of 
respect in the Homeric epic — an attitude fateful for the whole develop- 
ment of Hellenic religion — ; it also contrasts with the Cavaliers of the 
Puritan period and the feudal nobility of the early Middle Ages. After 
all, the feudal state arose on the basis of Charles Mattel's secularization, 
which verged on robbery. It is true that the Crusades were by and large 
an exploit of French knights, but this is not indicative of hierocratic 
sympathies; the Crusades were undertaken largely with a view toward 
securing fiefs for descendants, an interest to which Pope Urban ap- 
pealed explicidy in his well-known address. It should be clear that 
we do not deal here with the contrast between piety and impiety, but 
with the type of religiosity and the related emergence of a "church" in 
the technical sense. 

The bourgeoisie depends economically on work which is continuous 
and rational (or at least empirically rationalized); such work contrasts 
with the seasonal character of agricultural work that is exposed to un- 
usual and unknown natural forces; it makes the connection between 
means and ends, success and failure relatively transparent. The product 
of the potter, weaver, turner and carpenter is much less affected by 
unpredictable natural events, especially by organic reproduction that 
involves the mystery of "creation" for which only phantasy can provide 
an explanation. The resulting rationalization and intellectualization 
parallel the loss of the immediate relationship to the palpable and vital 
realities of nature, because the work is done largely tyithin the house 
and is removed from the organically determined quest for food; perhaps 
it is also relevant that the largest muscles of the body are not used. The 
forces of nature become an intellectual problem as soon as they are no 
longer part of the immediate environment. This provokes the rationalist 
quest for the transcendental meaning of existence, a search that always 
leads to religious speculation. Ecstatic frenzy or dreaming are replaced 
by the paler forms of contemplative mysticism and of common-sense 
contemplation. At the same time, the steady professional nature of the 
artisan's work for his customers easily suggests the conception of duty 
and reward as the basis of conduct, and since the social context of his 



9 ] Social Preconditions of Hierocracy & Religiosity i 179 

work requires a relatively rational order, religiosity tends to be imbued 
with moralistic considerations. 

By contrast, a feeling of sinfulness, which developed from the older 
idea of ritual purity, is incompatible with the feudal lord's sense g£ 
dignity, andfor the peasant, "sin" is even today difficult to understand. 
These agricultural strata do not seek redemption, in fact, they do not 
quite know from what they should be redeemed. Their gods are strong 
beings, whose passions resemble those of man; they may be brave or 
treacherous, friendly or hostile to one another and to man; at any rate, 
like man they are completely amoral, amenable to bribery through 
sacrifices and subject to magic influences, which may make the human 
manipulator even stronger than they are. At this stage there are as yet 
no incentives to construe a theodicy or to pursue any type of ethical 
speculation about the cosmic order. In a directly utilitarian fashion, 
the priesthood and strict adherence to ritual prescriptions serve as means 
of magical control over nature, especially as a defense against demons 
whose ill will might bring bad weather, attacks by predatory animals 
and insects, diseases and animal epidemics. The internalization and 
rationalization of religiosity usually develops parallel to a certain degree 
of handicraft production, most of the time to that of the urban trades. 
This involves the projection of ethical criteria and commandments, and 
the transfiguration of gods into ethical powers which will reward good 
and punish evil; now the gods themselves must conform to moral ex- 
pectations and the individual's sense of sinfulness and his desire for 
redemption can emerge. It is impossible to reduce this parallel develop- 
ment to an unambiguous relation of cause and effect: Religious ration- 
ahzation has its own dynamics, which economic conditions merely 
channel; above all, it is linked to the emergence of priesdy education. 
Although we do not know much about Mahdism, it appears that it 
lacked any economic basis. It is very doubtful that it was an hierocratic 
outgrowth of old Islamic religion, the work of the founder of a sect 
who was driven across the border into a remote region. However, it 
seems certain that the rational-moralistic evolution of the religion of 
Yahwe was influenced by the great centers of civilization; yet prophecy 
and, even more so, the older moralism arose when the city and the 
trades were still undeveloped, at any rate in comparison with con- 
temporary Mesopotamia and Egypt. However, the hierocracy was estab- 
lished by the city priests of Jerusalem in their struggle with the country- 
side, and the elaboration of the Law and its imposition were the work 
of the exiles living in the city of Babylon. The ancient Mediterranean 
polis, on the other hand, did not rationalize religion, in part because 
of Homer's influence as the accepted means of literary education, but 



I I 8 O POLITICAL AND HIEROCRATIC DOMINATION [ Ch. XV 

primarily because of the absence of a priesthood that was hierocratically 
organized and clerically educated. 

In spite of all these differences, it is quite clear that there is an 
elective affinity between priesthood and urban petty-bourgeois strata. 
Above all, the opponents are typically the same in Antiquity and the 
Middle Ages — the great feudal families; in their hands was both the 
political power and the usurious loan business. Fur this reason bourgeois 
strata have often tended to support every move of an hierocracy in the 
direction of autonomy and rationalization. Thus, the urban population 
in Sumeria, Babylonia, Phoenicia and Jerusalem supported the hiero- 
cratic claims, and the Pharisees r ) ».., Puritans) drew iheir following 
against the Sadducaic patricians from the cities, just as all emotional 
cults of Mediterranean Antiquity had an urban base. The early Chris- 
tian church was made up of petty-bourgeois congregations; the papal 
autonomy claims, just as the medieval Puritan sec*; found their strong- 
est support in the cities; certain trades produceu heretic movements as 
well as religious orders, such as the Humiliati — both tendencies border 
on one another. In the long run, ascetic Protestantism in the broadest 
sense of the term (Calvinist and Bapdst Puritans, Mennonites, Metho- 
dists and Pietists) drew the core of its following from the middle and 
lower ranks of the bourgeoisie, just as the unshakable religious law- 
consciousness of Judaism began only with its urban entrenchment and 
depended on it. 

This does not mean that religious movements have usually been 
class movements. Nothing is as wrong as the idea that Christianity, 
which for compelling political and cultural reasons had to be unaccept- 
able to the ruling strata of Antiquity, was a "proletarian" movement. 
Buddhism was founded by a prince and imported into Japan with the 
active support of the nobility. Luther addressed the "Christian nobil- 
ity" (i.e., the highest nobles, the princes). At the height of their great 
struggles, the French Huguenots and Scottish Calvinists were led by 
nobles, but the Puritan Revolution was successful because of the cavalry 
provided by the rural gentry. These examples show that, by and large, 
religious cleavage cuts vertically through all strata. This remains true 
for the period of enthusiastic devotion to transcendental interests, a 
dtvotion that almost always has an eschatological orientation. 

In the long run, however, an elective affinity between spiritually 
prescribed conduct and the socially conditioned way of life of status 
groups and classes asserts itself as the eschatological expectations recede 
and the new religious beliefs are routinized. Horizontal stratification 
increasingly displaces vertical divisions. Thus, the Huguenot and Scot- 
tish nobility later stopped fighting for Calvinism, and everywhere the 



9 ] Social Preconditions of Hiewcracy & Religiosity i i 8 i 

further development of ascetic Protestantism became the concern of 
the bourgeois middle classes. We cannot pursue these problems in 
detail, but we can at least consider it certain that the evolution of hiero- 
cracy into a rational means of domination, and the related rational- 
ethical development of religious thought, usually finds strong support 
in the bourgeois classes, especially their lower strata, despite the con- 
flicts between hierocracy and bourgeoisie with which we must deal in 
a different context [sec. 10]. 

In periods of manorial-feudal domination this rational (bureau- 
cratic) apparatus is always threatened. The high-ranking functionaries 
of the church (the bishops) become great' vassals by virtue of land and 
political rights granted to them, and the ordinary priests revive 
benefices from their manorial lord and thus become part of the patri- 
monial officialdom. Only in cities and in a monetary economy can the 
priests be maintained from church wealth administered by the bishop 
and donated by the believers. In a manorial natural economy the inde- 
pendence of the clerical apparatus can be secured only through monastic 
communal living; that means, the monks, combining a manorial setup 
with living in a completely, or almost, communist fashion, become the 
bodyguard of hierocracy. 'Monastic communal living made possible the 
extraordinary importance of the Irish and Benedictine monks and of the 
quasi-monastic chapters (which followed Chrodegang's rule) for the 
development of the Occidental church and of civilization in general; 
the same was true of the Lamaist monastic church in Tibet and Bud- 
dhist monasticism in feudal japan. 



10. The Impact of Hierocracy on Economic Development 

A.* THE ACCUMULATION OF CHURCH LANDS 
AND SECULAR OPPOSITION 

Beyond the' few remarks we have made here, it is difficult to general- 
ize about the economic preconditions of hierocracy. They are, of course, 
always a co-determining factor, but it is easier to state the importance 
which hierocratic domination has had for economic development. 

To begin with, the economic imperatives of hierocracy result in 
typical clashes with the economic interests of certain classes. The 
church attempts to secure its economic autonomy primarily through sub- 
stantial endowments, preferably of real estate. Since the church is inter- 
ested not in quick profit-making but in permanent, safe revenues and 
minimal friction with its retainers, it generally pursues a conservation 



I I 8 2 POLITICAL AND HIEROCBATIC DOMINATION [ Ch. XV 

policy toward the peasants; in this it resembles the monarch as aj^inst 
the private manorial lords. Just as in modern history the large ecclesiastic 
holdings did not participate significantly in the practice of enlarging 
manorial estates at the expense of peasant land, so in Antiquity the 
emphyteutic and other clerical landholding rights resembling hereditary 
leases originated probably on temple land. Considering the rational 
character of asceticism, it is natural that in their own farming operations 
the monastic manors, especially those of the Cistercians, were among 
the hrst rational enterprises. 

However, the increase of inalienable real estate (mortmain'), which 
limits the supply of land, arouses the resistance of interested groups, 
first of all the secular nobility which views this as a threat to the avail- 
ability of land for its descendants. The great secularization by Charles 
Martel was an act of church robbery in favor of the nobility; in the 
course of the Middle Ages the nobles, in their roles as vassals or bailiffs 
(y<igte) of ecclesiastic estates, persistently attempted to gain control 
of church lands; and the so-called amortization laws [i.e., laws against 
alienation in mortmain], enacted by modern states with a view toward 
limiting the increase of church-owned real estate, were initiated by 
nobles. It is well-known that eventually bourgeois land speculation be- 
came interested in church lands, and that the great confiscation during 
the French Revolution benefitted primarily the bourgeoisie. Finally, the 
royal power opposed the expansion of church and monastic lands partly 
because of its competition with the hierocracy and partly for mercantilist 
reasons, insofar as it was not guided by the same interests as the nobility; 
only in the early Middle Ages had the king viewed the enlargement 
of church land as a means of consolidating his power, as long as rhe 
ecclesiastic dignitaries were in fact his most reliable vassals because ihey 
were not interested in hereditary succession. Opposition by the political 
power was most severe and most successful in China, where the an- 
nihilation of monasticism and the confiscation of its substantial land- 
holdings was explained with the argument that the monks detiacted 
the people from work and directed them to idle and economically 
sterile contemplation. 

Where the hierocratic accumulation of land proceeds freely, it may 
lead to a far-reaching elimination of land from the open market. Espe- 
cially in the Orient during Byzantine and Islamic times, this accumula- 
tion often served the purpose of lending sacred protection to private 
landholdings. To refer to an earlier example [chapter XIII: 10], a typical 
Byzantine monastic endowment of the nth or 12th century may be 
established in the following way: A founder provides a large tract of 
land — in Constantinople, building land that will increase in value — 



io ] The Imfact of Hierocracy on Economic Development i i 8 3 

for a monastery; from this a fixed number of monks receive prebends, 
which sometimes may even be used outside the monastery; in return 
the monks must support, in a stipulated fashion, a fixed number of poor 
people and fulfill certain religious duties. However, for a certain time, 
not only the secular administration of the monastery is reserved to the 
founders family, but also — and this is far more important — the sur- 
plus of the increasing revenues over the fixed expenditures. Thus, in 
reality an entailed estate (fidei commissttm~) has been created, but as 
church property it can no longer be seized by the secular powers with- 
out committing sacrilege. It appears that many Islamic wakf holdings, 
which through their size alone have played a very considerable role 
in all Oriental countries, came into being for similar reasons. 

In the Occident, too, monasteries and other foundations were al- 
ways exposed to aristocratic attempts at utilizing them for the main- 
tenance of the younger nobles, and almost all of the numerous monastic 
reforms aimed at eliminating this aristocratic monopolization and aliena- 
tion from hierocratic purposes. 



B. HIEROCRATIC AND BOURGEOIS TRADING AND CRAFT INTERESTS 

Hierocracy clashes directly with "bourgeois" interests through mo- 
nastic trade and craft activities. Particularly in a natural economy, 
temples and cloisters accumulate great stocks of precious metals, in ad- 
dition to agricultural products of many kinds. In Egypt and Mesopo- 
tamia the grain supplies of the temples seem to have been used to 
counteract rising prices, similar to the royal magazines. If the natural 
economy is clearly predominant, precious metals will be hoarded (as, 
for instance, in the Russian monasteries). But the sacred peace of the 
temples and cloisters, protected by the fear of Divine wrath, has always 
been the immune basis of international and ^interlocal trading; its tax 
proceeds, in addition to the gifts of the believers, filled the treasury. 
The much-talked-about institution of temple prostitution was apparently 
related to the needs of the commercial travelers (who have remained 
the largest contingent of visitors to the brothels). Everywhere, and on 
the largest scale in the Orient, did temples and cloisters participate in 
financial transactions, accept deposits, grant loans and diverse advances 
in kind or money against interest. They also seem to have acted as 
intermediaries of commercial transactions. The Hellenic temples func- 
tioned partly as a central bank (like the treasury of Athena — this had 
the advantage that in the democratic period at least some restraints were 
imposed on the raiding of the state treasury), and partly as depository 
and savings banks. 5 The Delphic Apollo provides a typical example for 



I I 8 4 POLITICAL AND HIEROCRATIC DOMINATION [ Ck. XV 

the emancipation of slaves: The temple bought the slave's freedom from 
his master, of course, not with Apollo's means but with the deposits of 
the slave, who had no property rights in relation to his master, but 
whose savings were safe from seizure in the temple. The ancient temples 
and the medieval monasteries were the most trustworthy and safest 
depositories. The popularity of the church as debitor included in the 
Middle Ages — as Schulte has correcdy emphasized — the bishop him- 
self, since the sanction of excommunication threatened him no less 
than cashiering nowadays menaces the indebted lieutenant. 5 ' Occasion- 
ally the lay merchants viewed these monetary transactions of the temples 
and cloisters as a competition. But it is also true that the extraordinary 
financial power of the church, especially of the pope and his tax- 
collectors, provided private business with the opportunity to. make tre- 
mendous and often risk-free profits. 

Matters were quite different especially with regard to the monastic 
crafts. Even though the older Benedictine rule seems to have viewed 
physical work primarily as a hygienic compensation for spiritual exer- 
cises, the consistent ascetic use of physical work and the disposition 
over a large number of lay brothers and serfs often created a major 
competition for the secular crafts. The cloister crafts were necessarily in 
a superior position since they could rely on man-power that was celibate 
and ascetic and considered work as a vocation (fieruf) for the sake of 
salvation; they also had a rational division of labor and benefitted from 
connections and patronage that guaranteed steady sales. Therefore, they 
were one of fhe substantial economic gravamina of the petty-bourgeois 
strata just before the Reformation, as are prison work and consumer 
cooperatives today. The secularization of the Reformation, and even 
more so of the French Revolution, later decimated the clerical 
enterprises. 

In comparison with private capitalism, the economic operations of 
ecclesiastic institutions, whether they are undertaken direcdy, through 
agents, or in the form of participation, have lost much of their former 
importance. At present we cannot estimate their significance for church 
finance, since usually such participations are carefully masked. Today 
the monasteries produce only some specialties. The Curia has reportedly 
lost much money through participation in building-land speculation (in 
Rome), and doubdessly even more through abortive bank foundations 
(in Bordeaux). Even today churches and cloisters prefer to acquire real 
estate as soon as the accumulation in mortmain is permitted. However, 
most of the funds are raised not through industrial and commercial ac- 
tivities but through enterprises such as Lourdes, through patronage, 



io } The Impact of Hierocracy on Economic Qevefopment i i 8 5 

endowments and mass contributions, insofar as they are not provided 
by state budgets, state donations, taxes and perquisites. 



G. HIEKOCRATIC AND CHARISMATIC ETHICS VBRFJJS 
NON-ETHICAL CAPITALISM 

Through its structure of domination and its peculiar ethical regula- 
tion of conduct hierocracy affects the economic sphere much more than 
through its own economic activities. It is true that the great ecclesiastic 
religions differ greatly, especially during their early stages, in their struc- 
ture of domination and their "basic ethics, as it is expressed in rules of 
conduct. Thus, Islam developed out of a charismatic community of 
warriors led by the militant prophet and his successors; it accepted the 
commandment of the forcible subjection of the infidels, glorified hero- 
ism, and promised sensual pleasures in the here and the hereafter to 
the fighter for the true faith. Conversely, Buddhism grew out of a com- 
munity of sages and ascetics who sought individual salvation not only 
from the sinful social order and individual sin but from life itself. 
Judaism developed out of an hierocratic and bourgeois community that 
was led by prophets, priests and, eventually, theologically trained intel- 
lectuals; it completely disregarded the hereafter, and strove for the re- 
establishment of its secular nation state, and also for bourgeois well-being 
through conformity with a casuist law. Finally, Christianity grew out 
of the community of participants in the mystical Christ cult of the Lord's 
Supper; initially, this community was filled with eschatological hopes 
for a divine universal kingdom, rejected all force and was indifferent 
to the social order, whose end appeared imminent; it was guided charis- 
matically by prophets and hierocratically by officials. But these very dif- 
ferent beginnings, which were bound to result in different attitudes 
toward the economic order, and the equally different historical fate of 
these religions did not prevent the hierocracies from exerting rather 
-similar influences on social and economic life. These influences cor- 
responded to the universally similar preconditions of hierocracy, which 
assert themselves once the charismatic heroic age of a religion has 
passed and the adaptation to everyday life has been made. However, 
we will see that there were certain important exceptions. 

Hierocracy is the most important typifying power in existence. The 
tus divinum, the Islamic skari'ah, the Toran of the Jews are inviolable. 
On the other hand, in those areas not regulated by the ius divinum 
hierocracy is the least rationally predictable power: Charismatic justice 
in the form of the oracle, ordeal, fetwa of a mufti or judicature of an 
Islamic ecclesiastic court, is irrational and at best decides a given case 



I I 8 6 POLITICAL AND HIEROCKATXC DOMINATION [ Ch, XV 

according to considerations of equity. These formal elements of adjudica- 
tion, which we have mentioned several times before, had an anti- 
capitalist impact, but in addition hierocracy necessarily felt a deep 
antipathy toward the non-traditional power of capitalism, even though it 
occasionally collaborated with it. This antipathy is rooted in the natural 
community of interest with all traditionally sanctified authorities whose 
monopoly appears to be threatened by the domination of capital. 

However, another reason for this antipathy is inherent in capitalism. 
It is true that only Occidental hierocracy, which was more rationalized 
than all the others, developed a rational trial procedure — in its own 
interest, to be sure — , in addition to a .rational canon law; moreover, it 
threw its full weight to the side of the reception of a rational law: 
Roman law. Nevertheless, the intervention of the ecclesiastic ^courts 
has been barely tolerated, evaded or openly rejected by the capitalist 
bourgeoisie. [The reasons for this mutual antipathy must be sought in 
the fact that] the domination of capital is the only one which cannot 
he ethically regulated, because of its impersonal character. Most of the 
rime this domination appears in such an indirect form that one cannot 
identify any concrete master and hence cannot make any ethical de- 
mands upon him. It is possible to advance ethical postulates and to 
attempt the imposition of substantive norms with regard to household 
head and servant, master and apprentice, manorial lord and dependents 
or officials, master and slave, or patriarchal ruler and subject, since their 
relationship is personal and since the expected services result therefrom. 
Within wide limits, personal, flexible interests are operative here, and 
purely personal intent and action can decisively change the relationship 
and the condition of the person involved. But for the director of a joint- 
stock company, who is obliged to represent the interests of the stock- 
holders as the masters proper, it is very difficult to relate in this manner 
to the factory workers; it is even more difficult for the director of the 
bank that finances the joint-stock company, or for the mortgage holder 
in relation to the owner of property on which the bank granted a loan. 
Decisive are the need for competitive survival and the conditions of the 
labor, money and commodity markets; hence matter-of-fact considera- 
tions that are simply non-ethical determine individual behavior and 
interpose impersonal forces between the persons involved. From an 
ethical viewpoint, this "masterless slavery" to which capitalism subjects 
the worker or the mortgagee is questionable only as an institution. 
However, in principle, the behavior of any individual cannot be so 
questioned, since it is prescribed in all relevant respects by objective 
situations. The penalty for non-compliance is extinction, and this would 



io ] The Impact of Hierocracy on Economic Development i i 8 7 

not be helpful in any way. More important is that such economic 
behavior has the quality of a service toward an impersonal purpose- 
In all ethically rationalized religions, these conditions conflict peren- 
nially with the most elementary social postulates of the hierocracy. 
Every ethically oriented religiosity begins with eschatological hopes and 
hence rejects the world. These beginnings are directly anti-economic, 
also in the sense that they lack the notion of a specific dignity of work- 
However, insofar as the adherents of a religious community cannot live 
from patronage or begging, or do not live under warrior communism, 
as in the case of militant Islam, exemplary members live from their own 
work — Paulus as well as Saint Aegidius. This was recommended by 
the early Christian church as well as by Saint Francis, but nor because 
work as such was esteemed. It is simply a fairy tale that work received 
any greater dignity in the New Testament. The exhortation "to abide 
in the same calling" [Corinth. 7:20] expresses complete eschatological 
indifference, just as the prescription "to render unto Caesar the things 
that are Caesar's" [Luke 20:25]. This is not, as it is often alleged today, 
an inculcation of duties toward the state, hut the expression of absolute 
indifference toward anything that happens in the political sphere — this 
exactly constitutes the difference from the Judaic parties. Work attained 
dignity much later, beginning with the monastic orders who used it as 
an ascetic means. During the charismatic period of a religion, the per- 
fect disciple must also reject landed property, and the mass of believers 
is expected to he indifferent toward it. An expression of this indifference 
is that attenuated form of the charismatic communism of love which 
apparently existed in the early Christian community of Jerusalem, 
where the members of the community owned property "as if they 
did not own it." SucK unlimited, unrationalized sharing with needy 
Brothers, which forced the missionaries, especially Paulus, to collect 
alms abroad for the anti-economic central community, is probably what 
- lies behind that much-discussed tradition, not any allegedly "socialist" 
organization or communist "collective ownership." Once the eschatologi- 
cal expectations fade, charismatic communism in all its forms declines 
and retreats into monastic circles, where it becomes the special concern 
of the exemplary followers of God (Gottesgefolgchaft). But even 
there we always find the tendency toward prebendalization. It becomes 
necessary to advise against abandoning one's vocation and to warn 
against missionary parasites — Paulus' famous saying: "Whoever does 
not work shall not eat" [2 Thess. 3: 10] is addressed only to them. The 
maintenance of the indigent and unemployed brothers becomes the task 
of a regular officer, the deacon. Some ecclesiastic revenues are set aside 
for them (in Islam as well as Christianity). For the rest, poor relief 



I I 8 8 POLITICAL AND HIEROCRATIC DOMINATION [ Ch. XV 

becomes the concern of the monks. As a remnant of the charismatic 

communism of love, Islam, Buddhism and Christianity equally consider 
the giving of alms as pleasing to God, despite their gready different 
origins. 

However, the churches always retain some distinctive, more or less 
articulate attitude toward the economic order. It is true that they can 
no longer denounce it as a Satanic creation, since they must use it and 
ally themselves with it. Just like the state, the economic order appears 
either as a concession to the world's sinfulness, which God permitted 
to arise and hence must be accepted as inevitable, or even as a divinely 
ordained means for the subduing of sin, and then it is important to 
imbue the hearers of an economic order with an ethic that will make 
them use their power for this purpose. However, this attempt meets 
difficulties in all capitalist relationships, even in their most primitive 
forms. For cantos, brotherhood, and ethically imbued personal relations 
between master and servant remain the foundation of every ecclesiastic 
ethic, from Islam and Judaism to Buddhism and Christianity; they 
are. the residues of the old ethos of love of the charismatic brotherhood. 
In the economic realm the rise of capitalism makes these ideas just as 
meaningless as the implicit pacifist ideals of eady Christianity have always 
been in the political realm in which all domination ultimately rests on 
force. For under capitalism all patriarchal relationships are divested of 
their genuine character and become impersonal; in principles, a person 
can practice caritas and brotherhood only outside his vocational life. 

D. THE BAN ON USURY, THE JUST PRICE AND THE 
DOWNGRADING OF SECULAR VOCATIONAL ETHICS 8 

All churches have viewed with deep distrust the rise of this alien, 
impersonal power, and most of them took a stand against it. We cannot 
follow here in detail the history of the two major moral demands: the 
injunction against usury and the commandment to demand and give 
the "just price" Qustum fretium) [cf. su-pra, ch. Vl-.xivq] for com- 
modities and labor. Both belong together and originate in the primeval 
ethic of the neighborhood, which knows barter only as the exchange of 
occasional surpluses or of products of one's own labor, work for others 
only as neighborly help, and loans only as help in need. Among 
"brothers" one does not haggle for the price but asks merely for the 
restitution of one's own cost (including the "living wage"), if an ex- 
change takes place at all; mutual labor assistance is either provided 
without compensation or in return for a meal, and no gain, but possibly 
reciprocity, is expected from the loan cf dispensable goods. Interest is 
jfimanded by the ruler; profit by the tribal alien, not by a brother. 



io ] The Impact of Hierocracy on Economic Development i i 8 9 

The debtor is (actually or potentially) a serf or — a potion — a "liar." 1 
Religious brotherliness demands the transfer of this primitive neighbor- 
hood ethic to economic relationships among members of the same reli- 
gious group (for the commandment is originally limited to them, espe- 
cially in Deuteronomy and still in early Christianity). Just as early 
trade is exclusively exchange of goods between different tribes, and 
the trader an alien, so in religious ethics he remains burdened with the 
odium of the non-ethical quality of his vocation: Deo placere non 
potest However, despite these obvious connections, the injunctions 
against usury should not be deduced in too materialist a manner as, 
"reflections" of a specific situation — the predominance of consumer 
credit. Interest-free producer's credit is known to Oriental law in the 
earliest extant contracts (as loan of seed-corn for a share in the yield). 

The Christian absolute ban on usury derives, in the formulation of 
the Vulgate: mutuum date nihil inde sperantes, perhaps from the trans- 
lation of an incorrect reading (.nyStv awtXrifcvTt? instead of j«?S*'m 
airt\ir't£ov™, according to A. Merx). 7 * Historically, it applied at first only 
to the clergy, and even there only in relation to brothers, not aliens. In 
the early Middle Ages, when the natural economy and consumers credit 
predominated, the ban was disregarded time and again by the clergy 
itself. However, it was taken seriously almost at the same moment when 
capitalist production credit (more correcdy, commercial credit) became 
important, at first in the overseas trade. The ban was not a product, or 
a reflection, of economic situations, but rather the result of the growing 
internal strength and autonomy of the hierocracy, which now began to 
apply its ethics to the economic institutions; the efflorescence of theology 
provided a comprehensive casuistry for that purpose. The effect of the 
prohibition of usury cannot be described here, and at any rate, it can- 
not easily be summarized. For commerce the ban was tolerable at first 
because in the most important cases credit was taken up only against 
shares in profit and loss, in view of the great risks involved; it took 
a long time before fixed, at times publicly regulated, percentage rates 
became customary (as in the case of the dare ad proficfuum maris in 
Pisa), At any rate, the formation of partnerships was the customary form 
for the procuring of production capital, and the purchase of annuities 
or perpetual rent (fientenfeawf) for the providing of mortgage credit. 
Nevertheless, the prohibition of usury strongly affected the legal forms 
of doing business and often greatly impeded economic transactions. The 
merchants protected themselves through blacklists against appeal to 
the ecclesiastic court (as the [German] Exchanges do nowadays against 
the invocation of the Differenzeinwand type of protest [which voids an 
illegal speculative contract by denouncing it to the courts]); some guilds 
(for example, the [Florentine] Arte di Caltmala) periodically bought 



•? 



\. 



I 190 POLITICAL ANO HIEROCRAnC DOMINATION [ Ch. XV 

a general absolution for the inevitable usuraria yravitas; at the end of 
his life, the individual merchant paid "conscience money," or stipulated 
it in his will, and the ingenuity of the lawyers exhausted itself in the 
invention of legal forms which circumvented the prohibition of usury 
in the capitalist interest. The church, in turn, established the monies 
pietatis ["mounts of piety": pawn shops] for emergency loans to the 
petty bourgeoisie. 

However, the ban on usury was nowhere really successful in curb- 
ing the development of capitalism; increasingly it became a mere impedi- 
ment of commercial life. Calvinism produced the first theoretical justifi- 
cation of interest, by Salmasius [de usuris, 1638]. In competition with 
Calvinism, the Jesuit ethic made all conceivable concessions before the 
church surrendered officially in the 18th and, completely, in the 19th 
century, despite the Vulgate passage and the ex cathedra decisions of 
the popes. This surrender occurred on the occasion of inquiries about 
the admissibility of subscribing to interest-bearing loans of the city of 
Verona: the Holy Office advised the patres confessores no longer to ask 
the communicants about this violation and to grant absolution, pro- 
vided it appeared certain that the communicant would comply with a 
possible future decision of the Holy See to revert to the prohibition. 
With regard to the theory of the iustum pretium [teaching of the "just 
price"], late medieval doctrine had already made great concessions. 

In general, it appears scarcely admissible to say that the church had 
an economic program. The church did not derisively influence basic 
institutions. In Antiquity as well as the Middle Ages, for example, it had 
no major share in the waning of such a fundamental institution as 
slavery. Insofar as it took a stand in modern history, it lagged behind 
the economic facts and later behind the protest of the Enlightenment. 
And insofar as religious influences were important, they emanated from 
the sects, especially the Quakers, although in practice even they often 
ignored their hostility to slavery. 8 In all other respects, too, the church 
endorsed, if it intervened at all, the traditionalist and "minimum sub- 
sistence" measures of the cities and princes. Nevertheless, the influence 
of the medieval church was not insignificant but extraordinarily great. 
But it did not make or unmake institutions as much as it molded atti- 
tudes, and even then its influence was essentially negative. Against the 
forces of capitalism, the church has reinforced all personal patriarchal 
authority and all peasant and petty-bourgeois traditionalist interests — 
fully in accordance with the rationale of all hierocracy. The mentality 
furthered by the church is non-capitalist, and pardy anti-capitalist. The 
church does not condemn the acquisitive drive (Erwerhstxieh — a con- 
cept, hy the way, which is wholly imprecise and better not used at 



ro ] The Impact of Hierocracy on Economic Development 1191 

all); instead, the church condones it, as it does all worldly' things, in 
those who do not have the charisma necessary (or adhering to the 
consilia evangelica. However, the church cannot bridge the gap between 
its highest ethical ideals and a rational, methodical orientation toward 
the capitalist enterprise which treats profit as the ultimate goal of a 
vocation and — this, is the main point — regards it as a measure of personal 
virtue. The church outbids secular morality in marriage, state, vocation 
and business through the monastic ethic as the higher principle, and 
thus reduces everyday life, especially in the economic sphere, to an 
ethically inferior level. Only for the monk did the church create a 
methodical ascetic way of life oriented toward a unified goal. This applies 
to the church of the Occident just as much as to Buddhism, which irt 
its beginnings was a religion purely for monks. The church looks at the 
layman's doings with a certain tolerance if he bows to its authority and, 
in Buddhism, presents it with gifts. Most importantly, the church lets 
the layman periodically relieve himself of his sins in the aural con- 
fession, the clergy's most impressive power instrument, which only in 
the Occidental Christian church was developed with full consistency. 
But through the confession, and by stressing to the layman its own 
role as a charismatic institution of salvation, the church inevitably 
weakens the believers motivation for living his worldly and occupational 
life methodically and exclusively on his own responsibility: The highest 
religious ideals could not be followed in this manner anyway, for they 
are not of this world. 

It is true that, all in all, the conduct of the medieval Catholic in 
his secular vocation was much less bound by tradition and law than that 
of the Jew about whom we will have to say more below [sec. 13], and 
in some respects even that of the Mohammedan or Buddhist. Yet what- 
ever seemed to be gained thereby for capitalist development was lost 
again because of die lack of incentives for the methodical fulfillment of 
a secular vocation, especially in business. There was no psychic premium 
on work in one's secular vocation. Deo pfacere -non potest remained, in 
spite of all attenuation, the last word for the believer with regard to the 
idea that his economic conduct should serve a rational, impersonal, 
profit-oriented enterprise. Thus persists the dualism between the "world" 
and ascetic ideals that can be realized only by leaving it. Buddhism is 
even less familiar with a secular vocational ethic, since it is a monastic 
religion and also because of the whole trend of its idea of salvation. In 
Islam, the naive exaltation of worldly goods and enjoyment, which is 
a remnant of its origin as a warrior religion, is not at all conducive to 
a vocational ethic in our sense; not even the rudiments of such a de- 
velopment can be found. The caesaropapist Eastern church never arrived 
at a clear position. 



T 9 2 POLITICAL AND HIEROCRATIC DOMINATION [ Ch. XV 

- HIEROCRATIC RATIONALIZATION AND THE UNIQUENESS OF 
OCCIDENTAL CULTURE 

The more favorable constellation for capitalist development that 
Occidental Catholicism offered (in comparison with these Oriental reli- 
gions) was primarily due to the rationalization of hierocratic domina- 
tion undertaken in continuation of ancient Roman traditions. This refers 
c;sj>ecially to the manner in which science and jurisprudence were 
developed. The Oriental religions preserved the unrationalized charis- 
matic character of religiosity more than did the Occidental church; in 
port at least, this was a consequence of the purely historical fact that 
iiOt they but the secular powers, whose paths they crossed, were the 
carriers of spiritual and social culture, and that they always remained- 
subject to caesaropapist cdntrol, Buddhism excepted. The Eastern 
church lacks an hierocratic apparatus with a monocratic head. Since the 
catastrophe of Patriarch Nikon and the abolition of the patriarchal 
petition during the reign of Peter the Great, the Oberprokuror has been 
^he dominant figure of the Russian Holy Synod, a purely bureaucratic 
. organization of state-appointed clerical dignitaries. The Byzantine patri- 
archs were never capable of claiming a monocratic position. The Sheik 
til-Islam, theoretically the superior ofc the caliph, a layman, was yet 
a; pointed by him; moreover, just like the Byzantine basileus, the caliph 
.had religious authority of his own, even though it was unstable. Bud- 
ffrism has a monocratic head only in Lamaism, but he is a Chinese 
v;.ssal and, moreover, "insulted" as an incarnation in the sense discussed 
ii'oove [ch. XV: i and ch. XIV:«:2], Hence, there is no infallible doc- 
trinal authority: In Islam, Buddhism and the Eastern church the sole 
source of new knowledge is the consensus ecclesiae; in the two former 
cases this brought about considerable flexibility and growth potential, 
but also gready impeded the rise of rational philosophical thought evolv- 
ing out of theology. Finally, there was no rational judicial system of 
the kind established by the Occidental ecclesiastic apparatus. The church 
created a trial procedure — inquisition — in order to obtain evidence in 
a rational manner, primarily for its own purposes; this, in turn, strongly 
affected the development of secular justice. There was also no con- 
tinuous lawmaking on the basis of rational jurisprudence, such as the 
Occidental church developed on the model of Roman law, or encouraged 
through its example. 

All in all, the specific roots of Occidental culture must be sought 
in the tension and peculiar balance, on the one hand, between office 
charisma and monasticism, and on the other between the contractual 
character of the feudal state and the autonomous, bureaucratic hiero- 



io ] The Impact of Hierocracy on Economic Development i i ^3 

cracy. At least from a sociological viewpoint, the Occidental Middle Ages 
were much less of a ■unified culture (Emheitskultur*) than the Egyptian, 
Tibetan and Jewish cultures after the hierocrac/s victory, or than 
China since the triumph of Confucianism, Japan — if we disregard 
Buddhism — since the victory of feudalism, Russia since the rise of 
caesaropapjsm and state bureaucracy, and Islam since the definite estab- 
lishment of the caliphate and the prebendalization of domination; finally, 
even Hellenic and Roman culture were more unified than medieval 
Europe. This generalization appears to he largely correct even though 
all these cultures were unified in a different sense. The alliance between 
political and hierocratic power reached two high points in the Occident: 
The first time in the Carolingian empire and during certain periods in 
which the Holy Roman Empire attained the height of its power; the 
second time in the few cases of Calvinist theocracy and, in strongly 
caesaropapist form, in the states of the Lutheran and Anglican Reforma- 
tion and in the great unified states of the Counter-Reformation: Spain 
and Bossuet's France. But even during these periods of co-operation 
Occidental hierocracy lived in a state of tension with the political power 
and constituted its major restraint; this contrasted with the purely 
caesaropapist or purely theocratic structures of Antiquity and the Orient. 
In the Occident authority was set against authority, legitimacy against 
legitimacy, one office charisma against the other, yet in the minds of 
rulers and ruled the ideal remained the unification of both politico' 
and hierocratic power. The individual, however, did*not have any legiti- 
mate sphere of his own against these two types of legitimate domination, 
with the exception of the independent family charisma in the clan s,tate 
or the contractually guaranteed, direct or derived autonomy of the va^al. 
The extent to which the state of Antiquity, hierocracy, the patrimoT'i^ 1 
state or caesaropapism assert their power over the individual has already 
been discussed in passing or remains to be treated; at any rate, this is a 
purely factual question, the answer to which depends primarily upon 
the survival interests of the ruling group and its form of organization. 
The point is that a legitimate limitation of authority in favor of the in- 
dividual as such does not exist. 



i z . Hierocracy in the Age of Capitalism and of 
Bourgeois Democracy 

The rise of modern bourgeois democracy and of capitalism has 
greatly changed the preconditions of hierocratic domination. At first 
sight it appears that hierocracy did not benefit from this development. 



I I 9 4 POLITICAL AND HSER0CRATIC DOMINATION [ Ck. XV 

Capitalism advanced triumphantly in spite of the protest and frequently 
the. direct resistance of the clergy. The grande bourgeoisie increasingly 
outgrew the histebcal connections between bourgeoisie and hierocracy. 
The carriers of n^pc gifts of grace and, in particular, those hierocratic 
claims that were most authoritarian and backed the traditional authorities, 
suffered from their own attempts to regulate social conduct and from 
their own objections to modem science, the technical basis of capitalism; 
they were also adversely affected by the growing rationalism that made 
social life less opaque and more amenable to reconstruction. It would be 
wrong to assume that anti-ethical or non-ethical, libertarian tendencies 
of the rising bourgeois strata played a major role in this process; after 
all, by means of the confessional, the church went far to compromise 
with the kind of ethical laxity that has always been characteristic of 
entrenched feudal strata. Rather, it is the rigoristic ethics of bourgeois 
rationalism that is ultimately bound to clash with the hierocratic claims, 
for it endangers the ecclesiastic Power of the Keys and the value of dis- 
pensing grace and absolution. Therefore, the hierocracy has always 
treated such rigoristic ethics as a stepping stone to heresy if it did not 
conform to clerically controlled asceticism. 

As capitalism and the bourgeoisie advanced, all traditionalist strata 
sought the protection of the church: the petty-bourgeoisie, the nobility, 
and even the monarchy, after the age of alliance between securely estab- 
lished princes and capitalism had passed and the political aspirations of 
the bourgeoisie had become dangerous. The bourgeoisie has done the 
same, wherever its position has been endangered by the assault of the 
working class. But the church, too, accommodates itself to established 
capitalism; this can easily be demonstrated by looking at the develop- 
ment of the German Center Party from Bishop Ketteler [1811-1877] 
up to the present. It is true that for a time the hierocracy put economical 
eschatological hopes into "Christian," that means, hierocratically domi- 
nated "socialism," by which diverse, mostly petty-bourgeois Utopias were 
understood; it is also true that the hierocracy helped undermine the 
belief in the bourgeois economic system, but the typical and almost in- 
evitable hostility of the labor movement to authority changed its attitude. 
The modern proletarian is not a petty-bourgeois. He is threatened not 
by demons and natural forces that must be magically checked, but by 
social conditions that can be rationally understood. The economically 
srrongest strata of the working class often reject any guidance by the 
hierocracy or accept it merely as a gratuitous interest representation — 
provided the hierocracy actually represents their interest. The more cer- 
tain the indestructibility of the capitalist order becomes, the more do 
hierocratic interests require compromises with the new authorities. In 



n ] -Hierocraey in the Age of Capitalism & Democracy i 195 

accordance with its natural ethical interests, hierocraey endeavors to 
transform the capitalist dependency of the working class into a personal 
authoritarian subordination amenable to caritas; in particular, the hiero- 
craey recommends those "welfare institutions" which restrict the workers' 
anti-authoritarian freedom of mobility; it also furthers as much as possible 
the home industry, which seemingly favors family bonds and patriarchal 
work relations, as against the concentration of the workers in factories, 
which promotes anti-authoritarian class consciousness. With deep dis- 
trust the" hierocraey views an anti-authoritarian weapon such as the 
strike and all organizations which facilitate it; it opposes these most 
when they threaten to result in interdenominational solidarity, 

. The conditions of hierocratic rule are also transformed by democracy 
itself. The strength of the hierocraey vis-a-vis the political powers and 
hostile social forces comes to depend upon the number of deputies 
pledged to its will. Hierocraey has no choice but to establish a party 
organization and to use demagogic means, just like all other parties. 
This necessity reinforces the bureaucratic tendencies, since the hiero- 
cractic apparatus must be equal to the tasks of a party bureaucracy. 
The strength of the central authorties and of the agencies required for 
the political struggle and for public manipulation grows at the expense 
of the old local powers (i.e., the bishops and parish priests); this is 
typical of every large group that is engaged in a struggle. The means 
employed are similar to those of the other mass parties — apart from the 
highly emotive devotional means that were created by the Counter- 
Reformation for the purpose of mass agitation. They comprise the estab- 
lishment of co-operatives, which are controlled by the hierocraey; for 
example, the granting of loans may depend outright upon written proof 
of confession or, at least, credit worthiness may be identified with relir 
gious conduct. Other means are workingmen's associations, youth groups 
and, especially, the control of education. If education is public, the 
hierocraey demands control over instruction or tries to underbid the public 
schools with convent schools. Wherever possible, the traditional com- 
promise with the state will be retained, assuring privileges under criminal 
and civil law as well as economic subsidies to the churches and their 
missions. The subordination of the state in all ecclesiastically regulated 
spheres of life remains the real will of God. However, in a demo- 
cracy where power is vested in the hands of elected deputies, the hiero- 
craey can tolerate the "separation of church and state." This formula can 
denote many things; for example, the resulting flexibility and freedom 
from state control may provide the hierocraey with so much power that 
it can overcome the loss of its formal privileges. One could have sur- 
mised that the elimination of the budget for religious affairs would 



I I $6 POLITICAL AND HIEROCRATTC DOMINATION [ Ck. XV 

gravely affect the hierocracy, but in the country with the strictest constitu- 
tional separation of church and state — the United States — , municipal 
councils with a Catholic majority can subsidize parochial schools and 
thus reintroduce a latent subsidy that is much more convenient for the 
hierocracy than an official one.' If, furthermore, restrictions on the 
accumulation of real estate and property are removed, the perhaps slow 
but irresistible growth of inalienable church property is today as certain 
as it was in earlier times. 

The cohesion of the hierocratic partisans is naturally greatest in coun- 
tries with a denominationally mixed population, as in Germany amongst 
opponents, or in countries like Belgium where the agrarian and petty- 
bourgeois strata are geographically separate from the industrial popula- 
tion. In such countries the hierocracy throws its weight usually against 
my predominance of the two "capitalist" classes, the bourgeoisie and, 
especially, the working class. 



1 2. The Reformation and Its Impact on Economic Life 



A. THE POLITICAL AND RELIGIOUS CAUSES OF THE RELIGIOUS SPLIT 

The Reformation, which gready changed the position of hierocracy, 
was certainly codetermined by economic factors. On the whole, how- 
ever, their influence was indirect. To be sure, the peasants were in- 
terested in the new doctrine primarily because they wanted their land 
to be freed from the payments in kind and die services diat were not 
justified by the Bible, just as is true today of the Russian peasants. But 
the immediate interests of the bourgeoisie clashed only with the monastic 
crafts; everything else was secondary. Nowhere is the prohibition of 
usury mentioned as an issue. Decisive for the transformation was the 
weakening of papal authority through the Gredt Schism [1378-1417], 
which in turn had political reasons, and through the resulting conciliar 
moverr -nt, which further reduced papal authority in the remote 
Northern countries where it had been less strong than in the South. 
Papal authority was also diminished by the persistent and successful 
struggle of the princes and- Estates against its interference with the 
grantin » of domestic benefices and against its tax and fee system; it 
lost ground because of the caesaropapist inclinations and secularizing 
tendencies of the princes who had strengthened their power tre- 
mendously through administrative rationalization, and after the ec- 
clesiastic tradition became discredited in the eyes of the intellectual 
circles and the noble and bourgeois *;trata. 



12 ] The Reformation and Its Iwpact on Economic Life i i 97 

However, these tendencies toward emancipation were almost com- 
pletely unrelated to any desires for an emancipation from a religions 
way of life, and connected only slightly with a desire for diminishing 
the hierocratic restraints. It would be completely wrong to assume that 
a society longing for an affirmation of worldly life, "freedom of the 
individual," or even beauty and sensual enjoyment felt fettered by 
ecclesiastic hostility to these aspirations. In practice, the church left 
nothing to be desired in this respect. The very opposite is true: The 
reformers believed that the religious penetration of worldly life through 
the hierocracy did not go far enough, and this was believed especially 
by bourgeois groups. The church never dared to demand the self-control, 
asceticism and ecclesiastic discipline that the great ideological opponents 
of the papacy, the Anabaptists and related sects, imposed upon them- 
selves, to a degree sheerly incomprehensible for us today. It was precisely 
the unavoidable compromise of the hierocracy with the secular powers 
and with sin which provoked them. The ascetic varieties of Protestantism 
have prevailed wherever the bourgeoisie was a social power, and the least 
ascetic churches of the Reformation, Anglicanism and Lutheranism, 
wherever the nobility or the princes had the upper band. It was the 
peculiar piety of the intensely religious bourgeois strata that made them 
side with the reformist preachers -against the traditional ecclesiastic 
apparatus, just as they had sided earlier with the hierocracy against the 
Empire and with the mendicant orders against the secular clergy; their 
piety was characterized by a relatively rational ethics, by the nature of 
bourgeois occupations and by a relatively strong preoccupation with self- 
justification before God, features which corresponded to a mode of life 
that was less determined by organic natural events than peasant life. 
These strata would have much preferred an internal reform of the 
church to an ecclesiastic revolution, if the former would have satisfied 
their ethical demands. However, the hierocracy was confronted with 
certain difficulties that it. could not resolve in time, since they were 
rooted in the historical legacies of its organization and connected with 
concrete power interests. The massive impact of specific economic and, 
especially, political constellations on the course of the religious split is 
well-known, but must not be allowed to blur the great importance of the 
ultimately religious motives. 



B. LUTHERANISM 

The Reformation in turn strongly affected economic development, 
but its impact varied with the peculiarities of the new creeds. The atti- 
tude of the Lutheran churches toward the two capitalist classes, hour- 



I I 9 8 POLITICAL AND HIEROCRATIC DOMINATION [ Ck. XV 

geoisie and proletariat, differs from the Catholic only in degree. Luther's 
views on economic affairs were strictly traditional and far less "modern" 
than those of the Florentine theoreticians. 10 His church was founded 
explicitly upon the office charisma of the minister, whose calling was 
the preaching of the Gospel; his church was bluntly hostile to any re- 
bellion against the God-given authorities. The most important innova- 
tion, also in economic respects, was the elimination of the consilia 
evangelica, which had surpassed the standards of secular morality and 
social order; thus, the monasteries and monastic asceticism were abolished 
as a useless and dangerous expression of seeking salvation through good 
works— a measure to which at first Luther was not at all committed. 
Henceforth, the Christian virtues could be pursued only within the 
secular social order, in marriage, state and vocation. The duty of safe- 
guarding the primary task, the propagation of the pure Gospel, fell in 
Lutheranism to the political power, since the hierocracy as well as the 
attempt at forming autonomous religious communes had failed— the 
latter, of course, in part for political and economic reasons — and since 
the office charisma of the church, as a redemptory institution for the 
obligatory preaching of the word, was retained. The resulting caesaropap- 
ism was tremendously strengthened through the great secularizations 
of the Reformation period. 



C. ETHICS AND CHURCH IN CALVINISM 

An anti-capitalist ethos and welfare orientation is, in effect, a com- 
mon characteristic of all religions that promise salvation. However, 
there are two exceptions, differing frOm one another: Puritanism and 
Judaism. Only one of the Puritan communities (in the broad sense that 
comprises all essentially ascetic Protestant groups) is not a sect, but a 
church in the sociological meaning used here, that means, an hierocratic 
institution: Calvinism. 

The character of the Calvinist church differs from that of all other 
churches, Catholic, Lutheran and Islamic. In view of the limited space 
available to us, we will, perforce, summarize our theory of Calvinism 
in a purposively accentuated manner. 11 The basic dogma of strict Cal- 
vinism, the doctrine of predestination, makes it impossible for the church 
to administer sacraments whose reception can have any significance for 
eternal salvation. Moreover, the actual behavior of the believer is ir- 
relevant to his fate, which has been determined from eternity through 
God's inscrutable and immutable will. The elect need no church for 
their own sake. Its very existence, and largely also its organization, rests 
exclusively upon God's commandment, just like all other political and 



■i z ] The Reformation and Its Impact on Economic Life i 199 

social institutions and all social duties of the believers. The reasons for 
this commandment are unknown to the believers, but it has been 
definitively revealed in the Bible; its details can be supplemented and 
interpreted by human reason, which exists for this purpose. By no 
means does the church exist for the salvation of souls and the sinners' 
community of love; its sole purpose is the augmentation of God's glory 
and honor, thus a cold Divine raison d'itat. The church exists not only 
for the blessed but also the condemned, so that, for the greater glory 
of God, it can suppress sinfulness, which is common to all men and 
separates all beings irremediaHy from God: The church is a scourge and 
not a vehicle of salvation. Every attempt at resorting to magic sacra- 
ments is a foolish infringement on God's established order; the church 
does not dispose of such means. Thus the church has here been com- 
pletely divested of its charismatic character and has become a mere 
social institution. However, its establishment is a duty divini iuris; its 
dignity surpasses that of all other institutions and its form of organiza- 
tion is the only one prescribed by God. Yet apart from this feature, the 
duty to maintain the church is ultimately not different from the social 
obligation to support the equally God-wUled state and from the duties 
in a worldly calling. In contrast to all other churches, these duties 
cannot consist in the endeavor to attain a specific state of grace, in the 
manner of the monks, by^surpassing secular morality, for such attempts 
are meaningless in the face* of predestination; rather, these duties consist 
in serving God's glory within the given order and within a "calling." 
The notion of a "cajling" derives in a!I Protestant countries from 
the Bible translations, and among the Calvinists it explicitly includes the 
legal profit from capitalift enterprises. With the consistent development 
of Calvinism — which is not identical with Calvin's own attitudes — 
such profit and the rational means of its realization received an ever 
more positive evaluation. The inscrutability of predestination to either 
salvation or damnation was naturally intolerable to the believer, he 
searched for the certitudo salutis, for an indication that he belonged to 
the elect. Since otherworldly ascetism had been rejected, he could find 
this certainty, on the one hand, in tL. conviction that he was. acting 
according to the tetter of the law and according to reason, repressing all 
animal drives; on the other, he could find it in visible proofs that God 
blessed his work. "Good works" of the Catholic variety were meaning- 
less in the face of God's unchangeable decree; however, for the believer 
and his community, his own ethical conduct and fate in the secular 
social order became supremely important as an indication of his state 
of grace. A person was judged elect or condemned as an entity; no 
confession and absolution could relieve him and change his position 



I 2 O O POLITICAL AND HI£ROCRATIC DOMINATION [ Ch. XV 

before God and, in contrast to Catholicism, no individual "good deed" 
could compensate for his sins. Therefore, the individual could only be 
sure of his state of grace if he felt reason to believe that, by adhering 
to a principle of methodical conduct, he pursued the sole correct path 
in all his* action — that he worked for God's glory. Methodical conduct, 
the rational form of asceticism, is thus carried from the monastery into 
the world. The ascetic means are in principle identical: Rejected are all 
vain glorification of the self and of all other things of the flesh, feudal 
pride, the spontaneous enjoyment of art and life, "levity," all waste of 
money and time, eroticism, or any other activity that detracts From the , 
rational work in one's private vocation and within the God-willed social 
order. The curtailment of all feudal ostentation and of all irrational 
consumption facilitates capital accumulation and the ever-renewed utiliza- 
tion of property for productive purposes; this-worldly asceticism as a 
whole favors the breeding and exaltation of the professionalism needed 
by capitalism and bureaucracy. Life is focused not on persons but on 
impersonal rational goals. Charity becomes an impersonal operation of 
poor-relief for the greater glory of God. And since the success of work is 
the surest symptom that it pleases God, capitalist profit is one of the 
most important criteria for establishing that God's blessing rests on the 
enterprise. 

It is clear that this style of life is very closely related to the self- 
justification that is customary for bourgeois acquisition: profit and prop- 
erty appear not as ends in themselves but as indications of personal 
ability. Here has been attained the union of religious postulate and 
bourgeois style of life that promotes capitalism. Of course, this was not 
the purpose of the Puritan ethic, especially not the encouragement of 
money making-, on the contrary, as in all Christian denominations, 
wealth was regarded as dangerous and full of temptation. However, 
just as the monasteries time and again brought this temptation on them- 
selves by virtue of the ascetic rational work and conduct of their 
members, so did now the pious bourgeois who lived and worked as- 
cetically. 



1 3 . Hierocracy and Economic Ethos in Judaism 

Judaism must be formally classified as a church, since it is :m in- 
stitution into which a person is born, not an association of persons 
with specific religious qualifications. However, it differs even more from 
other hierocracies than Calvinism. Like the latter, Judaism does not 
know magic charisma, institutional gifts of grace and monastfcrsm. In- 



13 ] Hierocracy and Economic Ethos in Judaism i 2 o i 

dividual mysticism is simply one of several religious activities that please 
God and bring the believer nearer to him; hence it does not produce 
the strong tensions in relation to office charisma that occurred in 
Christianity. Since the destruction of the Temple there existed neither 
priests nor a worship (Ktthws) in the genuine meaning of the term that 
ancient Judaism shared with other religions: an institutional hierurgy 
[religious service for the believers]; rather, there are only assemblies for 
the purpose of preaching, praying, singing and the reading and interpre- 
tation of the Scripture. The individual, not the institution, must perform 
the decisive religious act by strictly adhering to the Law. Everything 
else is secondary. Adherence to the Law is not, as among the Puritans, 
the cognitive basis for gaining God's blessings, but their direct cause, 
from which the individual's this-worldly life, his descendants and his 
people will benefit. The belief in individual immortality, however, 
Judaism accepted only late, and its eschatological expectations are this- 
worldly. 

For the economic ethos, insofar as it was codetermined by religious 
factors, these this-worldly expectations of salvation have been of great 
'significance; just like in Puritanism, God's blessings are recognized in 
the economic success of the individual. Also very important was the 
highly rational character of conduct, which at the least was strongly in- 
fiuenced'by the nature of religious instruction. In this respect, too, Judaism 
and Protestantism are similar. For the Catholic, the detailed knowledge 
of dogmas and sacred texts is dispensable, since the church, as an agency 
of salvation, intervenes for him; it is sufficient if he trusts its authority 
by believing its prescriptions as a whole (fides implicita). Faith is here 
a form of obedience toward the church, whose authority does not rest 
upon sacred texts; rather, the church gurantees their sanctity, which the 
believer himself cannot verify. By contrast, for Jews and Puritans the 
Holy Scripture is a binding law, which the individual must know and 
interpret correctly. One result is the tremendously intensive Jewish in- 
struction in the Torah and its casuist interpretation, another the Prot- 
estant zeal for founding elementary schools; characteristically, the Prot- 
estant Pietists had a strong preference for the teaching of "practical" 
knowledge (Realien). The resulting disciplining of thought has no doubt 
been beneficial to the rational economic ethos and, among the Jews, to 
their typical dialectical rationalism. As against this, the Second Com- 
mandment led to the complete atrophy of the plastic arts, diminished 
the artistic sublimation of sensuality and facilitated the latters naturalist 
and rational treatment. The same happened under ascetic Protestantism, 
which made even smaller concessions to the realities of sensuality. In 
both cases the strict rejection of all things of the flesh had a rationalizing 



I 2 O 2 POLITICAL AND HtBROCRATtC DOMINATION [ Ch. XV 

impact by promoting the bourgeois style of life and by opposing all 
concessions to feudal "wastefulness." The positive evaluation of bour- 
geois acquisition was already established in the Mishna. The specifically 
urban, yet unassimilable and international character of Judaism, which 
was the same in ancient and in later times, has two causes. On the 
one hand, there are ritual motives: circumcision is retained in an en- 
vironment which does not practice it, and the Jewish butcher is in- 
dispensable because of the food regulations; even today this precludes an 
individual dispersion^ orthodox Jews. On the other hand, the hierocracy 
was completely desflWj^^ft'messianic hopes persisted. 

To that extent Jewish Religiosity may have shaped the Jewish eco- 
nomic ethos. It is difficult to say whether its impact went even further. 
For the rest, the peculiarity of this unique pariah people should, be 
explained primarily in terms of its historical legacies and its special 
situation, since here too "racial" codetetminants are nowhere demonstra- 
ble, although they probably exist in one sensg^r another. 

(a) EXCURSUS ON INTERPRETATIONS OF THE JUDAIC ECONOMIC 

ethos. However, an historical explanation too must proceed cautiously. 
The Israelites were probably never a "desert people" in the sense that their 
law had Bedouin origins, as Merx has maintained, or that they were 
shaped by desert conditions, as Sombart believed. 19 At the time that 
they might haw been a nomad people, neither camel nor horse existed in 
the Arabian desert. Their oldest historical document, the Song of 
Deborah, just like their later tradition, shows them as a sworn con- 
federacy of mountain tribes which time and again defended its 
independence against the urban patriciate of the Canaanite and Philis- 
tine cities, fighting their charioteers with foot soldiers; and just like the 
Swiss and, for a time, the Samnites, they eventually subjected some of 
the nearby cities. Thus they gained control of the trade route from 
Egypt to Mesopotamia, just as the Swiss controlled the Alpine passes 
and the Samnites those of the Apennines. For a God like Yahwe who is 
worshipped on mountains, Mount Sinai appears the proper seat because 
it has the highest elevation. If the migration from Egypt is not his- 
torical (as it appears possible to me), die release from "Egyptian serf- 
dom" may have referred to the "liberation" from the Jerusalemite mon- 
archy, which had followed the Egyptian example of imposing compulsory 
services and had been condemned by the priesthood. 

The rise of the hierocracy, especially during the period of alien 
domination, shaped the further course of events and led in particular to 
the absolute segregation from all who were not of the same blood. The 
increasing concentration upon the financial trades and, secondarily, 
upon commerce is an early result of .the Diaspora; equally ancient is its 



13 ] Hierocracy and Economic Ethos in Judaism 1203 

indispensability for the alien environment. In all essentials, the jews 
held a similar position in the Roman Empire as they did during the 
Middle Ages — note the dispensation from the cult of the Emperor, to 
which the Christians were forced. Jewish ciafts existed in Arabian Spain 
and do exist in the Orient and — from sheer necessity — in .Russia. For a 
time a Jewish knighthood existed in Syria during the Crusades. Hence 
the economic specialization of the Jews seems tc increase with the grow- 
ing differentiation from the environment; even so all of these cases are 
exceptional. It appears to me unprovable that Jewish law greatly facili- 
tated the development of modern forms of securities, as Sombart has 
assumed;" rather, it appears likely that Jewish commercial law was 
strongly influenced by Byzantine law (and through it perhaps in a gen- 
erally Oriental manner), 

(b) judaism and capitalism. Wherever the Jews appeared, they 
were the agents of the money economy, especially, and in the High 
Middle Ages exclusively, of the loan business, but they also engaged 
widely in commerce. For the development of cities they were as in- 
dispensable to German bishops as to Polish nobles. Their prominent, and 
often dominant, participation is established with regard to the purveying 
?nd loan transactions of the early modern states, the founding of colonial 
companies, the colonial and slave trade, trade in cattle and agricultural 
goods, and in particular for the modern stock market trade in securities 
and for the floating of new issues. 

It is a different question whether the jews can be assigned a major 
role in the development of modern capitalism. The following must be 
considered: Capitalism living from loan usury, or from the state, its 
credit and supply needs, and from colonial exploitation, is nothing spe- 
cifically modem. These are features which modern Occidental capitalism 
has in common with the capitalism of Antiquity, the Middle Ages 
and the modern Orient. In comparison with Antiquity (and the Near 
East and Far East) modern capitalism is characterized by the capitalist 
organization of prodztction, and here the Jews have not had a decisive 
influence. Moreover, the mentality of the unscrupulous big financier 
and speculator can be found at the time of the prophets no less than 
during Antiquity and the Middle Ages. The decisive institutions of 
. modem trade: the legal and economic forms of securities as well as the 
stock markets have a Romanic and Germanic origin. However, the Jews 
contributed to giving the Exchange its present importance. 

Finally, the typical Jewish commercial spirit, insofar as one can 
speak of it concretely, has general Oriental characteristics, in part even 
petty-bourgeois features that are peculiar to the precapitalist age. With 
the Puritans the Jews have in common the purposive legitimation cf 



I 2 O 4 . POLITICAL AND HIEROCRATIC DOMINATION { Ck. XV 

formally legal profit, which is considered a sign of Divine blessings, and 
the idea of the calling, although it does not have as strong a religious 
foundation as in Puritanism. The most important influence of the Jewish 
Law upon the modern capitalist ethic was perhaps the fact that its 
legalistic ethic was absorbed by the Puritan ethic and thus put into the 
context of modern-bourgeois economic morality. 



14. Sect, Church and Democracy 1 * 

A sect in the sociological sense of the word is not a small group: 
The Baptists, one of the most typical sects, are one of the largest Prot- 
estant denominations in the world. Moreover, the sect is not a group that 
is split off from another that does not recognize it or persecutes it and 
condemns it as heretical. Rather, the sect is a group whose very nature 
and purpose precludes universality and requires the free consensus of its 
members, since it aims at being an aristocratic group, an association of 
persons with full religious qualification. The sect does not want to be an 
institution dispensing grace, like a church, which includes the righteous 
and the unrighteous and is especially concerned with subjecting the 
sinner to Divine law. The sect adheres to the idea] of the ecclesta pura 
(hence the name "Puritans"), the visible community of saints, from 
whose midst the black sheep are removed so that they will not offend 
God's eyes. The typical sect rejects institutionalized salvation and office, 
charisma. (The term "sect" must, of course, be carefully freed from all 
connotations due to ecclesiastic calumniations.) 

The individual may be qualified as a member in various ways: by 
virtue of divine predestination, as in the case of the Particular Baptists, 
the elite troops of Cromwell's Independents; by virtue of the "inner 
light" or of the pneumatic ability to experience ecstasis; by virtue of 
the "struggle for penitence" (Busskampf) and the resulting "break- 
through" (J)urchhruc}C), as in the case of the old Pietists; at any rate, 
qualification derives either from specific "pneumatic" abilities [i.e., sus- 
ceptibility to the Holy Spirit], as in the case of all predecessors of the 
Quakers v the Quakers themselves and the majority of "pneumatic" sects, 
or from other kinds of given or acquired charisma. The metaphysical 
reasons for establishing a sect may be most diverse. Sociologically im- 
portant is the fact that the community functions as a selection apparatus 
for separating the qualified from the unqualified. At least in the pure 
case, die elect or the qualified must avoid contact with the condemned. 
During its rigorous periods, every church, including the Lutheran and, of 
course, Judaism has employed the power of excommunication against 



1^3 _ Sect, Church and Democracy 1205 

those who were persistently disobedient and unbelieving. Excommunica- 
tion usually implied an economic boycott, especially in the early periods of 
a church. Some churches would prohibit any physical contact, sexual or 
economic, with the outsiders: for example, the Zoroastric church and the 
Shiites, but most of the time only caste religions such as Brahminism went 
so far. Most sects, too, were not so radical, but such a step is as consistent 
for them as for monasticism. At least those persons expelled for their 
lack of qualification were subjected to the strictest boycott. Their ad- 
mission to the service, especially to the Lord's Supper, would have 
evoked God's wrath and have dishonored him. The idea that the elimina- 
tion of those visibly condemned by God is the task of every member 
strongly reinforced the importance of the congregation vis-a-vis any 
office. This can be observed already in Calvinism, which resembles the 
sects by virtue of its aristocratic charismatic principle of predestination 
and the degradation of office charisma. An example is the ecclesiastic 
, revolution of the strict Calvinists in the Netherlands during the 1880's; 
'the revolution, which was led by Kuyper 15 and which had such great 
political consequences, occurred because the higher bodies of the national 
church demanded that the individual congregations admit confirmees 
of lax predicants to the Lord's Supper. Consistent sects subscribe to the 
principle of the absolute sovereignty of the congregation, since only 
those who know one another personally and in everyday life can judge 
each other's religious qualifications. For this reason, when individual 
congregations of the same creed unite and form a larger community, 
they establish a merely instrumental association and retain die ultimate 
decisions for themselves. The individual congregation is primary and 
inevitably has "sovereignty," if we may apply this term at all. For the 
same reason [i.e., the requirement of personal acquaintance] it is always 
the small congregation, the ecclesioia of the Pietists, which is most suited 
for these functions. This is the negative side of the congregational 
principle, which culminates in the rejection of the expansive universalis! 
charisma of office. For the individual, this basic nature of a congregation 
formed by selective admission has the practical significance of legiti- 
mating his personal qualification. Anyone admitted as a member can 
thereby demonstrate to the world that he has measured up to the con- 
gregation's religious and moral standards after a thorough examination. 
This may have the greatest consequences for him, also in economic 
respects, if the examination is regarded as strict and as including eco- 
nomically relevant qualities. A few illustrations may be given: In the 
writings of the Quakers and Baptists of some two hundred years ago 
we find jubilation over the fact that the Godless deposit or invest their 
money not with their own ilk but with the pious brethren, whose no- 



I 2 06 POLITICAL AND HIEROCRATIC DOMINATION [ Ch, XV 

torious honesty and reliability appear as more valuable than a security, 
they also note that the clientele of their retail stores is growing since the 
Godless know that even their children and servants will be charged 
nothing but the fixed and fair price and will receive only priceworthy 
goods. Quakers and Baptists compete for the honor of having replaced 
"Oriental" bargaining with the system of fixed prices in the retail trade 
— a system that is important for capitalist calculation in all fields. Matters 
are not different today, especially in the major domicile of the sects, 
the United States. As a traveling salesman, the typical sect member, 
just like the Freemason, prevails over any competition, even outside his 
own group, since the customers are convinced that his prices are fair. 
A person who wants to open a bank joins the Baptists or Methodists, 
for everybody knows that baptism, respectively admission, is preceded 
by an examen rigorosum which inquires about blemishes in his past 
conduct: frequenting an inn, sexual life, cardplaying, making debts, 
other levities, insincerity, etc.; if the result of the inquiry is positive, 
credit-worthiness is guaranteed, and in countries like the United States 
personal credit is almost unthinkable on any other basis. The ascetic 
demands upon the true Christian happen to be the same as those that 
capitalism makes upon its novices, at least where the maxim "Honesty 
is the best policy" is valid. A sect member of this kind is preferred in 
all responsible positions of the capitalist apparatus: as board member, 
director, promoter or foreman. Wherever he goes, the member finds a 
small congregation of fellow-believers which receives him as a brother, 
upon recommendation from his previous congregation, and legitimates 
and recommends- him — a practice that is still current in the United 
States, and an advantage shared by all diaspora religions, such as 
Judaism. He will soon gain an economic foothold in a way which is 
denied to the outsider. The member's reputation largely corresponds to 
his actual qualities, for the intensity of indoctrination and the impact 
of exclusion are much more effective than any authoritarian ecclesiastic 
discipline can be. 

The Old Methodist confession in the weekly meetings of the small 
groups set up for this purpose, the class meetings and the mutual control 
and admonition of the Pietists and Quakers contrast with the Catholic s 
auricular confession, which in this sense is uncontrolled and serves the 
sinner's relief but rarely aims at changing his mind. More important 
than any other factor is the fact that a man must hold his own under 
the watchful eyes of his peers. This basis of self-esteem spread with in- 
creasing secularization from the sects into all walks of American life, by 
virtue of the numerous associations and clubs, most of which recruit 
their members through balloting-, these associations exist for all con- 



14 ] Sect, Church and Democracy 1207 

ceivable purposes and extend down to the level of the boys' clubs in the 
schools. Even today the middle-class "gentleman" is legitimated by the 
badge of some association. Even though many of these traditions are 
disintegrating, it is still true that American democracy is not a sand-pile 
of unrelated individuals but a maze of highly exclusive, yet absolutely 
voluntary sects, associations and clubs, which provide the center of the 
individual's social hfe^ American students may even consider it a cause 
for committing suicide if they fail to be elected into an exclusive club. 
Of course, analogies can be found in many voluntary associations, for 
the question of being joined by other individuals is considered frequently 
— and in non-economic associations predominandy — not merely from 
the functional viewpoint of the group's manifest purpose; rather, mem- 
bership in exclusive clubs is everywhere regarded as a status elevation. 
Nowhere was this as true as in America's classic era: The sect and its 
derivations are one of her unwritten but vital constitutional elements, 
since they shape the individual more than any other influence. 

By virtue of the dictum that "We must obey God rather than men" 
[Acts 5:29], hierocracy claimed an autonomous charisma and law of its 
own, secured obedience and firmly restrained the political power. With 
its office charisma, hierocracy protects those over whom it claims domina- 
tion against encroachment from other authorities, whether the inter- 
fering person be the political ruler, the husband or the father. Since both 
the mature political and ,hierocratic power raise universalist demands, 
that is, since they both want to define the extent of their control over 
the individual, their 'adequate relation is a compromise or an alliance 
for the sake of joint domination in which their spheres of influence are 
mutually delimited. The formula of the separation of church and state 
is feasible only if either of the two powers has in fact abandoned its 
claim to control completely those areas of life that are in principle ac- 
cessible to it. 

In contrast to hierocracy, the sect opposes the charisma of office. The 
individual can exercise hierocratic powers only by virtue of his personal 
'charisma, just as he can become a member only by virtue of a publicly 
established qualification, the most unambiguous symbol of which is the 
"rebaptism" of the Baptists, in reality, the baptizing of qualified adults. 
The services of the Quakers are a silent waiting in order to see whether 
the Divine spirit will overcome a member on this day. Only he will 
speak up to preach or pray. It is already a concession to the need for 
regulation and order if those who have proven their qualification to 
preach the Word of God are put on special seats and are now compelled 
to help along the coming of the spirit by preparing sermons; this is done 
in most Quaker congregations. However, in contrast to all consistent 



I 2 O 8 POLITICAL AND HIEROCRATTC DOMINATION [ Ck. XV 

churches, ail rigorous sects adhere to the principle of lay preaching and 
of every member's priesthood, even if they establish regular offices for 
economic and pedagogic reasons. 

Moreover, pure sects also insist upon "direct democratic administra- 
tion" by the congregation and upon treating the clerical officials as 
servants of the congregation. These very structural features demonstrate 
the elective affinity between the sect and political democracy. They also 
account for its peculiar and highly important relationship to the political 
power. The sect is a specifically antipolitical or at least apolitical group. 
Since it must not raise universal demands and endeavors to exist as a 
voluntary association of qualified believers, it cannot enter into an 
.alliance with the political power. If it concludes such an alliance, as- 
the Independents did in New England, the result is an aristocratic rule 
by the ecclesiastically qualified; this leads to compromises and to the loss 
of the sect character — witness the so-called Halfway Covenant [of the 
Congregational churches in 1662]. The greatest experiment of this kind 
was' the abortive rule by Cromwell's Parliament of Saints. The pure 
sect must advocate "tolerance" and* "separation of church and state" for 
several reasons: because it is in fact not a universalist redemptory insti- 
tution for the repression of sin and can bear political as little as hierocratic 
reglementation; because no official power can dispense grace to unqualified 
persons and, hence, all use of politicar force in religious matters must ap- 
pear senseless or outright diabolical; because the sect is simply not con- 
cerned with outsiders; because, taking all this together, the sect just cannot 
be anything but an absolutely voluntary association irit wants to retain its 
true religious identity and its effectiveness. Therefore, consistent sects have 
always taken this position and have been the most genuine advocates of 
"freedom of conscience." 

Other communities, too, have favored freedom of conscience, but in 
a different sense. It is possible to speak of this freedom and of tolerance 
under the caesaropapist regimes of Rome, China, India and Japan, since 
the most diverse cults of subjected or affiliated states were permitted and 
since no religious compulsion existed; however, in principle this is 
limited by the official cult of the political power, the cult of the emperor 
in Rome, the religious veneration of the emperor in Japan, and probably 
also the emperor's cult of Heaven in China. Moreover, this tolerance had 
political, not religious reasons, as did that of King William the Silent 
or, much earlier, Emperor Frederick II, or manorial lords who used sect 
members as skilled labor, and in the city of Amsterdam, where the 
sectarians were major agents of commercial life. Thus, economic motives 
played an important role. But the genuine sect must demand the non- 
intervention of the political power and freedom of conscience for spe- 



14 ] Sect, Church and Democracy 1209 

cifica'lly religious reasons — there are transitional forms, but we leave 
them aside deliberately. 

A fully developed church — advancing universalist claims — cannot 
concede freedom of conscience; wherever it pleads for this freedom, 
it is because it finds itself in a minority position and demands something 
which, in principle, it cannot grant to others. "The Catholic's freedom of 
conscience," Mallinckrodt said in the Reichstag "consists in being free to 
obey the pope," that means, in following his own conscience. However, 
if they are strong enough, neither the Catholic nor the (old) Lutheran 
Church and, all the more so, the Calvinist and Baptist old church rec- 
ognize freedom of conscience for others. These churches cannot act dif- 
ferently in view of their institutional commitment to safeguard the sana- 
tion of the soul or, in the case of the Calvinists, to protect the glory of 
God. By contrast, the consistent Quaker applies the principle of the 
freedom of conscience not only to hirriself but also to others, and rejects 
any attempt to compel those who are not Quakers or Baptists, to act as 
if they belonged to his group. Thus the consistent sect gives rise to an 
inalienable personal right of the governed as against any power, whether 
political, hierocratic or patriarchal. Such freedom of conscience may be 
the oldest Right of Man — as Jellinek has argued convincingly;' 6 at any 
rate, it is the most basic Right of Man because it comprises all ethically 
conditioned action and guarantees freedom from compulsion, especially 
from the power of the state. In this sense the concept was as unknown to 
Antiquity and the Middle Ages as it was to Rousseau's social contract 
with its power of religious compulsion. The other Rights of Man or 
civil rights were joined to this basic right, especially the right to pursue 
one's own economic interests, which includes the inviolability of in- 
dividual property, the freedom of contract, and vocational choice. This 
economic right exists within the limits of a system of guaranteed abstract 
rules that apply to everybody alike. All of these rights find their ultimate 
justification in the belief of the Enlightenment in the workings of in- 
dividual reason which, if unimpeded, would result in the at least relatively 
best of all worlds, by virtue of Divine providence and because the in- 
dividual is best qualified to know his own interests. This charismatic 
glorification of "Reason," which found a characteristic expression in its 
apotheosis by Robespierre, is the last form that charisma has adopted in 
its fateful historical course. It is clear that these postulates of formal legal 
equality and economic mobility paved the way for the destruction of all 
patrimonial and feudal law in favor of abstract norms and hence in- 
directly of bureaucratization. It is also clear that they facilitated the ex- 
pansion of capitalism. The basic Rights of Man made it possible for 
the capitalist to use things and men freely, just as the this-worldly 



I 2 I O POLITICAL AND HIEROCRATTC DOMINATION [ Ch. XV 

asceticism — adopted with some dogmatic variations — and the specific 
discipline of the sects bred the capitalist spirit and the rational "pro- 
fessional" (Berufsmensch') who was needed by capitalism. 



NOTES 

Unless otherwise indicated, all notes and emendations are by Roth, 
i . Cf. sec. S below. — Foi a flat rejection of the view that Lamaism had the 
effect of pacifying the Mongols, see Owen Lattimore, Inner Asian Frontiers of 
China. New York: American Geographical Society, 1951 (first published in 
r94o), 86f. In Tibet, Buddhism was received in the 7th century, but the Lamaist 
church served at first as an instrument of the secular kings before establishing its 
own supremacy. The great Mongol conqueror Kublai Khan (13th century) fa- 
vored Lamaism, but in the next century it disappeared in Mongolia in the wale 
of China's resurgence. In the 16th century Lamaism was adopted again by Altan 
Khan as an integrative instrument of secular rule. Subsequently, however, the 
Manchu empire brought about a stalemate between state and church in Mongolia, 
whereas the Tibetan church maintained its supremacy by allying itself with the 
Manchu interests (cf. Lattimore, 216-221). Hence, Lama -Buddhism seems to 
illustrate at least Weber's generalization that in its competition with secular au- 
thority a hierocracy may seek the support, or be the tool, of foreign powers. For 
a more recent discussion of Lamaist government with its mixture of feudal and 
bureaucratic features, and on the Chinese influence, see Pedro Carrasco, Land and 
Polity in Tibet (Seattle: University of Washington Press, 1959), esp. 207, 217, 
224-8. r 

2. Bulls of Circumscription; papal decrees establishing the ecclesiastic dis- 
tricts in a non-Catholic country after prior agreement with the secular authorities. 

3. See Weber, The Rational and Social Foundations of Masic, Don Martin- 
dale, trans. (Carbondale: The Southern Illinois Press, 1958). 

4. This refers to the "Greek" reform movement under Patriarch Nikon (see 
sec. io:e) in the 1650's, which tried to bring the Russian liturgy in line with* 
the older Greek practices. No dogmatic issues were involved, but in view of the 
magic efficacy of the traditional Russian rituals, a large part of the clergy and of 
the population — who came to be called the Old Believers — resisted the reforms at 
the risk, and often the price, of annihilation. The Old Believers continued to 
make the cross with two fingers, instead of three as the reformers decreed. An 
epidemic of selfbuming seized Russia for fifteen years in the wake of the Niko- 
nian reforms. See Herbert Ellison, History of Russia (New York: Holt, Rinehart 
and Winston, 1964), 78. 

5. Cf. Weber, Economic History, 193. 

;a. Cf. Aloys Schulte, Geschiehte des mittelalterlicken Handels und Veriehrs 
zwiscken Westdeutsckhtnd und Italien mit Ausschluss Venedigs (Leipzig: 
Duncker & Humblot, T900), 1, 263-272. 

6. On usury, see above, Soc. of Religion, ch. W-.pdi;^. 

7. "Liar"— -because he has broken his word; cf. ch. VI:x>t.'4, at n. z. 
7a. Seeabove.ch. VLwt,n. 1. 

8. See Stephen Beauregard Weeks, Southern Quakers and Slavery. A Study 
in Institutional History. (Baltimore: Johns Hopkins, 1896), 242ft". Cf, Weber, 
Economic History, 275. 

9. On this important, but relatively unknown phenomenon, see John W. 



Notes 



I z I I 



n!^"?° SS v7v eed X PubI ^ Welfarc P^ 3 ™'" T ^ Nsw York Historical Society 
Quarterly, XLV:4, Oct. 1961, 396-41 1. ' 

10. On St. Antoninus of Florence, see Carl Ilgner, Die volkswirtschaftUchen 
Anchtuungen Anton,™ V on Fhrenz O 3 ««-i*5j0 (Paderbom: Schomngh, 
1904;; BedeHarret, S. Awtowmo and Medieval Economics (London 1914). Cf 
alwWeber, Protestant £iJ»c, 83, 197, 20 iff. 

F 11. Cf. supra, «p. ch. VI, sees, x: 1, 33:3, and xv: 4; see also Weber, Protestant 
ethic, passim. 

12. See Adalbert Merx, Dfe Biicher Moses und Josua (Tubingen 1907I and 
Werner Sombart Tie /„* «J M.i.m C»p«*Km (London 191™^ German 

•jj? ai 324 ' H' aIs0 , Webers TOt > re extensive discussion in bis "AgrarverhSlt- 
nisse in, Aitertum" (1909), repr . in GAzSW, esp. 83-93. 

1 3. See Sombart, op. tit., ch. 6. 

14. This section contains some materials that Weber elaborated in The Prot- 
estant Sects and the Spirit of Capitalism," GAzRS, vol. I, 207-36, also Gerth and 
MUI*. , eds., op. at., 302-22 an<T 450-9 (extensive footnotes). An earlier (1006) 
and shorn* version of this essay preceded the writing of the present section. 

w\ .™ , am Ku yP"' *■** Dutch Minister of the Interior (1901-05), 
** J^i 7? C i rotestam Sk* •■-"*» Ger* and Mills, op. tit., 45 af. 

r6. CFGeorg JeUinek Die Erklarung der Menschen- und Biirgerrechte 
(Leipzig; Duncker und Humblot, 1 904 ), and ed. 



C H APl'L'R A V I 

THt: CITY (NON- 
LEGITIMATE DOMINATION) 1 



i 

Concepts and Categories of the City 



i . The Economic Concept of the City: 
The Market Settlement 

The notion of the "city" can be denned in many different ways. The 
only element which all these definitions have in common is the follow- 
ing: the city is a relatively closed settlement, and not simply a collection 
of a number of separate dwellings. As a rule the houses in cities — but not 
only in them — are built very close to each other, today normally wall-to- 
wall. The common concept further associates with the word "city" a 
purely quantitative aspect: it is a large locality. In itself, this is not im- 
precise. Sociologically speaking, this would mean; the city is a settlement 
of closely spaced dwellings which form a colony so extensive that the 
reciprocal personal acquaintance of the inhabitants, elsewhere charac- 
teristic of the neighborhood, is lacking. But on this definition only very 
large localities would qualify as cities, and the special conditions of 
various cultures would have to determine at which size the absence 
of personal acquaintance would be characteristic. Many localities which 
in the past had the legal character of cities were not marked by this 

[12.12] 



i ] Concepts and Categories of the City ; 2 1 5 

feature. Conversely, in present-day Russia there are "villages" which, 
with many thousands of inhabitants, are much larger than many 01 the 
old "cities" — for example, in the Polish settlement area of the Germjn 
East — with only a few hundred inhabitants. Size alone, certainly, cannot 
be decisive. 

If we were to attempt a definition in purely economic terms, the 
city would be a settlement whose inhabitants live primarily from com- 
merce and the trades rather than from agriculture. It would not he ex- 
pedient, however, to call a)l localities of this type "cities," lot (his wouki 
include in the concept settlements of kinship groups practicing a single, 
practically hereditary trade such as the "craft villages" of Asia and 
Russia. A further characteristic, hence, migh: have to be a certain 
multiplicity of the trades practiced. But even this would, by itself, not 
appear suitable as a decisive characteristic. Economic diversity can be 
called forth in two ways: by the presence of a court, or bv that of a 
market. A feudal, and, especially, a princely court constitutes a center 
whose economic or political needs evoke specialization of craft produc- 
tion and exchange of goods. However, a seigneurial or princely oikos 
with an attached settlement of artisans and small merchants encum- 
bered with tribute and service obligations, even if it be of large size, we 
would not usually call a "city," though it is true that a large proportion 
of important cities have their historical origin in such settlements and 
that the production for a prince's court remained a highly important, if 
not the chief, source of income for the inhabitants of such "princely 
towns" for a long time, A further characteristic is required for us to 
speak of a "city": the existence of a regular, and not only occasional, ex- 
change of goods in the settlement itself, an exchange which constitutes 
an essential component of the livelihood and the satisfaction of needs of 
the settlers — in other words: a market. But again: not. every "market" 
converts the locality in which it is conducted into a "city." The periodic 
fairs and markets for the long-distance trade, at which travelling mer- 
'chants gathered at fixed times in order to sell their wares in large or 
small lots to each other or to consumers, very often took place in lo- 
calities which we would call "villages." 

Accordingly, we shall speak of a "city" in the economic sense of the 
word only if the local population satisfies an economically significant 
part of its everyday requirements in the local market, and if a significant 
part of the products bought there were acquired or produced specifically 
for sale on the market by the local population or that of the immediate 
hinterland. A city, then, is always a market center. It has a local market 
which forms the economic center of the settlement and on which both 
the non-urban population and the townsmen satisfy their wants for 



I 2 I 4 THE CITY ( NON-LEGITIMATE DOMINATION) [ Ch. XVI 

craft products or trade articles by means of exchange on the basis of an 
existing specialization in production. It was originally quite normal for 
the city, wherever it was structurally differentiated from the countryside, 
to be both a seigneurial or princely residence and a market place and 
thus to possess economic centers of both types, oikos and market. Fre- 
quendy, in addition to the regular local market, it might also have 
periodical fairs for the long-distance trade of travelling merchants. But 
the city, as we use the word here, is essentially a "market setdement." 

The existence of the market is often based on concessions and 
guarantees of protection by the lord or prince. On the one hand these 
political masters are interested in a regular supply of foreign articles 
and craft products on the long-distance market, and in the tolls, the 
escort moneys and the other protection Fees, die market taxes and the 
fees from law suits which the fairs give rise to. On the other hand, 
they might also hope to profit from the local setdemen: if taxable trades- 
men and merchants and, once a setdement rises around the market, from 
the ground rents which this produces. Such opportunities gain in sig- 
nificance by the fact that these are monetary revenues which augment 
the seigneurs* hoards of precious metals. 

It also occurs that a city has no attachment whatsoever, not even 
physical proximity, to a seigneurial or princely residence. Such a city 
might originate as a pure market setdement at some suitable transship- 
ment point, either on the basis of a charter granted by a non-resident 
seigneur or prince, or on the basis of usurpation of urban rights by the 
interested parties themselves. A setdement entrepreneur might be given 
a charter to found a market and to recruit settlers for it, as was the case 
frequently during the Middle Ages, especially in the East-, North- and 
Central-European territories where towns were created by deliberate 
acts of foundation, and occasionally in many other places and periods. 
But cities could also arise without either attachment to the court of 
a prince or charter grant by a prince, namely through an association of 
foreign invaders, of sea-faring warriors or of merchant setders or, finally, 
of domestic groups with an interest in the middleman's position; in 
early Antiquity this occurred frequendy on the Mediterranean littoral, 
and sometimes also in the early Middle Ages. Such a city could be a 
pure market place. However, the coexistence of the two institutions, 
large princely or seigneurial patrimonial households on the one hand, 
and a market on the other, is found much more often. The lordly 
court, as one economic center of the city, could in this case satisfy its 
wants either primarily in the ways of a natural economy, through 
corvees, taxes in kind and service obligations placed upon the local 
dependent artisans and tradesmen, or it could supply itself to a greater 



i ] Concepts and Categories of the City i 2 i 5 

or lesser extent through exchange on the urban market whose most im- 
portant client it was. The more pronounced the latter relation, the more 
strongly the market aspect of the city came to the fore; it then ceased 
to be a mere appendage — albeit with a market — of the otfeos and turned 
into a market city. As a rule the quantitative expansion of cities which 
had originated as "princely cities" and the growth of their economic 
significance went hand in hand with an increase in the market-orientation 
of the satisfaction of wants by the princely court and the large urban 
households of vassals and major officials attached to it. 



2. Three Types: The "Consumer City" the 
"Producer City" the "Merchant City" 

The "princely city," that is, one whose inhabitants are direcdy or 
indirectly dependent on the purchasing power of the court and the other 
large households, is similar in type to other cities in which the pur- 
chasing power of other large consumers— and that means : of rentiers — 
determines the economic opportunities of the resident artisans and 
traders. These large consumers can be of very different types, depending 
upon the kind and sources of their incomes. They may be officials 
spending their legal or illegal revenues, or manorial lords and political 
power holders consuming their non-urban ground rents or other more 
politically determined incomes in the city. In both cases the city is very 
similar to the type of the "princely city" in that it depends upon 
patrimonial and political revenues which supply the purchasing power 
of the larger consumers. An example for a city of officials might be 
Peking, for a city of land-rent consumers Moscow before the abolition 
of serfdom. 

From these cases we must differentiate the only apparently similar 
case in which urban land-rents, based on the "monopoly of location"^ 
of urban land lots, are concentrated in the hands of a city aristocracy. 
Here the source of the spending power is the urban trade and commerce 
itself. This city type has been ubiquitous, especially in Antiquity from 
the beginnings up to the Byzantine period and also in the Middle Ages. 
The city is in that case economically not of a rentier type, but rather, 
depending upon the circumstances, a merchant or producer city, and 
those rents are a tribute exacted by the real-estate owners from the eco- 
nomically active population. But the conceptual differentiation of this 
case from that in which the rents stem from extra-urban sources should 
not cause us to overlook the historical interrelation of the two forms. 



I 2 I 6 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

Finally, the large consumers can also be rentiers consuming business 
incomes in the city — today mainly interest on bonds, royalties or divi- 
dends on shares; the purchasing power then rests primarily on revenue 
sources based on the (capitalistic) money economy. An example would 
be the city of Arnhem. Or it is based on state pensions and interest on 
government bonds, as in a "pensionopolis" like Wiesbaden. In these and 
many other similar cases one may speak of a "consumer city," for the 
residence of these* various types of large consumers is of decisive im- 
portance for the economic opportunities of the local producers and 
merchants. 

Conversely, the city may be a "producer city." The population , 
expansion and the purchasing power of this population would then 
depend, as in Esssen or Bochum, on the location there of factories, manu- 
factures or putting-out industries which supply outside territories. This 
is the modern type. In the Asian, ancient, and medieval type, it would 
depend on the existence of local crafts which ship their goods to outside 
markets. The large consumers on the local market are the entrepreneurs, 
•f they are locally resident — which is not always the case — , and the 
mass consumers are the workers and craftsmen. Another set of large 
consumers may be formed by the merchants and local landowners who are 
indirectly maintained by the city's productive activity. 

Besides a "consumer city" and a "producer city," we can also dis- 
tinguish a "merchant city," a type in which the purchasing power of 
the large consumers rests on the profits derived either from the retailing 
of foreign products on the local market (as in the case of the woolen 
drapers of the Middle Ages), or from the sale abroad of domestic 
products or at least of products obtained by domestic producers (as the 
herring of the Hanseatic towns), or finally from the purchase of foreign 
products and their resale abroad with or without local stapling 
C entrepot cities"). Very often all these activities are combined: the 
essence of the commenda and societas maris contracts of the Mediter- 
ranean countries 2 was that a tractator (travelling partner) carried to the 
Levantine markets domestic products purchased entirely or in part 
with capital entrusted to him by local capitalists — although often he 
may have journeyed entirely in ballast — and after the sale of these 
products returned with Oriental articles for sale on the domestic market; 
the profits were to be divided between tractator and capital-supplier 
according to a formula set in the contract. Thus the purchasing power 
and tax yield of the merchant city, like that of the producer city, and 
in contrast to that of the consumer' city, rest on the local economic 
enterprises. The economic opportunities of the shipping and transport 
trades and- of numerous small and large secondary activities are tied 



i ] Concepts and Categories of the City i 2 1 7 

up with those of the merchants, although only in the case of local retail 
sales do these benefits materialize entirely on the local market, while in 
long-distance trade a considerable part is realized abroad. A similar 
state of affairs prevails in a modem city which is the seat of the national 
or international financiers or of the giant banks (London, Paris, Berlin), 
or of large joint stock companies and cartels (Diisseldorf). Today, of 
course, it happens more than ever before that the larger part of fhe 
profits of an enterprise flows to localities other than that in which the 
producing plant is situated. Moreover, an ever increasing part of the 
gains is consumed by the recipients not at the metropolitan seat of the 
business headquarters, but in the suburbs, and increasingly even more 
in rural summer homes and international hotels. Parallel to these 
developments, the town centers tend to atrophy to mere business sec- 
tions, to "The City." 

It is not our intention here to produce the further casuistic distinc- 
tions and specialization of concepts which would be required for a 
4 s t rictly economic theory of the city. Nor do we need to stress that actual 
cities almost- always represent mixed types and hence can be classified 
only in terms of their respective predominant economic components. 



3. Relation of the City to Agriculture 

Historically, the relation of the city to agriculture has in no way 
been unambiguous and simple. There were and are "agrarian cities' 
(Ackerburgerstndie), which as market centers and seats of the typically 
urb^n trades are sharply differentiated from the average village, but in 
which a broad siratum of the burghers produces food for their own 
consumption and even for the market. Normally, to be sure, it would he 
true that the larger a city, the less likely it is that its inhabitants would 
dispose of farmland sufficient for their food needs— nor would they 
have the pasturage and forest utilization rights typical of the "village" 
The largest German city of the Middle Ages, Cologne, apparently fron. 
the very beginning almost completely lacked the Allmcnde (commons) 
which at that time was part of every normal village. But other German 
and foreign medieval cities owned, at the least, considerable pastures and 
woods which stood at the d',powl of their burghers. And the further to 
the south or back toward Antiquity one turns, the mare frequent 
becomes the presence of i:uge amounts of farmiand within die territory 
(Weichbildj of the towns, li today we arc quite correct in regarding 
the typical ''townsman" as .1 nian who does not y.riw his own food, the 



I 2 I 8 THE CITY (NON-UBGITIMATB DOMINATION) [ Ck. XVI 

contrary was originally true for the majority of typical cities (poieis) 
of Antiquity. We shall see that the urban "citizen" with full rights was 
in Antiquity, in contrast to the Middle Ages, identified precisely by the 
fact that he owned a kteros or fundus (in Israel: heleli); a full lot of 
arable land, which fed him.* The "citizens" of Antiquity were "agrarian 
burghers." 

Agricultural holdings in the hands of the large merchants were even 
more frequent both in the Middle Ages, when they were found more 
often in the south than in the north of Europe, and in Antiquity. In 
both medieval and ancient city states large land holdings are found, 
occasionally of quite exorbitant size, which might be under the political 
rule — or even the seigneurial property — of the municipal authorities of 
powerful cities in their official capacity, or the seigneurial possession of 
individual eminent citizens. As examples we might take the seigneurie 
of Miltiades on the Chersonese, or the political and seigneurial posses- 
sions of medieval urban aristocratic families such as those of the Genoese 
Grimaldi In Provence and across the sea/ As a general rule, however, 
these foreign estates and seigneurial rights of individual citizens were 
not the objects of the city state's economic policy, although a curiously 
mixed situation in which such properties were de facto guaranteed to 
the individuals by the city was bound to arise whenever the owners 
belonged to the most powerful patrician groups and had actually ob- 
tained these properties and held on to them only with the indirect help 
of the state power. The ruling group, in turn, might in that case share 
in the economic and political usufruct of such holdings. Such cases* 
were quite frequent in the past. 



4. The "Urhan Economy" as a Stage of 
Economic Development 

The relation of the city as the carrier of the craft and trading 
activities to the countryside as the supplier of food forms one aspect 
of that complex of phenomena which has been called the "urban 
economy" (Stadtwirtschaft), juxtaposed, as a special economic stage, to 
the "household economy" (Eigenwtrtschaft), on the one hand and the 
"national economy" (Voltewirtsckaft) on the other (or to a multiplicity 
of similar conceptual "stages"). 8 In this concept, however, categories 
relevant to measures of economic policy are fused with purely economic 
categories. The reason for this is that the mere facte of the crowding 
together of merchants and tradesmen and of the satisfaction of everyday 



i ] Concepts and Categories of the City i 2 i 9 

wants on ;T regular basis in the market do not by themselves exhaust 
the concept of the "city." If closed settlements are differentiated [from 
the countryside] only by the degree to which they supply themselves 
with agricultural goods or — which is not the same thing — by the 
relationship of agricultural production to non-agricultural earnings, and 
by the presence of markets, then we shall speak of artisan- or merchant- 
localities and of market hamlets, but not of "cities." Nor can the city 
be differentiated from the village by the fact that, beside being an 
agglomeration of habitations, it is in addition an economic organization 
(Wirtschaftsverband) with' its own landed property and a budget of 
revenues and expenditures, for the same is true also of the village, 
however great the qualitative difference may be. Finally, it was not a 
characteristic peculiar to the city alone that it, at least in the past, was 
both an economic organization and an organization regulating the 
economy (wirtschaftsregtdierender VerbancT). In the village, too, we 
find economic regulations: cultivation under compulsory common rules 
(Flurzwang), pasture regulations, export prohibitions for wood and 
straw, all of which constitute an economic policy of the organization as 
such. 

It is not the mere fact of regulation which differentiated the cities 
of the past from other types of setdements, but the kinds of regulations: 
the objects of regulatory economic policy, and the range of measures 
which were characteristic for it. The bulk of the measures of "urban 
economic policy" (Stadtwirtsckaftspolitik) were based on the fact that, 
under the transportation conditions of the past, the majority of all 
inland cities were dependent upon the agricultural resources of the 
immediate hinterland (a statement which, of course, does not hold for 
maritime cities — as shown by the grain policies of Athens and Rome), 
that the hinterland provided the natural marketing area for the majority 
of the urban trades, and finally that for this natural local process of ex- 
change the urban market place provided, if not the only, then at 
Jeast the normal locality, especially in the case of foods. This policy 
further took account of the fact that the predominant part of non- 
agricultural production was performed with craft technology, organized 
with litde or no capital in small shops employing strictly limited 
numbers of journeymen trained in long apprenticeship, and that, in 
economic terminology, it took the form of "wage work" or of "price 
work" for customers,* just as the sales of the local retailers were 
largely on custom orders. It was these naturally given conditions of the 
urban economy which the specifically "urban" economic policy at- 
tempted to stabilize by means of economic regulations in the interest 
of permanency and cheapness of the food supply and of stability of the 



I 2 2 O THE CITY ( NON-LEGITIMATE DOMINATION) [ Ch. XVI 

economic opportunities of artisans and merchants. However, as we shall 
see, economic regulation was not the sole object of the urban economic 
policy, nor did it always exist in those places where we find it in 
certain historical periods. In its full development it emerges only in 
periods of political domination by the craft guilds. Finally, it cannot be 
proved to be a transitional stage in the development of all cities. In any 
case, this economic policy does not represent a universal stage in the 
development of the economy. What can be stated is the following: The 
urban local market with its exchange between agricultural and non- 
agricul rural producers and local traders, its personal customer relation- 
ships, and its low-capital small shops, represents a kind of "exchange-, 
economy" counterpart to the "exchangeless" internal economy of the 
oikos, which draws on systematically allocated service prestations and 
commodity deliveries of dependent specialized production units and 
integrates these activities from the manor. The regulation of the ex- 
change and production conditions in the city represents the counterpart 
to the coordination of activities of the units combined in the economy 
of the oikos. 



5. The Politico-Administrative Conce-pt of the City 

The very fact that in these observations we had to employ categories 
such as "urban economic policy," "urban territory" and "urban authority" 
indicates that the concept of the "city" can and must also be analyzed ip 
rms of a series of categories other than the purely economic ones 
Jntherto discussed, namely, in terms of political categories. It is quite 
true that the initiator of the urban economic policy may be a prince in 
whose political territorv the city and its inhabitants belong. In this case, 
whenever a specifically urban economic policy exists at all, it is de- 
termined for the city and its inhabitants and not by it. However, this 
does not have to be the case, and even if it is, the city must still to 
some extent be a partially autonomous organization, a "community" 
(Geme'mde) with special administrative and political institutions. 

The economic concept of the city previously discussed must, at any 
rate, be clearly differentiated from the political-administrative concept. 
Only in the latter sense may a special urban territory be associated 
with it. A locality can be thought of as a city in the political-administra- 
tive sense even though it could not claim this name in the economic 
sense. The inhabitants of son*; medieval settlements with the legal 
status of "cities" derived ni;s;;-;'r:iths or more of their livelihood from 
agriculture, a far larger micron than those of many places with the 
Ieg.il status of ''villages.' <'■• ■'■:■.&•,'. the dividing iiiics '.■ok'.vr.rn such 



i ] Concepts and Categories of the City i 2 2 1 

"agrarian cities" and the "consumer," "producer," and "merchant" cities 
are completely fluid. But in all settlements which are differentiated 
administratively from the village and are treated as "cities " one point, 
namely the nature of land ownership, is as a rule quite different from 
that prevailing in the countryside. Economically speaking, this is due 
to the specific basis of the earning capacity of urban real estate: house 
ownership, to which land ownership is merely accessory. But from the 
administrative point of view, the special position of urban real estate 
is connected above all with divergent principles of taxation; at the same 
time, however, it is closelv connected with another trait which is 
decisive for the political administrative concept of the city and which 
stands entirely outside the purely economic analysis, namely, the fact 
that the city in the past, in Antiquity and in the Middle Ages, outside 
as well as within Europe, was also a special kind of a fortress and a 
garrison. At present this feature of the city has been entirely lost, and 
even in the past it was not universal. In Japan, for example, it was not 
the rule. One might, therefore, with Rathgen, 7 doubt the existence 
there of "cities" in the administrative sense. In China, by contrast, 
every city was surrounded with rings of gigantic walls. However, it is 
also true that many agricultural localities there, which were not cities 
in the administrative sense (in China this means, as we shall discuss 
later, that they were not the seat of state authorities), have at all times 
possessed walls. In some Mediterranean areas, as e.g. in Sicily, we find 
almost no one living outside urban walls, not even agricultural workers 
— a phenomenon due to century-long insecurity. By contrast, in old 
Hellas the polis of Sparta was remarkable for the absence of walls, but 
on the other hand it was in e most specific sense a "garrison-town," 
which despised walls precisely because it was the permanent open 
military camp of the Spartans. Although it is still uncertain how long 
Athens went without walls, it possessed in the Acropolis a rock- 
protected castle, as did probably all Hellenic cities except Sparta. In the 
same manner, Ekbatsna and Persepolis were royal castles with surround- 
ing settlements. The casde or wall, at any rate, normally were indispen- 
sable parts of Oriental as well as of ancient Mediterranean and medieval 
cities. 



6. Fortress and Garrison 

The c'ty was njithc: the sole nor the oldest Fortress. In disputed 
frontier territory anc! dvsring chronic sMfes of war cvny \illage fortifies 
itself. Under the constant danger of a!'. ;ck in the aa j ,i of the Elbe and 



12 2 2 THE CITY (nON-LBCITTMATB DOMINATION) [ Ck. XVI 

national form of a village extended along a road CStrassendorf), were 
fortified in the form of the hedge-enclosed circular village (Bundling) 
with a single entrance which could be locked and through which at 
night, the catde were driven into the center of the village. An alterna- 
tive form, hill retreats surrounded by ditches and banks, was wide-spread 
throughout the world, in Israelite East Jordan as well as in Germany; 
unarmed persons sought refuge there for themselves and their' cattle. 
The so-called "cities" of Henry I in the German East* were merely 
systematically established fortresses of this sort. In England during the 
Anglo-Saxon period, each shire had a burn (borough) after which it 
was named, and the guard and garrison services fell on certain persons 
or pieces of land as the oldest specifically "civic" burdens. If such 
fortresses did not stand empty in normal times, but were manned by a 
permanent garrison of guards or "burgmen" paid in money or in land, 
we have a phenomenon very similar to the Anglo-Saxon "garrison city" 
of Maitland's theory with "burgesses" (burgenses) as inhabitants. The 
burgess received his name from his political and legal position which, 
like the legal nature of the specifically "bourgeois" land and house 
property, was determined by the duty of maintaining and guarding 
the fortifications.* 

However, historically, neither the palisaded village nor the emergency 
fortification are the primary forerunners of the city fortress, but rather 
the seigneurial castle: a fortress which was inhabited by a lord with 
his warriors, subordinated to him either as officials or as his personal 
following, together with their families and servants. 

The construction of military castles is very old, doubtlessly older' 
than the war chariot and the military use of the horse. The war 
chariot has everywhere at some time determined the development of 
knighdy and royal warfare: in ancient China of the period of the 
classic songs, in the India of the Vedas, in Egypt and Mesopotamia, in 
Canaan and Israel at the time of the Song of Deborah, in Greece 
of the Homeric epics, and among' the Etruscans, Celts, and Irish. 
Similarly, casde construction and castle-seated princes were diffused 
universally. The early Egyptians sources knew the casde and castle 
commanders, and we can be almost certain that these casdes originally 
housed just as many petty princelings. In Mesopotamia the development 
of the later territorial kingdoms was preceded, to judge by the oldest 
documents, by a castle-seated princedom such as existed in western 
India at the time of the Vedas and such as is probable for Persia at 
the time of the oldest [Zoroastrian] Gathas. In northern India, on the 
Ganges, the castle apparendy was universally dominant during the 
period of political disintegration; the old Kshatriya, whom the sources 



i ] Concepts and Categories of the City 1223 

show to have had a peculiar intermediary position between the king 
, and the nobility, was obviously a castle-seated prince. Castle-dwelling 
princedoms existed in Russia at the time of Christianization [a.d. 988] 
and in Syria during the dynasty of the Thutmose 10 as well as at the 
time of the Israelite confederation (Abimelech), and even old Chinese 
literature gives fairly certain evidence of their original existence. The 
Hellenic and Anatolian sea-casde must surely have been as universal 
as piracy: the unfortified palaces of Crete almost certainly, owe their 
existence to an interim period of very unusual pacification. Casdes like 
that of Decelea," which was so important in the Peloponnesian War, 
were originally the fortresses of noble families. The development 
of a politically autonomous nobility in the Middle Ages begins in Italy 
with the construction of casteUi, and the independence of the vassals in 
northern Europe starts with their massive casde construction; von Below 
draws attention to the fact that even in more recent times individual 
membership in the regional noble estate (Jjmdstanckchaft) in Germany 
was contingent upon the possession by the family of a casde, even if it 
he only the most decrepit ruin of one. 1 * Possession of a casde, of course, 
signified military domination over the countryside. The only question 
was who should exert it — whether the lord of the casde for himself, 
or a confederation of knights, or a ruler who could rely on the trust- 
worthiness of the vassals, ministeriales, or officers whom he placed in 
charge of the fortification. 



7. The City as a. Fusion of Fortress arid Market 

In the first stage of its development into a special political form, 
the fortified city either w-s itself a castle, or it contained or lay 
adjacent to a castle, the fortress of a king, a nobleman, or an association 
of knights. Such lords either resided in the fortress themselves, or they 
maintained a garrison of mercenaries, vassals, or bondsmen in it. In 
Anglo-Saxon England the right to possess <\ h;w (a fortified house) in 
a bttrh was bestowed by charter on certain landowners of the nearby 
countryside, just as in Antiquity and in medieval Italy the city-bouse of* 
the nobleman was held in addition to his rural casde. As "burghers" 
Qrurgenses), the inhabitants of the casde or the residents living just 
outside the walls — sometimes all of them, sometimes only special strata 
— owed the performance of definite military duties to the military lord of 
the city. These might consist in building and repairing the walls, in 
guard duty, or in defense and other military services, such as the carrying 



1224 THE CITY (non-legitimate domination) [Ck. XVI 

of messages and the provisioning of the garrison. The burgher was in 
this case a member of his status group only by virtue (and to the extent) 
of his participation in the military association of the city. Maitland 
brought out this aspect with special clarity for the case of England: the 
houses of the hurh are in the possession of people whose primary duty 
it is to maintain the fortification; this constitutes the difference from the 
village. The royally or seigneurially guaranteed "peace of the market," 
from which the u-'oan market benefits, is paralleled by a military "peace 
of the borough." 13 The pacified castle and the military-political centei 
of the city: the drill field and assembly place of the army and hence of 
the citizenship, on the one hand, and the pacified economic market of 
the city on the other, often stand in plastic dualism beside one another. 
It is true that they are not always spatially separated; thus, the Attic 
pmyx 1 * was much younger than the agora, which origsnallv [probably] 
served for both the economic transactions and the political and religious 
acts. But in Rome the comitiwn and the campus Martins 1 '' were always 
separate from the economic fora, and in the Middle Ages the piazza del 
campo in Siena (a tournament plaza- still used today for the annual race 
between the wards of the city) in front of the municipal palace was 
distinct from the mercato at the rear. Analogously, in Islamic cities the 
kasbch, the fortified camp of the warriors, is spatially separate from the 
bazaar, and in southern India the political "city of honoratiores" stands 
apart from the economic city." 8 

The problem of the relationship between the garrison, the political 
citizenry of the fortress, on the one hand, and the civilian, economically 
active population, on the other hand, is frequently exceedingly complex, 
but it is always of crucial importance for the constitutional history of 
the city- The following is clear: wherever a casde existed, artisans came 
in or were brought in to satisfy the needs of the seigneurial household 
and of the warriors; the purchasing power of a military court and the 
protection which it guarantees always attracted merchants and, further- 
more, the lord himself was always interested in attracting these classes 
since they put him in a position to procure money revenues, either by 
taxing trade and the crafts or by participating in them through capital 
advances, or by conducting trade on his own account, or even by 
monopolizing it. The lord of a co.-israi castle could ah,v;ivs, as shipowner 
or ruler of the n.irt nnx-ure is sh t<: in violent or iieaceful "sea-bt'M.'" 
prefhs. [;- '<. also clear th.it hi? reslojnt follower ancl v.i:;sijh were in the 
same position i'l: he ij^rinitti-tl ihxiu to par;ake ;>f 0.;\':.t ■:h::r;ce?, ■ -.ith'-r 
v-'>lut:i*>ti!v or und:?: i.oiripub'.jfin because of hi? f'kpo:.:.b'*j.f'." upon ?!*£'ir 
gO^J w.ll. On ;; vase ;■ lij^nt fr >m an cariv Hclleire iStv, Cj-rcne. vc 
St:-" i h ' ' k ; n £" : : :> S 1 1 f i : ; o in : h t \ '. : e i ph ' f \ j* of sitp li icv . t h o i ■ ; ' ".' ; < > i iovr f; ■:' <ed , ' "' 



i ] Concepts and Categories of the City 1225 

and in the earliest Egyptian records a trading fleet belonging t,o the 
Pharaoh of Lower Egypt is reported. 

A process that can he observed ail over the world, but especially in 
coastal localities (not in "cities" alone) where the trade middlemen are 
easily controlled, was that the interest of the resident warrior families 
in participation in the profits from trade would grow, and so would 
their power to assert this interest, until they eventually shattered the 
monopoly (if it had existed) of the local chieftain or prince of the 
castle. If this occurred, the prince was usually reduced to the position 
of a primus inter pares, and perhaps ultimately to an approximately 
equal member of the urban gentes, elected for a short period only and 
with severely restricted powers, which he then had to .share with the 
patrician "families" owning urban land and participating either in 
peaceful commerce — in person or merely with their capital (in the 
Middle Ages frequently in the form of the commenda) — or in the 
bellicose pursuits of piracy and maritime war. This process, in the form 
pf the gradual emergence of an office tenure restricted to one year, can 
be observed in the ancient coastal cities from the Homeric period on 
and, in very similar form, several times in the early Middle Ages. In- 
stances are the evolution of the dogedom in Venice, and similar develop- 
ments in ether typical trading cities where, however, the composition 
of the opposing parties varied greatly, depending upon whether the 
urban seigneur was a royal count or vicomte, a bishop, or some other 
notable. In this context it is necessary always to differentiate between 
the urban capitalist trading "interests"— the financiers of commerce 
and typical honoratiores of the early ancient and early medieval city — 
and the actual "operators" continuously engaged in the trading activities, 
the merchants proper, native or naturalized. This conceptual differentia- 
tion must be observed even though in fact these two strata frequently 
tend to blend into each other. However, with this we already anticipate 
points to be discussed later. 

In landlocked territory the beginning and end points or intersections 
of river and caravan routes — such as Babylon, for instance — can become 
the locations of similar developments. There the temple priest or the 
priesdy lord of a city would sometimes offer competition to. the secular 
prince of the castle or the city. The temple districts of widely known 
gods provide a religious sanctuary to inter-«thmc — and hence politically 
unprotected — trade, so that, in their shadow, city-like settlements can arise 
which find their economic sustenance in the purchasing power of the 
temple revenues, just as the princely city lives from the tributes to the 
prirfce. 

Whether, and to what extent, the prince's interest in money 



12 2 6 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

revenues from privileges granted to craftsmen and traders pursuing a 
taxable occupation independent from the lord's court predominated over 
his interest in satisfying his needs to the largest extent from the produc- 
tion of his own labor force, and in monopolizing trade in his own 
hands, depended upon the circumstances of the individual case; he also 
had to consider, when he was attracting strangers through the offer of 
such privileges, the interests and the important tax- and service-yielding 
economic capacity of his resident political and manorial dependents. To 
these developmental variations must be added the variations of the 
politico-military structure of the "ruling organizations" within which 
the founding or development of the city took place. These give rise to 
certain phenomena which we must now consider. 



8. The "Commune' and the "Burgher": A Survey 



A. FEATURES OF THE OCCIDENTAL COMMUNE 

Not every "city" in the economic sense, nor every garrison whose 
inhabitants had a special status in the political-administrative sense, has 
in the past constituted a "commune" (Gemeinde). The city-commune 
in the full meaning of the word appeared as a mass phenomenon only 
in the Occident; the Near East (Syria, Phoenicia, and perhaps 
Mesopotamia) also knew it, but only as a temporary structure. Else- 
where one finds nothing but rudiments. To develop into a city- 
commune, a settlement had to be of the nonagricultural-commercial 
type, at least to a relative extent, and to be equipped with the following 
features; i. a fortification; 2. a market; 3. its own court of law and, at 
least in part, autonomous law; 4. an associational structure (Verbands- 
charakter^) and, connected therewith, 5. at least partial autonomy and 
autocephaly, which includes administration by authorities in whose 
appointment the burghers could in some form participate. In the past, 
such rights almost always took the form of privileges of an "estate" 
(Stand*); herice the characteristic of the city in the political definition 
was the appearance of a distinct "bourgeois" estate. 

B. LACK OF COMMUNAL FEATURES IN THE ORIENT 

It should be noted that if the above definition were to be strictly ap- 
plied, even the cities of the Occidental Middle Ages would qualify only 
in part — and those of the eighteenth century only to the smallest part 



i ] __ Concepts and Categories of the City i 2, 2. 7 

— as true "city-communes." But the cities of Asia, with the possible ex- 
ception of very isolated cases, would not, so far as we know, fit this 
classification at all. It is tnie that they all had markets and that they also 
were fortresses. In China — but not in Japan — all large seats of trades 
and commerce and most of the small ones were fortified. The same is 
true for similar towns in Egypt, the Near East, and India. Separate 
court districts for the larger trade and craft towns of these countries 
were also quite frequent. The seat of the administrative authorities of the 
large political associations was, in Chira, Egypt, the Near East, and in 
India, always in these towns — a statement which does not apply to pre- 
cisely the most typical Occidental cities of the early Middle Ages, es- 
pecially those of the Nprth. However, the Asian cities did not know a 
special substantive or trial law applicable to the "burghers" by virtue 
of their membership in the city-commune, or a court autonomously 
appointed by them. They experienced an approximation only in the 
caseof guilds or (in India) castes which, if they primarily or exclusively 
1 inhabited a single city, might then develop a special law and their own 
courts. But from the point of view of the law, the urban seat of these 
organizations was purely accidental and of no significance. Autonomous 
administration of the city was unknown or merely vestigial. Most im- 
portantly, the associational character of the city and the concept 
of a burgher (as contrasted to the man from the countryside) never 
developed at all or existed only in rudiments. The Chinese townsman 
was legally a member of his sib and hence of his native village, where 
the temple of his ancestor-cult stood and with which he carefully 
upheld his association. Similarly, the Russian member of a village com- 
munity who earned his living in the city remained a "peasant" in the 
eyes of the law. The Indian townsman was, in addition, a member of 
his caste. 

It is true that, as a rule, town dwellers were also members of local 
professional associations, of guilds and crafts with a specifically urban 
location, and that they were members of the_ urban administrative dis- 
tricts, city wards, and blocks into which the city was divided by the 
local authorities — and that in these capacities they had definite duties 
and, at times, even certain rights. The city ward or block, as a collective 
entity, could in particular be made liturgically responsible for the se- 
curity of persons and for other police purposes. For this reason they 
might be organized into communes with elected officials or hereditary 
elders, as in Japan, where we find one or several civilian administrative 
agencies (machi-hugyo) superordinated to the self-administration of the 
city blocks." But a special status of the town dweller as a "citizen," in 



12 2 8 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

the ancient and medieval sense, did not exist and a corporate character 
of the city was unknown. Of course, the city as a whole might form a 
separate administrative district, just as it did in the Merovingian and 
Carolingian realms. Yet, in strong contrast to the medieval and ancient 
Occident* we never find the phenomenon in the Orient that the au- 
tonomy and the participation of the inhabitants in die affairs of local 
administration would be more strongly developed in the city — that is, 
in nonagricultural-commerd'al and relatively large localities — than in 
the countryside. In fact, as a rule die very opposite would be true. In 
China, for example, the confutation of the elders was practically all- 
powerful in the village, and the tnotai 1 * therefore had to cooperate with 
it even though it had no standing in the law. In India, too, the village 
community had very far-reaching competencies, and the Russian mir 
ruled almost autonomously within its bailiwick until the bureaucratiza- 
tion under Alexander III. In the entire Nfr Eastern world the elders 
(in Israel: zefenim), 1 ' originally those of the sibs and later the chiefs 
of the patrician clans, were the- representatives rnd administrators of the 
[non-urban] localities and the local courts. In the Asian city this could 
never occur, because it was usually the seat of the high officials or of the 
prince himself and thus directly under the cudgel of their military body- 
guards. The [Asian] city was a princely fortress; hence it was ad- 
ministered by officials (in Israel: 5«rim) 10 and military officers of the 
prince, who also held all judicial powers. The dualism of the officials 
and the elders can be clearly observed in Israel of the Time of Kings. 
The royal official always gained the upper hand in the bureaucratic 
monarchies. To be sure, -he was not all-powerful; in fact, he often had 
to take account of popular opinion to an amazing degree. The Chinese 
official, in particular, was quite powerless vis-a-vis the locil organiza- 
tions, the sibs and occupational associations, if they formed a common 
front on a particular issue; whenever they seriously combined in opposi- 
tion, he lost his office. Obstruction, boycotts, closing of shops and refusal 
to work were common reactions of the artisans and merchants to meas- 
ures of oppression, which set limits to the power of the officials. How- 
ever, these limits were of a completely indeterminate kind. Guilds or 
other occupational associations, on the other hand, had certain com- 
petencies, in China as well as in India, or at least claimed them in such 
a way that the officials had to reckon with them. The heads of these asso- 
ciations at times exercised far-reaching coercive powers even over non- 
members. Normally, however, these were only competencies or factual 
powers of a ■particular association with respect to particular issues touching 
on its concrete group interests. But ordinarily, there existed no association 
which could represent the commune of burghers as such. The very con- 



i ] Concepts and Categories of the City 1229 

cept of an urban burgher and, in particular, a specific status qualification 
of the burgher was completely lacking. It can be found neither in China 
nor in Japan or India, and o.Jy in abortive beginnings in the Near East. 
In Japan, the status structure was purely feudal: the samurai 
(mounted) and the kasi (unmounted servirors) were juxtaposed to the 
peasants (no) and to the merchants and craftsmen, some of whom were 
organized in occupational associations. The concept of a "bourgeois" 
estate (Burgertum), however, was as absent as was that of a "city com- 
mune." The same was true of China in its feudal period. Since the 
beginning of bureaucratic domination, however, we find the literati, 
with their various academic degrees obtained by examination, confront- 
ing the "illiterate" strata; economically privileged guilds of merchants 
and occupational associations of artisans also appear at this time. But 
here, too, the notions of the "burgher" and the "city commune" are 
missing. In China as well as in Japan, "self-administration" was a fea- 
ture of the professional associations and of the villages, but not of the 
4 cities. In China the city was a fortress and official seat of the imperial 
agencies; in Japan the "city" in this sense was completely unknown. In 
India the cities were royal seats or official centers of the roy$l adminis- 
tration as well as fortresses and market centers. We also find merchant 
guilds and the castes, to a large extent coterminous with the occupa- 
tional associations, both of which enjoyed considerable autonomy, above 
all in the fields of legislation and administration of justice. But the 
hereditary caste structure of Indian society, with its ritual segregation, 
of the occupations, precludes the emergence of a "bourgeoisie" as weH 
as that of a "city commune." Although several merchant castes and very 
many craft castes with innumerable subcastes existed (and still exisO* 
they cannot be equated as a group with the Occidental burgher estaie, 
nor could they themselves combine to form something corresponding 
to the medieval craft-ruled city, for caste barriers prevented all inter- 
caste fraternization. It should be noted, however, that in the period of 
the great religions of salvation we do in fact find in India that the 
guilds, headed by their hereditary elders (shreshtha'), combine into an 
association in many cities; residues of this still exist at present in some 
cities (Ahmedabad) which are led by a common urban shreshth cor- 
responding to a Western lord mayor. There also existed, in the period 
prior to the large bureaucratic kingdoms, some cities which were po- 
litically autonomous and were ruled by a local patriciate recruited from 
those families who served in the army with elephants. 20 * But all this later 
disappeared almost completely; the triumph of ritual caste barriers shat- 
tered the guild association, and the royal bureaucracy in alliance with 



I23O THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

the Brahmans swept away all such budding developments except for 
the remnants which survived in north-western India. 

In Near Eastern and Egyptian Antiquity the cities were fortresses 
or official administrative centers with royal market privileges. However, 
during the domination of the great territorial kingdoms they lacked au- 
tonomy, municipal organizations, and a privileged burgher estate. Dur- 
ing the Middle Kingdom in Egypt we find office feudalism, and during 
the New Kingdom bureaucratic administration by scribes. The "city 
privileges" were grants to the feudal or prebendal holders of the powers 
of office in these localities, similar to the privileges granted to the bishops 
in medieval Germany, but not grants to an autonomous "bourgeois" 
estate. Not even the beginnings of a "city patriciate" have so far been 
found. ^ 

In Mesopotamia and Syria, and above all in Phoenicia, by contrast, 
we find in the early period the typical city kingdoms of the shipping 
and caravan markets, sometimes ecclesiastic, but more often of a secu- 
lar character, and later, which is also typical, the rising power of the 
patrician families in the "city hall" (bitu in the Tel-el-Amarna tablets) 
of the days of chariot warfare. 21 The Canaan league of cities was an 
association of the town-dwelling knighthood of war-charioteers; this 
stratum held the peasantry in debt-bondage and clientship, as also in 
the early period of the Hellenic polis. Relationships seem to have been 
similar in Mesopotamia where the "patrician," the landowning citizen 
with full rights and the economic resources for military service, is dif- 
ferentiated from the peasant and the capital cities were granted im- 
munities and liberties by royal charter. However, with the mounting 
power of the military kingdom this disappeared here, too. Later, neither 
politically autonomous cities and a burgher stratum of the Occidental 
type nor a special urban law alongside the royal law can be found in 
Mesopotamia, Only the Phoenicians retained the city state under the 
domination of a landed patriciate which employed its capital in trade. 
The Phoenician coins with the inscription 'am $6r and 'am Karthadait 
can hardly be used to prove that the demos dominated in Tyre and 
Carthage; 21 if this should nevertheless have been the case, the period 
involved would have to be a rather late one. 

In Israel, Judah became a city state. But the zekentm (elders), who 
in the early period had led the administration of the cities as heads of 
the patrician clans, were pushed into the background under the rule of 
the kings; the gibborim (knights) became royal servitors and soldiers, 
and precisely in the large cities — in contrast to the countryside — the 
administration came to be conducted by the royal sarim (officials). 18 It 



t ] _ Concepts and Categories of the City 1:31 

is only after the Exile that the "congregation" (JkahaV) or the "brother- 
hood" Qteher) on the basis of a ritual segregation makes its appearance 
as an institution — but by that time it was under the hierocratic rule 
of the priestly clans." 



C. PRE-COMMUNAL PATRICIAN CITIES MECCA 

Nevertheless, it is in this area, on the Mediterranean littoral and on 
the Euphrates, that we first find phenomena analogous to the ancient 
polis, at a stage of development about equivalent to that of Rome at the 
time of the immigration of the gens Claudia [5th century B.C.]. Author- 
ity is always in the hands of an urban patriciate, whose power rests 
on monetary wealth gained in trade and invested in landed property, 
enslaved debtors and'purchased slaves, and on their military training in 
knightly warfare. The patriciate would often be rent by bitter intramural 
feuds; on the other hand, its clans could live in several cities at once 
'and form interlocal alliances. Headed by a king as primus inter pares, 
or by shofetim™ or zekenim with a position similar to that of the con- 
futes at the head of the Roman nobility, such patrician groups were 
always threatened with the power seizure and tyrannis of'a charismatic 
war hero supported by mercenary bodyguards (Abimelech, Jephthah, 
David). sn Prior to the Hellenistic period, this stage of development was 
nowhere surpassed, or at least not permanendy. 

The cities of the Arabian coast at the time of Mohammed seem 
also to have been arrested at this stage, which persisted in the Islamic 
cities wherever the autonomy of the city and its patriciate was not, as 
in the large territorial states, completely destroyed by the monarchy. 
Very often, however, the ancient and Oriental conditions appear to 
have been preserved under Islamic rule. We then find the urban patri- 
cian families retaining a rather unstable autonomy vis-a-vis the princely 
officials. The mainstay of the patriciate's power position was its wealth, 
derived from participation in the urban economic opportunities and 
usually invested in land and slaves. Even without formal legal recogni- 
tion, the princes and their officials had to reckon with this power of the 
patriciate, just as the Chinese taotai had to reckon with the obstruction 
of the village clan elders and the merchant guilds and other associations 
of the cities. However, this strength of the patrician clans did not gen- 
erally or necessarily cause the city to consolidate into a separate and 
independent association; in fact, frequendy the very opposite occurred. 

We shall illustrate this with an example. The Arab cities — Mecca, 
for instance — were typical clan towns all through the Middle Ages and 



12 3 2 THE CITY (NON -LEGITIMATE DOMINATION) [ Ch. XVI 

almost up to the present. Snouck Hurgronie's graphical description" 
shows the city of Mecca surrounded by the bilads [territories]: the 
seigneurial estates of the individual dewis, the Hasanid sib and other 
noble sibs descended from [Mohammed's son-in-law] Ali. The various 
estates of different clans, which were settled with peasants, clients and 
protected Bedouins, lay intermingled. A dewi was any clan which could 
claim a "sherifian" ancestor. 28 The She " [of Mecca] himself — since 
A.n. 1 200 always a member of the Alidic branch descended from 
Qatadah [ruled ca. a.d. 1201-1221] — should legally have been ap- 
pointed by the Caliph's governor, who was often a man of uhfree birth 
and under Harun al Rashid once a [freed] Berber slave; in fact, how- 
ever, he obtained his position from the dewi chiefs residing in Mecca, 
who selected a member of the qualified family for the post. For this 
'reason — and because the residence in Mecca offered the chance to par- 
ticipate in the exploitation of the pilgrims — the clan heads (the emirs) 
lived in the city. Among them there usually existed certain "ties," i.e., 
agreements for preserving the peace and dividing the spoils. But these 
"ties" could at any moment be broken, and this initiated feuds within 
as well as outside of the city in which slave troops were employed. The 
defeated would be exiled from the city. Nevertheless, the community 
of interest between the hostile families against outsiders survived the 
feuds, and the victor, lest he be threatened by a revolt of his own parti- 
sans, would have to observe the courtesy of sparing the goods and the 
lives of family and clients of the defeated exiles. 

In more recent times, the following official authorities have existed ' 
in Mecca: 1. Largely on paper, the collegiate administrative council 
(the mejlis) installed by the Turks; 2. As an effective authority, the 
Turkish governor, who had taken over the position of the earlier "lord 
protector" (in former times this had usually been the ruler of Egypt); 
3. The four kadis of the orthodox rites, 2 " always noble Meccans, of 
whom the most eminent^the Skafi'i one — has for centuries come from 
the same family, appointed by the Sherif or nominated by the lord 
protector; 4, The Sherif himself, at the same time the head of the cor- 
poration of the urban nobility; 5. The craft guilds, foremost of which 
was the "craft" of the pilgrim guides, followed by the butchers, grain 
merchants, and others; 6. The city wards with their elders. These au- 
thorities competed with each other in many ways without firmly esiab- 
lished jurisdictions, A plaintiff in a legal suit would select that authority 
which appeared most favorably inclined to him or which seemed to be 
able to bring most power to bear on the accused. The governor could 
never prevent an appeal to the kadi, who competed with his jurisdiction 



i ] _ Conce-pts and Categories of the City , i 2 3 3 

in all matters touching on religious law. The Sherif was accepted as the 
real authority by the indigenous population, and especially in all matters 
concerning the Bedouins and the pilgrim caravans the governor was 
utterly dependent upon his good will. Finally, here as in other Arabic 
areas the corporation of the nobility was of decisive importance pre- 
cisely in the cities. 

We are reminded of Occidental developments when we hear that 
in the ninth century, when the Tulunids and the Saffarids fought in 
the streets of Mecca, the position taken by the richest guilds (those of 
the butchers and the grain merchants) could decide the outcome of 
the conflict. 30 At the time of Mohammed, by contrast, only the attitude 
of the noble Quraysh families would have been of any military and po- 
litical significance. Nevertheless, it never came to a guild regiment. The 
slave troops of the urban noble families, maintained from their shares 
in the [pilgrim trade] profits, must have safeguarded the predominant 
position of the clans time and again, just as in the medieval Italian 
cities power tended ever again to gravitate into the hands of the knightly 
families, the wielders of military power. Any association of the kind 
that might have united the city into a corporative unit was lacking in 
Mecca, and this constitutes the characteristic difference from both the 
ancient synoikized poleis 31 and even the earliest medieval Italian 
comune. Apart from this, however, we can regard these Arabian condi- 
tions, making allowance for the specifically Islamic traits or transposing 
them into their Christian equivalents, as quite typical also for Occi- 
dental cities, in particular for the sea-trading ones, of the period before 
the rise of the communal association. 

All safely founded information about Asian and Oriental setdements 
which had the economic characteristics of "cities" seems to indicate that 
normally only the clan associations, and sometimes also the occupational 
associations, were the vehicles of organized action (yerbandshindeln'), 
hut never the collective of urban citizens as such. Transitions, of course, 
are fluid here too. But this statement holds precisely for the largest 
setdements, which sometimes embraced hundreds of thousands, and 
even millions of inhabitants. In medieval Christian Constantinople, the 
representatives of the city wards (which also financed the circus races, 
as is still the case for the horse races of Siena) were the agents of the 
party formations — the Nika insurrection under Justinian was a product 
of this type of local party division. 3 * And in the Constantinople of the 
Islamic Middle Ages — i.e., up into the nineteenth century — merchant 
guilds and corporations are the only representatives of bourgeois inter- 
ests. Besides them we find the purely military associations of the Janis- 



1234 ™ E CITY (non-legitimate domination) [ Ch. XVI 

saries and the Spahis and the religious organizations' of the Ulemas 
and the Dervishes, but no general corporation of the burghers. In late 
Byzantine Alexandria the situation was similar insofar as only the 
burgher militias of the individual city wards seem to have existed as 
organized bourgeois powers beside the competing dominant powers: 
the Patriarch who relied on the strength of his very sturdy monks, and 
the Governor who was supported by a small garrison. Within the wards, 
rival circus parties of the "Greens" and the "Blues" represented the 
leading organizations. 



NOTES 

Unless otherwise indicated, all notes in ch. XVI are by Wittich. 

i. This chapter was first published separately after Weber's death in AfS, 
vol. 47 (1921), 621-772, under the tide "The City. A Sociological Investiga- 
tion." In the fourth German edition of Wirtschaft und Geselhchaft it was given 
the title "Non- Legitimate Domination. The Typology of Cities" which appears 
in Weber's first outline plan for the work. We use a compromise title since the 
essay has "become well known as "The City" in an earlier translation, "Non- 
Legitimate Domination" (wicfe (legitime Herrschaft') refers to what was for Weber 
the decisive feature of the Occidental city, observable already in Antiquity: Its 
break with the ruler's traditional legitimacy, and the substitution of authority 
Qierrscka.fi) based on various types of usurpatory consociations of the ruled 
(demos, plebs, comune, popolo, coniuratio, etc.), Cf. especially infra, i25of., and 
"Politics as a Vocation," in Gerth and Mills, From Max Weber, 84. 

2. On the medieval forms of partnership, commenda and societas maris, as 
well as on the "sea loan," cf. Weber, Handelsgesellschaften, 323-44; id., Eco^ 
nomic History, 3 $8f; Cambridge Economic History of Europe, III, 49-59- 

3. Cf. Economic History, 243; Ancient Judaism (henceforth AJ), 73, 

4. For the curious story of the establishment of the elder Miltiades, an 
Athenian patrician of the Peisistratid period (6th century B.C.), as "tyrant by 
invitation" of the Thracian Chersonese (the Gallipoli Peninsula on the Dardanelles 
Straits), 'see Herodotus' Histories, vi:34fF. The Philaid family held its dominions 
there, which Weber frequently mentions, until the Persian wars of the 5th cen- 
tury, when the younger Miltiades, the later victor of Marathon, was expelled by 
the invaders. — The Grimaldi overseas possessions were in southern Italy and 
Sicily, where the family was granted large estates by the Angevin rulers of the 
kingdom of Naples. In Provence, of course, they still rule Monaco. 

5. Cf. Part One, ch. II, n. 24. 

6. For the definitions of "wage work" and "price work," see Part One, ch. 
II: 19. In the former case, customers supply the raw materials, while in the latter 
they are provided by the producer, together with the instruments of production. 
The terminology is that of Karl Biicher. 

7. Karl Rathgen, Japans Volkswirtschaft vnd Staatskaushalt (Leipzig: 
Duncker & Humblot, 1 89 1 ), 47-49. ( W) 

8. On the nature of the "cities" (.urbes) founded by King Henry the Fowlei 
(r. 919-936) in Saxony, cf. Frederic William Maitland, Domesday Book and 
Beyond (Cambridge: The University Press, 1897), 189 and the references given 



i ] Concepts and Categories of the City 1235 

there; C. Rodenberg, "Die Stadtegrtindungen Heinrichs I.," Mitteilungen des 
Institute fur osterreichiscke Geschichtsforschung, XVII (1896), 161-67. 

9. Maitland, op. cit., 172-219, and the same author's Township and 
Borough (Cambridge: "The University Prpss, 1898), 36-52, 209-211; Julius 
Hatschek, Englische Verfassungsgeschichte (Munich: Oldenbourg, 1913), 104ft. 

10. The Egyptiart XVIII Dynasty, ca. 1 540-1 300 B.C. Especially Thutmose 
II (1479-1427) and IV (around 1400) conducted long campaigns in Syria. 

11. On the pass leading over the east end of'Mt. Pames. Because it com- 
mands the entrance to the Attic plain, it was seized and fortified by <-ve Spaitans 
as a base for forays into Attica during the later years of the Peloponnesian War 
(413-404 b.c). On the clan of Deeelea, see below, sec. Hi, n. 39. 

1 2. Georg von Below, "Zur Entstehung der Rhterguter," in his Terriiormm 
und Stadt (Munich: Oldenbourg, 1900), 95-162. 

13. Maitland, Domesday Book and Beyond, 189-195; on "market-peace" and 
"borough-peace," 193. 

[4. A flat- topped, hill below the Athenian Acropolis which probably from the 
fifth century b.c. served as the place of the political assemblies; hence also the 
name of the popular assembly. 

15. The assembly, respectively, for the Roman people in its civilian-tribal 
(comitia curiata) and military Qcomitia centuriata) formations. 

i 5a. For the Indian case, cf. Weber's observations in his "Hinduismus und 
Buddhismus," GAzRS II, 85 n. 1 (English in Religion of India, fyt)- 

16. This famous export article of the (North African) Cyrenaica was a plant, 
the milky juice of which yielded a spice and medicine highly prized by the An- 
cients. For a reproduction of the sixth century drinking bowl which shows King 
Arkesilaos II of Cyrene (ca. ;6o b.c.) on his throne, keeping tab on the weigh- 
ing and loading of silphion bales, see Victor Ehrenberg, The People of Aristoph- 
anes: A Sociology of Old Attic Comedy (New York: Schocken Books, 1962), 
plate X(a). 

17. Cf. Rathgen, Japam Volkswirtschaft, op. cit., 45?-, 51- 

18. Taotai: circuit intendant— a travelling administrator responsible for a 
territorial unit intermediate between county and province. 

19. Zekentm: see A), i6ff, 

20. Sarint: see A), i8ff. for more detail on these royal officials and the con- 
flict between royal and patrician administration in early Israel. 

aoa. On the guild-sJtmsJitft (or sheth) of Ahmedabad in Gujarat, India, see 
E. Washbum Hopkins, "Ancient and Modern Hindu Guilds" in his India Old and 
N«w (N?w York: Scribner's, 1901), 169ft., esp. i78f.; also GAzRS II, 53, 
86, 89, 105 (Religion of India, 51 , 87, 90, 107). On the council of the elephant- 
' supplying notables in Vaicali Q), cf. GAzRS II, 88 (flel of India 89). 

21. On bittt in the Tel-el-Amarna tablets, see also A], 14^ and 430E, notes 
12-13. 

22. The legends on the coins can be translated as "people (demos') of Tyre" 
and "people (demos) cf Carthage." (W) 

23. On the status of the zekenim, gibborim and sarim in the early Israelite 
cities, cf. A}, 16-20. 

24. On -the ritualistically exclusive kahal of Ezra and Nehemiah (mid-fifth 
century b.c), cf. A], 358ff, and on the heber of the Pharisees, ibid., 385-91. 

25. Shofetim, "judges," were the Phoenician senior magistrates in Tyre, 
Carthage and Marseilles. 

26. For the power seizures of Abimelech and jephthah with the help of 



I236 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

"hired vain and light persons," cf. }udg, 9 and 11; for David's rise as an army 
leader posing a challenge to the king, I Saint. 19-31. 

27. Christiaan Snouck Hurgronje, Mekka, Vol, I: Die Stadt und ihre Herren 
(denHaag: Nijhoff, 1888), ch. 3, passim and esp. 11 2-1 18. 

28. The term sherif, originally meaning "nobleman," eventually became re- 
stricted to -the numerous Alid descendants of the Prophet; this is the meaning 
used here. Cf. Snouck Hurgronje, op. tit., s6f. This meaning should be distin- 
guished fro™ the Sherif Cor prince) of Mecca.. 

29. On the four basic schools of law, the Anasi, Hanaft, Shaft' i, and Havhdi 
schools and their significance in Islam, cf. Selected Works of C. Snouck Hwr- 
gronje, ed. G H. Bousquet and J. Schacht (Leiden: Brill, 1957), jiff. 

30. In 883 troops and representatives of the Egyptian and the Persian ruling 
dynasties, the Tulunids and the Saffarids, both nominally vassals of the waning 
Abbasid Caliphate, battled in the streets of Mecca over a question of precedence, 
in a religious ceremony. The guilds mentioned above helped, "for good money," 
to decide the conflict in favor of the Egyptians, Cf. Snouck Hurgronje, Mekka, 
I, 46. 

31. On svwoikisiMos, see below, sec, «:2andsec. », n. 9. 

32. Revolt in a.d. 532 of the "Blues" and the "Greens," political parties 
With a race-track background, which is also revealed by the name: nika means 
"wins." It was bloodily suppressed by Belisar. 



11 

The Occidental City 



1. 



Character of Urban Landownerskip and 
Legal Status of Persons 



A striking contrast to the Asian conditions is presented by the city 
of the medieval Occident, in particular by the city of the lands north 
of the Alps wherever it developed in a form approximating the ideal 
.type. 

Like the Asian and Oriental city, the European city was a market 
center, the seat of trade and of the crafts, and a fortress. In both areas 
the cities had merchant and artisan guilds, and even the creation of 
autonomous constitutions by such guilds is found throughout the world, 
differences being questions of degree only. Again like the Asian city, 
both the ancient and the medieval city of the Occident — although with 
qualifications, to be specified later, in the case of the latter — contained 
the seigneurial seats of patrician families which held manorial estates 



ii ] The Occidental City i 2 3 7 

outside of the city in addition to urban properties, often large orieS 
which in time were further increased out of the profits from the partici- 
pation of the patriciate in the urban economic opportunities. Most Oc- 
cidental cities of the Middle Ages also knew "lord protectors" and 
officials of outside political lords who exercised varying degrees of au- 
thority within the walls. 

Finally, as in most of the rest of the world, the law applying to 
urban house lots differed in some way from that applying to agricultural 
land. But in the Occidental medieval city such differences in the real 
estate law constituted an essential feature, one that was almost never 
lacking except in certain transitional stages. Urban landed property was 
always alienable without restriction, inheritable, unencumbered with 
feudal obligations or obligated only to fixed rent payments, while peas- 
ant land was always restricted in multiple ways by rights reserved to 
the village, the manor, or both. In Asia and in the ancient world this 
distinctive treatment of urban real property cannot be observed with 
similar regularity. 

If the contrast with respect to land law was only relative, the con- 
trast between the East and the ancient world on the one band and the 
medieval West on the other with respect to the legal status of the 
person was absolute. Everywhere, whether in the early Middle Ages 
or in Antiquity, in the Near or in the FaT East, the city arose from a 
conSuence and setding together of outsiders, and because of the poor 
sanitary conditions of the lower classes it was able to maintain itself 
only through continuous new immigration from the countryside. Hence 
it has everywhere contained the most varied social elements. Examined 
office candidates and mandarins live within the walls together with 
illiterates despised as "mere mechanicks" and with men of the (very 
few) impure occupations in East Asia. Castes of many kipds live to- 
gether in the Indian city, members of the patrician clans and landless 
artisans in the cities of the Near East and of Mediterranean Antiquity, 
freedmen, serfs and slaves together with manorial lords, their court 
officials and servitors, ministeriales and mercenaries, priests and monks 
in the early medieval city. Seigneurial courts of all kinds could be 
located within the city, or the city itself with its entire territory could 
belong to the manor of a lord; the repair and the guard of the walls 
might then be entrusted to a group of casde vassals or to a stratum 
holding privileged "castle fiefs" or other special rights. Very strong 
status differences stratified the town dwellers of Mediterranean Anti- 
quity. To a much lesser degree this is true also of the early Middle Ages 
and of Russia up to the threshold of the present, even after the aboli- 



¥ 



I238 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

tion of serfdom. The Russian immigrant from the countryside con- 
tinued to be legally bound to his village of origin, and the mir could 
force him to return by revoking his internal passport. To be sure, the 
non-urban status order was almost everywhere modified in certain ways 
within the city. In India this took the form that the emergence of 
specifically urban activities resulted in the formation of new castes which 
r s in fact, though not in law, were specific to the city. In the Near East, 

H in Antiquity, in the early Middle Ages, and in Russia before the aboli- 

jiV tion of serfdom, an important influence was exerted by the development 

'V that the broad strata of town-dwelling slaves or serfs would in fact — 

' although again this found no immediate recognition in the law— - 

merely pay a money tribute to their lord, but otherwise would join the 
'y- class of economically independent burghers on the same level with 

j. others who were legally free. The circumstance that the city was a 

k-. market with relatively permanent opportunities to earn money through 

commerce, or the trades induced many lords to exploit their slaves and 
serfs not as workers in their own houses or enterprises but as sources of 
annuities; they trained them to be artisans or small merchants and per- 
mitted them to pursue their livelihood in the city in return for the pay- 
ment of a body rent QLeihzins); at times (as in Antiquity) they also 
equipped them with working capital. In the public construction works of 
Athens we can thus find slaves and free men employed for wages in 
the same piece-work category. In the Roman territories, unfree men — 
either institores 1 of their master or slaves working with their tnerx pe- 
culiaris* as independently as any small burgher — can he found along- 
side free men in the crafts and in retail trade as well as belonging to 
the same secret religious communities (mysteries). The possibility of 
purchasing his freedom intensified the economic effort especially of the 
unfree petty burgher; it is hence no accident lhat in Antiquity and in 
Russia a large part of the first fortur->s acquired through continuous 
rational operation in trade or industry is found in the hands of freed- 
nien. The Occidental city thus was already in Antiquity, just like in 
Russia, a place where the ascent from bondage to freedom by means 
of monetary acquisition was possible. This is even more true for the 
medieval city, and especially for the medieval inland city. In contrast 
to all known urban development elsewhere, the burghers of the Oc- 
cidental city engaged in status-conscious policies directed toward this 



In the early period of ample economic opportunities, the inhabitants 
of the cities had a common interest in their full utilization. Population 
growth through immigration was seen as a way to increase the oppor- 



o ] The Occidental City i 139 

(unities for sales and acquisition of every individual. For the same rea- 
son the burghers had a common interest in the elimination of the 
possibility that a serf, once he had become prosperous in the city, would 
he requisitioned for house and stable service by his lord, if for no other 
reason than to extort a ransom from him. This was repeatedly practiced 
by Silesian noblemen as late as the eighteenth century and by Russians 
still in the nineteenth century. The urban citizenry therefore usurped 
the right to dissolve the bonds of seigneurial domination; this was the 
great — in fact, the revolutionary — innovation which differentiated the 
medieval Occidental cities from all others. In the central and northern 
European cities appeared the well-known principle that StaMujt macht 
frei,* which meant that after a varying but always relatively short time 
the master of a slave or serf lost the right to reclaim him. The principle 
was translated into fact to very differing degrees. Very often, in fact, 
cities were forced to promise not to admit unfree men, and with the 
narrowing of economic opportunities this barrier was often not un- 
welcome to them. Nevertheless, in general the principle prevailed. In 
the cities the status differences disappeared — at least insofar as they 
signified a differentiation between "free" and "unfree" men. 

On the other hand, there developed in many of the northern Euro- 
pean urban settlements, where originally internal political equality of 
the setders and free election of the municipal officials had obtained, a 
stratum of honorattores: Council-seated families (JKatsgescMechter), 
monopolizing the municipal offices by virtue of their economic inde- 
pendence and power, became differentiated from the other burghers. 
Furthermore, in many cities of the South, but also in some rich North- 
ern (including German) cities, even as in Antiquity, we find from the 
very beginning a division into eauites — people who maintained a stable 
(we would call it a "racing stable" today since it was kept for tourna- 
ment purposes) — or Konstaffeln* on the one hand, and common 
burghers on the other. The former group constituted a specifically urban 
nobility; hence this was evidently a status (standische) differentiation. 

However, this development was countered by another one tending 
to enhance the status unity of the urban citizenry, whether noble or 
not, vis-a-vis the non-urban nobility. Toward the end^of the Middle 
Ages, at least in northern Europe, the "nobility" of the urban patri- 
cians was no longer acknowledged by the knighdy nobility of the coun- 
tryside because of their participation in economic acquisition and — this 
was particularly stressed — because they sat together with the craft guilds 
in the municipal governments. Consequently, the urban patriciate was 
denied the qualification for tournament, for participation in noble en- 



I24O THE CITY (NON-LEGITIMATE DOMINATION) ■ [ Ck. XVI 

dowments (SHftsftihigkeit'), connubium with the nobility and the ca- 
pacity to enter into feudal relations and to hold fiefs (the latter in 
Germany with the only temporary exception of the burghers of the 
privileged "Free Imperial" cities). 

Of the two trends, one toward a relative levelling of status differ- 
ences, and the other toward more internal differentiation within the 
city, the latter generally dominated in the long run. At the close of die 
Middle Ages and at the beginning of modem times, nearly all Italian, 
English, French, and German cities — insofar as they had not become 
monarchical city states as in Italy — were ruled by a council-patriciate 
or a burgher corporation which was exclusive towards the outside and 
a regime of honoratiores internally; this was true even when — as a hold- 
over from the period of crafts dominance — such notables were still 
obliged to maintain formal membership in one of the craft guilds. 

The cutting of status ties with the rural nobility was carried cut 
quite consistently only in the .municipal corporations of northern Europe, 
while in the South, specifically in Italy, by contrast, almost the entire 
nobility moved into the cities as the power of the municipalities in- 
creased. This latter trait was even more characteristic of Antiquity, 
where the city originated precisely as the seat of the nobility. The 
ancient and, to a lesser extent, the medieval southern European city 
thus in a sense form a transitional stage in this respect between the 
Asian and the northern European city types. 

Beside these differences, the decisive common quality of the ancient 
Occidental and the typical medieval city lies in the institutionalized 
association, endowed with special characteristic organs, of people who as 
"burghers" are subject to a special law exclusively applicable to them 
and who thus form a legally autonomous status group. This quality of 
the fdlis or comune as a special status group (Stawd) can be found, as 
far as is known, in all legal systems other than the Mediterranean and 
Occidental only in the most rudimentary form. The most likely places 
[where its existence might still be shown by further research] would 
be Mesopotamia, Phoenicia, and Palestine at the time of the wars of the 
Israelite confederacy with the Canaanite city nobility, perhaps it might 
be found also in some maritime cities of other areas and periods. For 
instance, in the cities of the Fanti tribes of the Gold Coast, which were 
described by Cruickshank* and after him' by Post, a city king presided 
over a "council" as primus inter pares among the members, in whose 
hands were the court of law and the administration; the members in- 
cluded 1. the cabhoceers, heads of patrician families distinguished by 
wealth and a socially appropriate style of life (hospitality and con- 



n ] The Occidental City i 2 4 1 

spicuous consumption); 2. the elected foremen of the city quarters 
which were organized as military associations directed by elders and 
elected foremen, were quite independent of each other, and in fact 
often feuded with each other; 3. the fynins, hereditary police officials 
of the city quarters. Similar preformations of a polis or commune consti- 
tution may have appeared elsewhere in Asia or Africa. However, noth- 
ing is known of corporate "burgher rights." 



2. The Rise of the City a$ a Confraternity 

The fully developed ancient and medieval city was above all con- 
stituted, or at least interpreted, as a fraternal association, as a rule 
equipped with a corresponding religious symbol for the associational 
cult of the buTghers; a city-god or city-saint to whom only the burghers 
had access. It is true that many Chinese dries also had a special god (often 
an apotheosized mandarin), but there he retained the character of a 
functional deity in the pantheon. 

In the Occident, the association of the city community as such 
owned and controlled property. While the famous dispute of the Alids 
with the community over the "Gardens of Fadak" — the first economic 
• cause for the separation of the shi'ah — was a conflict over dynastic 
versus community property, the "community" in whose name the repre- 
sentatives of the caliph claimed the land was the religious community 
of Islam, ana not a political "community" of Mecca which, in fact, did 
not exist. 7 A "commons" owned by the urban setdement may have 
existed elsewhere, just as it did in village communities. Also, princes 
sometimes had specifically urban tax sources. But a municipal financial 
administration, such as was known in the ancient or medieval city, ap- 
pears at best only in the barest rudiments. 

One of the foremost factors responsible for the peculiarities differ 
entiating the Mediterranean city of all periods from the Asian city is 
the absence of magical and aniiiiistic caste and sib constraints and of the 
corresponding taboos among the free townsmen. In China it has been 
the exogarhous and endophratric sib, in India (since the victory of the 
patrimonial kings and the Brahmans) in addition the endogamous and 
exclusive caste with its taboos which has prevented any kind of fusion 
of city dwellers into an association of burghers based on religious and 
secular equality before the law, connuhium, commensality, and soli- 
darity against non-members. Because of the taboo-protected caste closure 
this applies to India even more strongly than to China; it is at least 



1242 THE CITY CNON-LBGITIMATB DOMINATION) [ Cfe. XVI 

in part due to this factor that India had a population which, from the 
legal point of view, was 90 pet cent rural, whereas in China the city 
played a considerably more significant role. While for the inhabitants 
■ of an Indian city a communal cult meal was an impossibility, the Chi- 
nese, due to their sib organization and the overwhelming importance 
of the ancestor cult, had no need for one. However, only taboo-bound 
people like the Indians and (to a much lesser degree) the Jews went so 
far as to exclude even private commensality. In India this was taken 
to such length that even the mere glance of one outside the caste 
suffices to defile the kitchen. 8 

It was still true in Antiquity that the religious ceremonies of the 
gens were as inaccessible to non-members as was the Chinese ancestor 
cult. On the other hand, already for the ancient polis it was (according 
to the Hellenic tradition) one component of the (real or fictitious) act 
of "housing together" (synoikismos^) that the individual prvtoweta of 
the communities joining in the establishment of the city, the localities 
of their cultic meals, were replaced by a common city prytatteion.* This 
was originally an indispensable feature of the city which symbolized 
the commensality of the urban clans in the wake of their confraterniza- 
tion. Nevertheless, officially the ancient city at first continued to be 
organized in sibs and superordinate groups which often rested (at least 
fictionally) on common descent and formed strictly exclusive cult as- 
sociations. Membership was purely personal [i.e., not territorial or oc- 
cupational]. It was the belief of the ancient townsmen — which was not 
without practical consequences — that their cities had originated as 
freely-willed associations and confederations of groups which were partly 
of a clan character and partly (as is probable for the phratries) of a 
military\ character, and which in the later reorganizations of the cities 
had become schematized along technical-administrative lines. For this 
reason the cities of Antiquity were religiously exclusive not only toward 
the outside, hut also internally against everyone who did not belong to 
one of the confederated sibs — that is, against the plebeians, and for this 
reason they remained compartmentalized into initially very exclusive 
cult associations. 

With respect to this trait-*-that of a confederation of noble families 
— the southern European city of the early Middle Ages, especially the 
maritime city, closely resembles the ancient city. Within the walls each 
noble family had its own fortress or, if not, a fortress shared with other 
families, in which case its use was regulated in great detail (as is docu- 
mented for Siena). t0 Feuds between noble families raged as violendy 
within the city as outside, and some of the oldest urban ward systems 
(for example, the division into tdberghi) presumably were delimitations 



n ] The Occidental City i 243 

of feudaT power claims. However, it is most important that there were 
no residues — such as had still been present in Antiquity — of religious 
exclusiveness of the sibs toward each other and toward the outside. 
This was a consequence of the historically memorable event which 
Paulus jusdy thrust into the foreground in his Episde to the Calatians: 
that Peter, in Antiochia, had partaken of the (ritual) communal meal 
with uncircumcised brethren [GaL 2]. Ritual exclusiveness had ah ady 
begun to wane in the ancient city; the clanless flebs obtained at 
least the principle of ritual equality. In medieval Europe, especially 
in the central and northern European cities, ritual exclusiveness was 
never strong, and the sibs soon lost all importance as constituencies of 
the city. The city became a confederation of thje individual burghers 
(heads of households), and the membership of the burghers in non- 
urban associations also lost all practical significance for the city com- 
mune itself. Already the ancient polis was thus on the road to becoming 
an institutionalized "commune" CQemeinde) in the mind of its in- 
habitants. However, in Antiquity the concept of the "commune" was 
fully differentiated from that of the "state" only with the city's incor- 
poration into the large Hellenistic or Roman territorial states, which at 
the same time robbed the city of its political independence. The 
medieval city, by contrast, was a "commune" from the very beginning, 
even though the legal concept of the "corporation" as such was only 
gradually formulated. 



3. A Prerequisite for Confraternization: 
Dissolution of Clan Ties 

In the Occident, taboo barriers like those of the Indian and Equa- 
torial areas were absent, as were the magical totemic, ancestral and 
caste props of the clan organization which in Asia impeded confrater- 
nization into a city corporation. A thorough totemism and the casuistic 
adherence to sib exogamy arose — probably at a relatively late point of 
time — precisely in those areas where large-scale poliu'co-mflitary and, in 
particular, urban associations never developed. In the religions of West- 
em Antiquity we find only traces of these phenomena, either residuals 
or rudiments. The reasons for this, insofar as they are not specifically 
religious, can only be vaguely guessed. The mercenary soldiering and 
the piratical life of the early period, the military adventures, and the 
numerous inland and overseas colony foundations, inevitably leading 
to intimate permanent associations between tribal or at least clan 



12 4 4 WE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

strangers, seem with equal inevitability to have broken the strength of 
the exclusive clan and magical ties. Even though in Antiquity clan ties 
were everywhere artificially reinstituted, for tradition's sake, by the di- 
vision of the newly founded communities into "gentile" associations and 
phratries, it was not the sib association but the military association of 
the polis which now constituted the basic unit. The century-long 
wanderings of conquering warrior-associations of the Germanic tribes 
before and during the Great Migration (.Vdlkerwtmderung), their 
mercenary soldiering and their war expeditions under elected leaders, 
must have resulted in an equal number of impediments to the rise of 
taboo and totemic ties. Even though they are said to have settled, wher- 
ever possible, according to real or fictitious sibs, other forms of associa- 
tion were much more important. The legislative-judicial and military 
association of the "hundreds," the "hide"-system as the basis for the 
allocation of public burdens, later the relationship to a prince: follow- 
ing and vassaldom — these were the decisive elements, and not some 
magical clan ties which never really developed, perhaps precisely be- 
cause of these circumstances. When Christianity became the religion 
of these peoples who had been so profoundly shaken in all their tra- 
ditions, it finally destroyed whatever religious significance these clan 
ties retained; perhaps, indeed, it was precisely the weakness or absence 
of such magical and taboo barriers which made the conversion pos- 
sible. The often very significant role played by the parish community 
in the administrative organization of medieval cities is only one of 
many symptoms pointing to this quality of the Christian religion which, 
in dissolving clan ties, importantly shaped the medieval city. Islam, by 
contrast, never really overcame the divisiveness of Arab tribal and clan 
ties, as is shown by the history of internal conflicts of the early caliphate; 
in its early period it remained the religion of a conquering army of 
tribes and clans. 



4 . Extra-Urban Associations in the Ancient and 
Medieval City 

Let us recapitulate the basic distinctions. A common trait of ail 
cities in the world is that they were to a large extent settlements of 
people previously alien to the given location. Chinese, Mesopotamian, 
Egyptian, and occasionally even Hellenistic warlords Founded cities, 
relocated them, and settled in them not only voluntary immigrants but 
also human livestock rustled from here and there as need and oppor- 



« ] The Occidental City i 145 

tunity dictated. This was most pronounced in Mesopotamia, where the 
forced settlers first had to dig the canal which made possible the con- 
struction of the city in the desert. As the prince with his official ad- 
ministrative apparatus in such cases remains the absolute master, no 
municipal association can develop or only the most feeble beginnings 
of one. The urban population often retains its tribal identity with con- 
nubial segregation or, where this is not the case, it at least retains the 
membership in its former local and. clan associations. Not only the 
Chinese town-dwellers normally stayed members of their rural com- 
munities of origin, but also broad strata of the non-Greek population 
of the Hellenistic Orient. Thus, the legend of the New Testament 
justifies the birth of the Nazarene in Bethlehem with the explanation 
that the sib of his father had its land there (its Hantgemal, in the words 
of the [9th century] German translation, the Heliand), 11 for which rea- 
son — thinks the legend — it also had to undergo the census count there. 
The situation of the Russian peasant migrating into the city was no 
different until very recendy: he retained his right to the land as well 
as the duty to share, upon demand of the village community, in the 
public burdens of his native village. Under such circumstances no legal 
status of urban citizenship (Stadtbtirgenechi) arose, but only an as- 
sociation for sharing the burdens and privileges of those who happened 
to inhabit the city at any given time. 

The Hebraic synoikismos, too, was based on sib associations. The 
reconstitution of the polis of Jerusalem by Ezra and Nehemiah was 
effected, as the tradition has it, according to clans, namely by settling 
together delegations of each rural sib which possessed full political 
rights; only the clanless, politically rightless plebs was organized ac- 
cording to place of origin." Even though a man was a citizen as an 
individual in the ancient Greek and Roman city, [he obtained this 
quality] originally only as a member of his sib. Every Hellenic and 
Roman synoikismos and ever)' colonizing conquest of early Antiquity 
took a form, at least according to tradition, which was similar to the 
reconstitution of Jerusalem, and even Democracy was initially unable 
to abolish the organization of the citizenry into sibs (gentes} and the 
superordinated phratries and phylae, but had to rely on indirect means 
to render politically innocuous these purely personal cult associations 
which were dominated by the aristocratic families. 

In Athens, qualification for the "legitimate" offices was restricted to 
members of clans which had a cult center (a Zm *p*«os). The Roman 
tradition knows of many cases of cities founded through the setding to- 
gether of natives and peoples of alien tribes; ritual acts confirmed the 



1246 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

formation of a fraternal religious community out of the separate ele- 
ments, with a communal hearth and a municipal god housed on the 
capitol, but at the same time the population was organized into gentes 
(clans), curiae and tribus (the latter two the equivalents of the Greek 
phtatries and phylae). These divisions, an indispensable feature of every 
ancient city, quite early became to be created artificially (as is indicated 
by the round numbers of such units — typically 3, 30, or 12) for the 
allocation of the public burdens. Nevertheless, membership in one of 
these associations remained the distinguishing mark of the citizen with 
full rights, entided to participation in the religious cult and qualified 
for all offices which required communication with the gods (in Rome: , 
participation in the aus-picia). It was the need to qualify for participation 
in the religious rites which made such membership indispensable, for 
an association with claims to legitimacy could rest only on the basis of 
the traditional, ritually oriented organizational forms such as the clan, 
the military association (phratry), and the political tribal association 
Cphyle'), or at least had to create such a basis by ficUon. 

All this was quite different in the medieval "founded" cities, par- 
ticularly in the North. Here, at least in a new foundation, the burgher 
joined the citizenry as an individual, and as an individual he swore the 
oath of citizenship. His personal membership in the local association 
of the city guaranteed his legal status as a burgher, not his tribe or sib. 
Here, too, the city foundations often encompassed persons originally 
foreign to the particular locality and at times even merchants of al- 
together alien extraction. At least in the case of new foundations this 
happened when the founders extended the privileges of citizenship to all 
comers; of course it occurred to a much lesser degree when old setde- 
ments were transformed into cities. As is quite natural, the foreign 
merchants attracted from the entire Western orbit, from Rome to Po- 
land, who are documented in Cologne, did not become members of the 
urban coniuratio [of a.d. 1112], the creation of which was, rather, the 
work of precisely the native propertied strata. Nevertheless, sometimes 
even complete foreigners were enfranchised. 

A special position, corresponding to that of the "guest peoples" in 
Asia, was occupied in the medieval cities only by the Jews — a fact which 
in itself is interesting. In an Upper Rhine document, it is true, a bishop 
stresses that he invited Jews into his town "for the greater glory of the 
city," 15 and in the [12th century] Cologne parish documents registering 
real estate transactions, the Schreinsurkunden, the Jews appear as 
owners of lots intermingled with those held by Christians. 1 * Neverthe- 
less, the ritual exclusion of connubium — otherwise foreign to the Oc- 
cident — and the actual impediments to table community between Jews 



H ] The Occidental City i 2 4 7 

and non-Jews, but above all the absence of a common share in the ritual 
of the Lord's Supper, effectively prevented fraternization. The medieval 
city, after all, was still a cuhic association. The city church, the city 
saint, participation of the burgher in the Lord's Supper, the official cele- 
brations of the church holy days — all these are obvious features of the 
medieval city. But the sib had been deprived of all ritual significance 
by Christianity, for by its very nature the Christian congregation was a 
religious association of individual believers, not a ritual association of 
clans. The Jews, therefore, remained from the beginning outside the 
burgher association. 

In spite of all this, the medieval city, just like the ancient city, was 
a secular foundation, even though it still required the bond of a shared 
cult and ecclesiastic parishes were often (perhaps always) among its 
constituencies. The parishes acted not as ecclesiastic associations nor 
by means of eccclesiastic representatives, but rather through the lay 
eiders of the parish communities who, together with the purely secular 
board of Schoffen and at times the merchant guilds, participated on 
behalf of the burghers in the legally decisive acts. Full membership in 
the ecclesiastic community was the prerequisite for urban citizenship, 
rather than birth into a sib which satisfied certain cult requirements as 
in Antiquity. Initially, the differences between the medieval and the 
Asian city were not as yet of a fundamental nature. The local god, 
corresponding to the local saint of the medieval city, and the cult com- 
munity of the citizens were indispensable elements of all early cities of 
Near Eastern Antiquity. However, the resettlement policies of the men- 
hunting Great Kings apparendy destroyed this tie between the cult 
community and the city and turned the city into a purely administrative 
district within which all ir, Wbitants, whatever their tribal or cult mem- 
bership, shared the same manner of life and the same opportunities. 
Evidence for this conclusion may be seen in the fate of the Jews carried 
into [the Babylonian! Exile: only the state offices, which demanded a 
knowledge of writing and apparently also ritual qualifications, seem to 
have been closed re them. Offirirls of 'or> urban "commune" or muni- 
cipality as such do not seem to have existed in the [Near Eastern] 
cities. The various foreign groups, ju?t like die exiled Jews, had their 
own elders and priests — in other words, they remained "guest peoples." 
In pre-Exile Israel, the metks (gerim') stood outside the ritual community 
(they were originally not required to be circumcised); among these we 
find almost all the artisans. 15 Hence they were guest tribes, just like those 
of India. There it was the caste taboo which ruled out ritual confraterni- 
zation of the city inhabitants. In China, each city had its own god (often 
a former mandarin of the city who had become the object of a cult). 



1248 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

But in all Asian cities, including the Near Eastern ones, the phenomenon 
of a "commune" was either absent altogether or, at best, present only 
in rudiments which, moreover, always took the form of kin-group asso- 
ciations that extended also beyond the city. The religious commune of 
the Jews after the Exile, [a seeming exception,] was ruled in a purely 
theocratic manner. 



5. The Sworn Confraternization in the Occident: 
Legal and Political Consequences 

The Occidental city — and especially the medieval city, which for 
the time being shall be our only concern — was not only economically a 
seat of trade and the crafts, politically in the normal case a fortress and 
perhaps a garrison, administratively a court district, but beyond all this 
also a sworn confraternity. In Antiquity the symbol of a confraternity 
was the joint election of the prytanets. 1 * In the Middle Ages the city 
was a sworn comune which had the legal status of a corporation, al- 
though this was attained only gradually. Hatschek points out that as late 
as 1 31 3 English cities could not obtain a "franchise" because, to put it 
in modern terms, they had no "legal personality"; only under Edward I 
[ 1 27.2-1 307] had cities first appeared as corporations." 

Everywhere, not only in England, the burgher associations of the 
emerging cities were initially treated by the political power, the lord of 
the city, as passive liturgical associations of urban land owners who 
shared in certain specific tasks and duties as well as privileges: market 
monopolies and staple rights, rights of practicing and of controlling the 
practice of certain trades, participation in the city court, special military 
and taxation treatment. Moreover, the economically most important of 
these privileges initially were not in a formal legal sense acquisitions of 
the burgher associations, but the property of the political or manorial 
lord of the city. It was he, rather than the burghers, who formally ac- 
quired these important rights which were to the immediate economic 
advantage of the burghers; the lord's indirect financial benefit lay in the 
tax resources which he thus developed. In Germany, for instance, such 
rights were in the oldest cases royal grants to a bishop, on the basis of 
which he could and did treat his town-dwelling subjects as privileged. 
At times, as in Anglo-Saxon England, permission to setde in the market 
town was an exclusive privilege of the neighboring manorial lords, to 
be bestowed upon their own serfs only (but not upon those of any other 
lord), whose revenues they then proceeded to tax. The urban court was 



ii ] The Occidental City 1 2 4 9 

either a royal or a seigneurial court; the Schoffen* and other court func- 
tionaries were not representatives of the burghers, even when they were 
elected by them; as officials of the lord they judged according to his 
statute. The universitas civium, which term soon appears everywhere, 
thus was initially heteronomous and heterocephalous; it was incorporated 
in other political and frequently also in manorial associations. However, 
this situation did not remain unchanged for long. 

The city became an institutionalized association (anstaltsmassige 
VeTgesellschaftung), autonomous and autocephalous (even though to 
varying degrees), an active "territorial corporation"; the urban officials, 
in their entirety or in part, became officials of this institution (Anstalt). 
It is of great importance for the development of medieval cities that 
from the very beginning the privileged position of the burgher was a 
right of the individual also vis-a-vis outside parties. This was not only 
a consequence of the "personalist" approach to law, common to both 
Andquity and the Middle Ages, 1 * under which the members of a 
. group were considered to have — as a . matter of group privilege — a 
"subjective" right to be dealt with under a common "objective" law. 
Another source for this position of the burgher, especially for the 
Middle Ages, is to be sought, as Beyerle stressed quite correcdy, 20 in 
survivals from the Germanic judicial system and in particular in the 
concept of the Ding-community. As an active member in that community 
— and that means, as a judge in the Dmg-court — the burgher and 
member of a legally autonomous group himself creates the "objective" 
law to which he is subject. We have previously spoken about the 
significance of this institution for the formation of law. 21 A right of this 
type did nor exist for those subject to the law of almost all cities of the 
world. (Only in Israel can traces of it be found, and we shall see what 
special circumstances caused this exception.) 

For the development of the medieval city into a burgher association 
two circumstances were of central significance: on the one hand, the 
fact that at a time when the economic interests of the burghers urged 
them toward institutionalized association (anstaltsmassige Vergesell- 
schaftung) this movement was not frustrated by the existence of magic 
or religious barriers, and on the other hand the absence of a rational 
administration enforcing the interests of a larger political association. 
Even if only one of these conditions was violated — as in Asia — the 
strongest common economic interests of the city inhabitants enabled 
them to achieve no more than transitory unification. The rise of the 
medieval autonomous and autocephalous city association, with its ad- 
ministrative council headed by the Konsul, Majer [mayor] or Burger- 



12JO THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

meister, is a process that differs in its very nature not only from the 
development of the Asian city but also from that of the ancient polis. 
We will have to discuss this in detail later [infra, ch. XVI:»i:6-8], 
but may note now that the specifically urban constitution of Antiquity 
under the domination of honoratiores from the militarily qualified sibs 
always represented — and most pronouncedly so in its most typical exam- 
ples — a transformation of the power of the city king on the one hand, and 
of that of the sib elders on the other. Especially in those medieval cities 
which are most typical for their time, matters were quite different. 

In the analysis of this process it is, however, indispensable to keep 
apart the formal juridical and the sociologically and politically relevant 
aspects — a precaution which has not always been observed in the disputes 
over the various "city theories." In a formal legal sense the corporation 
of the burghers and its authorities had their "legitimate" origin in (real 
or fictitious) privileges granted by the political and at times by the 
manorial powers. It is true that to some extent the actual process corre- 
sponded to this formal pattern. But quite often, and especially in the 
most important cases, the real origin is to be found in what is from the 
formal legal point of view a revolutionary usurpation of rights. To be 
sure, this cannot be said of all cases. We can distinguish a "spon- 
taneous" and a "derived" formation of medieval city associations. In the 
"spontaneous" case, the commune was the result of a political associa- 
tion of the burghers in spite of, or in defiance of the "legitimate" 
powers or, more correctly, of a series of such acts. Formal recognition 
by the legitimate authorities came only later, if at all. A "derived" 
burgher association was formed through a contracted or legislated grant 
of more or less limited rights to autonomy and autocephaly, issued by 
the city founder or his successors; it is found frequendy in the case of 
new foundations as a grant to the settlers and their descendants. 

The "spontaneous" usurpation through an act of rational association, 
a sworn con fraternization (Eidverbruderung: cott»«r«£to) of the burghers, 
is found especially in the bigger and older cities, such as Genoa or 
Cologne. As a rule, however, a combination of events of both kinds 
occurred. In the documentary sources of urban history, which by their 
nature overemphasize the continuity of legitimacy, such usurpatory con- 
fraternizations are as a rule not mentioned at all; it is usually only by 
accident that one can be documented. As a result, the frequency of the 
"derived" origin is almost certainly overrepresented in the sources, at 
least with respect to cities which were already going concerns at the time 
of the commune formation. Only a single laconic note mentions the 
Cologne comwatio of 1 1 12. The Schoftenbank of the Cologne Altstadt 



H ] The Occidental City i 2 5 1 

and the' parish representatives particularly of the Saint-Martin suburb, 
the new settlement of the mercatores, probably appear on the docu- 
mented transactions precisely for the reason that they were "legitimate" 
authorities. 22 And the opponents of the burgher association, the city 
lords, would naturally always be ready to make an issue of questions of 
formal legitimacy, such as (in Cologne) that some of the aldermen 
had not sworn ah oath [of obedience], 23 or to use similar pretexts for 
complaint. It was, after all, in such things that usurpatory innovations 
would find their formal expression. The edicts of the Hohenstaufen 
emperors against urban autonomy took a different line: they did not 
forbid this or that form of legal innovation, but the very coniurationes 
themselves. 2 * It is quite indicative of what strata were the driving power 
behind such acts of usurpation that in Cologne, even at a much later 
time, the Eicherzecke (guild of the rich), which from the point of view 
of legitimacy was nothing but a private club of wealthy citizens, could 
successfully assert the right to confer citizenship — a quality which was 
legally quite independent from memkgT$hip in this club. The majority 
of the larger French cities obtained their urban constitutions in a 
similar way through acts of sworn confraternization of the burghers. 



6. The coniurationes in Italy 

The real home of the coniuratio, however, is obviously to be found 
in Italy. 2 ' In the overwhelming majority of cases the city constitution 
was here formed in the "spontaneous" way, by coniuratio. It is in Italy, 
therefore, that in spite of the ambiguity of many sources the sociologi- 
cal meaning of the burgher association can best be determined. Its 
general precondition was the partly feudal, pardy prebendal appropria- 
tion of powers of domination characteristic for the Occident. We have 
to picture urban conditions prior to the coniuratio on the whole as 
rather similar, in spite of differences in detail and between cities, to 
the peculiar anarchy prevailing in Mecca, which for this reason was 
described above at some length. Numerous claims to authority stand side 
■by side, overlapping and often conflicting with each other. Episcopal 
powers of seigneurial and political nature; appropriated vicontiel and 
other political office powers resting pardy on chartered privileges and 
partly on usurpation; powers of great urban feudatories or freed minis- 
teriales of the king or the bishops (capitaneiy, those of rural or urban 
subfeudatories (yalvassores^) of the cafitaneif* allodial clan properties 
of most varied origin; countless owners of castles fortified on their own 



I 252. THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

authority or that of some other power, a privileged estate wielding 
authority over a broad stratum of clientes, either bound or free; occupa- 
tional unions of the urban economic classes; judicial powers based on 
manorial law, on feudal law, on territorial law and on ecclesiastic law 
— ail these are found in the same city. Temporary treaties, similar to 
the "ties" of the Metcan patrician sibs, interrupted the feuds of the 
armed interests within and outside the city walls. Officially the legitimate 
lord of the city was either an imperial vassal or — as in most cases — the 
local bishop; by virtue of Ms combination of secular and religious in- 
struments of power, the latter usually stood the best chance of imposing 
an effective rulership. 

The type of coniuratio which under the name of a compagna com- 
munis 27 or some similar designation prepared the way for the political asso- 
ciation of the later "city" was likewise concluded for a concrete purpose, 
and usually for a definite time period or until further notice; it could 
thus be dissolved again. At times, during the e?rly period, several such 
"companies" can be found within the same city walls, but permanent 
significance was reached only by the sworn association of the "whole" 
community — i.e., of all those groups which at the given time effectively 
claimed and held military power within the city. In Genoa this associa- 
tion was at first renewed every four years. The opponent varied with 
the conditions of the locality. In Milan the coniuratio of the arms-bearing 
townsmen of a.d. 980 was directed against the bishop, while in Genoa 
the bishop and the vicontiel families (who had appropriated the secular 
seigneurial rights — later on transformed into tax claims) seem initially 
to have been members of the urban coniwratiQ™ But here, too, the 
later comjtagna communis was directed against the power claims of the 
bishop and the Visconti. 

The immediate positive aim of the sworn confraternity was the uni- 
fication of the local landowners for protective and defensive purposes, 
for the peaceable settlement of internal disputes, and for the securing of 
an administration of justice in correspondence with the interests of the 
townsmen. But there were further goals. One was the monopolization 
of the economic opportunities offered by the city: only the members of 
the sworn association were to be permitted to share in the commerce of 
the city. In Genoa, for example, membership was a prerequisite for 
permission to invest capital in overseas trade in commenda partnerships. 
Another aim was the delimitation of the obligations owed to the city 
lord: the replacement of arbitrary taxation by fixed lump sum payments 
or by high [but determinate] annual payments. Finally, the city associa- 
tion took in hand the military organization for the purpose of expand- 



H ] The Occidental City 1253 

ing the political and economic power sphere of the commune against 
the outside. Hence we find, only a short time after the formation of the 
coniurationes, the beginning of the wars of the communes against each 
other, which by the early eleventh century had already become a chronic 
phenomenon. 

Within the city, the mass of the burghers was forced to join the 
sworn confratemization. The noble and patrician families which had 
founded the association would administer an oath to all inhabitants 
qualified by landownership; those who did not agree to take it were 
forced into exile. This was not always immediately accompanied by a 
formal change in the existing organization of offices. The bishop or 
secular city lord often retained his position as head of an urban district 
which continued to he administered through his ministeriales; the great 
transformation was felt only in the existence of the burgher assembly. 

But this did not continue for long. In the last decades of the 
eleventh century annually elected consules appear everywhere, often 
numbering up to a dozen or more; officially they were elected by the 
■ citizenry direcdy or by an electoral college of honoratiores, itself in 
theory elected by-the burghers but in practice merely certified by ac- 
clamation, which proba'bly always usurped the right to nominate the 
officials. The consuls, salaried and entitled to take fees, completed the 
revolutionary usurpation by seizing all or the major part of judicial 
powers and the supreme command in wartime; they administered all 
affairs of the commune. In the beginning the consuls sejsm to have been 
often recruited from the noble judicial officials of the episcopal or 
seigneurial curia, who now obtained office from the sworn burgher fra- 
ternity by election rather than from the city lord by appointment. 

A college of sapientes (sages), often called the credenza, strictly 
controlled the consuls; it was formed at times by the former [i.e., episco- 
pal or seigneurial] scabini, at times by honoratiores appointed by the 
consuls themselves or by an electoral college. In practice it usually con- 
sisted of the heads of the economically and politically most powerful 
families,- who' divided these positions among themselves. 

The initial coniurationes still observed the status separation into 
vassals (capitaneO, subvassals, ministeriales, casde lords (castellant), 
and cives meliores — that is, persons economically qualified for military 
service; office and council positions were assigned proportionally to these 
groups. However, very soon the anti-feudal character of the movement 
came to the fore. It was forbidden to the consuls to accept fiefs or 
to "commend" themselves as vassals to a lord. The razing of the im- 
perial, episcopal and seigneurial castles within the city, their removal 



12 5 4 THE CITY (NON -LEGITIMATE DOMINATION) [ Ck. XVI 

to a place without the walls (this is found especially in the city privi- 
leges granted by the Salic emperors), the establishment of the principle 
that no castles could be built within a specified area around the city 
and that the emperor or other city lords should not have the right to be 
quartered within the city walls— these were among the first political 
achievements of the new regime, obtained either by force or by extorted 
or purchased grant from the emperor or the bishop. 

The main legal achievement of the urban revolutions was the crea- 
tion of a special trial procedure which excluded irrational means of 
evidence and in particular the test by duel (this is mentioned in many 
eleventh century privileges). The same interests thus assert themselves 
here as were catered to by the concessions of the English and French' 
crowns to the burghers. The legal gains further comprised the prohibition 
against hailing burghers before non-urban courts, and the. codification 
of a special rational law for urban citizens which the court of the consuls 
was to apply. 

In this manner the purely personal and temporary coniurationes 
developed into permanent political associations whose members were 
collectively, as urban citizens, subject to a special and autonomous law. 
Formally, the new urban law signified the extinction of the old per- 
sonality principle of the law. Substantively, it meant the destruction of 
the feudal associations and of patrimonialism, but not yet in favor of the 
principle of general compulsory membership for a]] inhabiting a given 
territory. The "bourgeois" law was, rather, a status right of the members 
of the swom fellowship of burghers; one was subject to it by virtue of 
membership in a status group which comprised the full citizens and 1 
their dependent clients. Even in the sixteenth century we still find in 
areas where the domination of the noble families in the cities had been 
preserved — as, for instance, in most Dutch communities — that the urban 
delegations to the provincial diets and to the Estates General did not 
represent the city as such, but only the urban nobility; this is revealed 
by the fact that frequently, in addition to the patrician delegation, repre- 
sentatives of the craft guilds or other non-noble strata of the same city 
appear, who voted separately and definitely were not combined with 
the delegation of the patriciate of their city into a common city repre- 
sentation. This particular phenomenon did not appear in Italy, but in 
principle the situation was often similar. Although normally the urban 
nobility should at least have severed its ties with the feudal association, 
this was by no means always the case. The nobleman usually owned 
casdes and manorial estates outside the walls in addition to his town- 
house, and was thus as a feudal lord and fellow landowner a member 



» ] The Occidental City ' 2 5 5 

also of political associations other than that of the urban commune. 
In the early period of the Italian comune the municipal regiment was in 
practice firmly in the hands of families with a knightly style of life, 
regardless of whether the act of consociation formally prescribed a 
different arrangement and of whether the non-noble strata had in the 
past even effectively obtained a temporary share in the regiment. The 
military importance of the knighthood gave it predominance. 

In northern Europe, particularly in Germany, the old scabinic fam- 
ilies (Schoffengeschlechter) played a decisive role to an even stronger 
degree than in the South, retaining administrative control in the early 
period even formally, or at least informally by combining offices in a 
personal union. At times, depending upon the distribution of power, 
the previous agents of the city lord, especially of the bishops, the de- 
pendent seigneurial servitors (ministerialei) , also regained a share in the 
administration. Especially in cases where the usurpation had not been 
completely effective — and this was not infrequent — the lord, usually a 
bishop, obtained membership in the council for his ministeriales. In 
large cities like Cologne and Madgeburg the bishops had staffed their 
administration entirely or in part with free "bourgeois" Schoffen; these 
now tended to turn from sworn officials of the city lord into sworn repre- 
sentatives of the commune, associated with represen' itives of the coniuratio 
or sharing the administrative tasks with them. In the cities of Flanders, 
Brabant and the Low Countries, echevins appointed by the count began to 
be joined in the thirteenth century by town councillors or jurati (i.e., sworn 
delegates — their very name indicates the origin in an usurpatory conxura- 
tto) and by "burghermasters." These administrative representatives of the 
burgher strata were usually organized into separate "colleges," although 
at times they met with the echevins u a common assembly. They were 
delegates of a burgher fraternity which in Holland continued to exist 
into a later period as the corporation of the Vroedschap.™ 

One must picture the conditions of this early period as very un- 
stable, with almost no formal regulation of the distribution of powers 
and competencies. Personal influences and connections were decisive 
as individuals gathered functions of many types into a single set of 
hands. A formally separate municipal administration with special office 
buildings and a town hall did not exist. In It,aly as in Cologne, the 
citizenry ordinarily assembled in the cathedrals, while the executive 
committees probably met in private houses or in club rooms. Meetings 
in club houses can be specifically documented. During the time of the 
revolutionary usurpation in Cologne [early lith century] the "house of 
the rich" Cdomus divitum) seems to have been identical with the "house 



I 1 5 6 THE CITY (NON-LEGITIMATE DOMINATION') [Ch. XVI 

of the burghers" (domus civiurn), i.e., the seat of the administration, 
just as the leaders of the club of the rich — the Richerzecke — must to a 
large extent then and later have been identical with the holders of the 
scabinic and other important municipal offices. Both of these hypotheses 
presented by Beyerle are almost certainly correct. 30 An urban knight- 
hood as significant as that in Italy did not exist in Cologne. In England 
and France the merchant "companies" played the leading role. 31 In 
Paris, the wardens of the hanse of water merchants were even formally 
recognized as representatives of the citizenry. 32 In most of the large and 
old French cities, too, the urban communes originated in revolutionary 
usurpation by associations of burghers, merchants and urban rentiers- 
who either united with the resident knights — as in the South — or with 
the confraternitates and guilds of the artisans — as in the North — to 
seize political power. 



y. The confraternitates in the Germanic North 

Associations such as the above-mentioned were not identical with 
the cottiuratio, but they played an important role in its genesis, especially 
in the North. Due to the lack of an urban knighthood, the sworn con- 
fraternities of the Germanic North displayed archaic traits that were 
largely missing in the southern European countries. The confraternities 
might, of course, be specifically created for the purpose of political as- 
sociation and usurpation of power from the city lord. But the revolt 
tionary movement in the North and in England could also take its 
point of departure from the mutual protection guilds (Schutzgildeny 
which had there sprung up in great numbers. These had by no means 
been primarily created for the purpose of influencing political condi- 
tions. Originally they were substitutes for something their members 
frequently very much missed in the early medieval city: the backing of a 
clan, and its protective guarantees. They provided the services otherwise 
supplied by the clan: help in case of personal injury or threats, aid in 
economic distress, elimination of feuds between members by means of 
peaceful conciliation, and payment of the wergild liabilities of members 
(in an English case"). The guilds provided for the members* social 
needs by holding periodic feasts — a practice traceable to pagan ritual 
meals — and for his funeral with the participation of the brethren; they 
guaranteed salvation of his soul through good deeds and secured for him 
from the common treasury indulgences and the benevolence of powerful 
saints. It goes without saying that such protective associations also repre- 
sented joint interests, including economic interests. 



ii ] The Occidental City 1257 

While the city unions in northern France were primarily sworn 
peace unions without other guild attributes, the Nordic and English 
city unions regularly bore the character of a guild. In England the 
typical form of the city union was the [single] Gild Merchant, which 
monopolized retail trade within the city. 34 The German merchant guilds 
were in the majority of cases specialized in terms of particular branches 
of trade as, for example, the often powerful drapers' guild and the re- 
tailers' guild. This branch differentiation led to the use of the guild as 
the organizational form of long-distance trade — a function which doe* 
not concern us here. 

The cities did not, as was thought by many, 35 originate in the guilds. 
But the converse is always true: the guild originated in the cities. 
Furthermore, the guilds actually obtained domination only in a small 
number of cities (primarily in the North, and especially in England, 
as sum-ma comwia); 3 ' it was rather the patrician "families" — not at all 
identical with the guilds — who initially seized power in the cities. For 
the guilds were not identical with the coniuratio, the sworn city union. 
Lasdy, it should also be noted that the guilds were never the only type 
of association in the city. Beside them we find the religious associations, 
comprising representatives of several or .of all occupations, and the 
purely economic, occupationally differentiated associations, the craft 
guilds (Zunfte')} 7 Throughout the Middle Ages the creation of reli- 
gious unions, the confraternitates, occurred alongside that of associations 
with a political, guild or craft character, and the two types of move- 
ments overlapped and intersected in many ways. Especially among the 
artisans the religious associations played a significant role, which varied 
over time. The fact that the oldest documentable religious society of 
artisans in Germany, the fraiernitas of the Cologne bedsheet weavers 
(Bettzxechen-weher) of 1 149, is younger than the corresponding occupa- 
tional association 38 does not in itself prove that the occupational union, 
'or rather the specifically professional purpose of the union, has every- 
where been the original and earlier form of organization. Nevertheless, 
for the craft guilds this seems to have been the rule. It may be ex- .J 
plained with the supposition that the associations of free craftsmen, at , } 

least outside of Italy, had been formed in the image of the seigneurial 
organization of dependent tributary artisans in units headed by a master. 
But in other cases the religious fraternitas may have been the crystalliza- 
tion-point for the later occupational association. Thus, as recently as in 
the last generation, the formation of a Jewish trade union in Russia 
would begin with the purchase of the articles most important for the 
orthodox Jew; the rolls of the Torah. Similarly, numerous medieval *•>' 



r 2 5 8 tub city (woN-LMrnMATu domihation) [ Ck. XVI 

aMOciations of a basically occupational orientation would bring social 
and religious interests to the fore or would at least, if they were pri- 
marily occupational, attempt to obtain some religious recognition. This 
was done by most guilds and in fact by all types of associations in the 
Middle Ages. This was by no means merely a cover-up for strong 
material interests. The fact that the earliest conflicts of the journeymen 
associations of later centuries arose not over working conditions, but 
over questions of religious etiquette, such as rank order in processions 
and similar problems, demonstrates again how strongly even the status 
evaluations of the clanless burgher were conditioned by religions ele- 
ments. But at the same time the other important point becomes quite 
clear: the enormous contrast between this type of social situation and 
that of taboo-closed castes which would have precluded any kind of 
conf raternization into a commune. 

By and large, the membership of these religious and social fraterni- 
ties, whether they be thought older or younger in origin, was only 
approximately coterminous with that of the official occupational associa- 
tions, the merchant companies and craft guilds, of which we will have to 
say more later on. The occupational groupings themselves, in turn, were 
not always, as is often believed, splinter organizations which had with- 
drawn from an original unitary guild of all burghers (although this did 
in fact occur at times), for some of the craft guilds were considerably 
older than the oldest coniuraticmes. Nor were occupational unions initial 
stages or forerunners of coniumtiones, for they appear throughout the 
world, even where no burgher commune has ever arisen. The effect of 
all these associations was essentially indirect. They facilitated the city 
union by habituating the burghers to the formation of coalitions in the 
pursuit of common interests, and by providing models for the cumula- 
tion of leadership positions in the hands of persons who had gained 
experience and social influence in the direction of such associations. 

It was quite natural, as the further development confirms, that in 
tie North, too, it should everywhere have been the rich burghers with 
ttt interest in the independence of urban trading policy who actively 
participated alongside the nobility in the formation of the coniuratio, 
financed it, kept the movement going, and forced the mass of the citi- 
*anry to adhere to it by swearing the oath — an activity of which the 
tight of the Cologne Hicherzeche to grant membership in the commune 
k apparently a survival. Wherever economic associations of the burghers 

C'cipated at all in the eoniuratio movement alongside the patrician 
lilies," only the merchant guilds were normally involved. In Eng- 
land we find the petty burghers, at that time in revolt against the 
chantiy, complaining as late as the reign of Edward II [1307-1327] 



it ] _ . The Occidental City i 259 

that the fotenxes were demanding oaths of obedience from them and 
from the craft guilds, and that they were levying taxes by virtue of sucft 
usurped powers.** Similar phenomena could probably observed in mod 
of the "spontaneous" cases of usurpatory urban confraternization. 

Once the revolutionary usurpations had met with success in several 
large cities, the political lords who founded new cities or granted new 
charters to existing ones hurried, for reasons of competition, to concede 
to their burghers varying portions of the rights elsewhere obtained 
without waiting for the formation of formal unions. Thus the attain-^ 
ments of tie city unions tended to spread universally. This was further 
aided by die fact that the entrepreneurs managing the setdement opera- 
tion or the prospective settlers themselves, wherever they carried suf- 
ficient weight vis-a-vis the city founder by virtue of wealth or social 
rank, secured charters that granted the use of the municipal law of one 
of the old-established cities. Thus the burghers of Freiburg received a 
ckarter grant of the Cologne law, numerous South German cities wer* 
.chartered with the law of Freiburg, and Eastern cities received the law 
of Magdeiurg. In disputed cases the ooNyt of the city whose law had 
been granted was appealed to for authoritative interpretation. The 
wealthier the settlers desired by a city founder, the larger were the 
concessions he found himself forced to grant. The 24 coniuratoret fori 
in Frcibuag, foe instance, to whom Konrad von Zahringen ; \owed the 
pi ese rvatio ii of the liberties of the burghers in hie new city,** played a 
role aquivalent to that of the Richerzeche in Cologne. They were 
granted considerable personal privileges, and as conmUi of the com- 
mune they initially had the city government in their hands. 

Among the most important attainments that were gained when 
princes or manorial lords founded a city or granted privilege* to it was 
the organization of the citizenry as a "commune" (Gewetttde) with its 
own administrative organs. In Germany these were headed by a "coun- 
cil" (Rat), which was considered an indispensable aspact of a "city" 
and its freedom. The burghers claimed the right of autonomously ap- 
pointing its members — a right which was not obtained withaut struggle. 
As late as 1232, Emperor Frederick II prohibited aH city eeuncik and 
mayors instituted by the burghers without consent of the biihopt, and 
the Bishop of Worms obtained for himself or his representative the 
•kaiimanthip in the council and the right to appoint its naembers.* 1 
In Stfaatburg toward the end of the twelfth century a council, consisting 
of MpMCentetives of the citizenry and five episcopal mimtteriaUs, re- 
placed the bishop's administration. In Basel the bishop managed to 
obtain an Imptfial edict abolishing the council even though, as Hegel 



I 2 6 O THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

assumes," its original establishment had been approved by the Emperor 
himself. But in numerous South German cities the town magistrate 
CSchultkeiss) appointed or confirmed by the lord remained the actual 
head of the" city; the burghers could get rid of this control only by pur- 
chasing the office from the city lord. In the documents of almost all 
South German cities we find with increasing frequency, beside the 
Schvltheiss, a Biirgermeister, who in the end generally assumes first 
rank. In contrast to the Sckttkkeiss, he was always a representative of 
the city guild, and his office thus originated in usurpation, not in the 
seigneurial administration. However, this fourteenth-century Biirger- 
meister was — due to the different social composition of many German, 
cities — usually no longer a representative of the patrician families, as 
the Italian consules had been, but rather the representative of the 
occupational associations. Thus he belongs to a later stage of develop- 
ment, whereas the German counterparts of these Italian magistrates were 
the scabini non jurati and consules of an earlier period.** 

In the beginning, active membership in the burgher association 
was bound up with possession of urban land which was inheritable 
and transferable, exempt from compulsory services, and either free of a 
seigneurial charge (Zins) or charged only with a fixed amount. How- 
ever, urban land was for city purposes subject to a municipal tax 
(ScJwsO; in Germany, in fact, this became the identifying characteristic 
of bourgeois land tenure. Later other kinds of property also became sub- 
ject to municipal taxation, especially money or monetary metals. Towns- 
men not possessing land of this kind originally could only be protected 
guest residents of the city, regardless of their social status. 



8. The Significance of Urban Military Autonomy 
in the Occident 

-- The right to participate in urban offices and in the council under- 
went various changes which shall be discussed in the next section. But 
first we must once again raise the question of what ultimately caused 
the development of cities to start around the Mediterranean, and later 
in Europe, while preventing it in Asia. One answer has already been 
supplied, namely, that the development of an urban confraternity, and 
thus of an urban commune, was elsewhere impeded by the magic ties 
of the sib association and, in India, of the castes. In China the sibs were 
the bearers of the central religious concerns, the ancestor cult, and were 
therefore indestructible. In India the castes were carriers of a specific 



it] The Occidental City i 2 6 i 

conduct of life, upon the observance of which the individual's fate in 
his next incarnation hinged; hence they were ritually exclusive vis-a-vis 
each other. But while the ritual obstacles to confratemization were 
indeed absolute in India, the same cannot be said for'China — and even 
less for the Near East — where the sib ties constituted only a relative 
impediment. For these areas a quite different element still needs to be 
considered: the differences in the military constitution and, above all, 
in its economic and sociological foundations. 

The necessity of river regulation and an irrigation policy in the Near 
East and in Egypt, and to a lesser degree also in China, caused the 
development of royal bureaucracies; initially these were charged only 
with construction tasks, but from this core ensued the bureaucratization 
of the entire administration which enabled the king, through this ap- 
paratus and the revenues supplied by it, to take the army administration 
under his own bureaucratic management. The "officer" and the "sol- 
dier," an army recruited by compulsory draft and equipped and fed 
from storehouses, became the foundation of military power. The result 
was the separation of the soldier from [ownership of] the means of war- 
fare -and the military defenselessness of the subjects. On such ground no 
political commune of burghers independent from the royal power could 
arise. The burgher was here simply the non-soldier. Things were quite 
different in the Occident where up to the time of the Roman emperors 
the principle of self-equipment of the armies prevailed, whether these 
were peasant levies, knightly armies, or burgher militias. But this signi- 
fied the military autonomy of the individual obligated to military service. 
The position of King Clovis vis-a-vis his military following illustrates a 
principle which is basic for all self-equipped armies: that the lord is to 
a very large extent dependent upon the good will of the soldiers whose 
obedience is the sole basis of his political power.* 4 He is more powerful 
than any individual one of them and also stronger than small groups, 
but an) larger association of his military men against him leaves him 
quite powerless. In this political structure the lord lacks the bureaucratic 
apparatus — an instrument of compulsion which is blindly obedient be- 
cause of its complete dependence; if the strata on whom his rule is based 
coalesce against him, he cannot have his way unless he comes to terms 
with the militarily and economically independent honoratiores who staff 
his administrative positions and supply his dignitaries and local officials. 
But such associations have always taken shape in the Occident whenever 
the lord approached his militarily independent subjects with new eco- 
nomic demands, particularly if these were demands for money payments. 
The rise of the "Estates" in the Occident — and only there — can be ex- 



I 2 6 2 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XV 

plained from these relationships, and the same goes for the developmen 
of the corporate and autonomous city commune. The financial strength 
of his urban subjects forced the lord to turn to them in case of need 
and to negotiate with them. To be sure, the guilds of India and Chins 
and the ''money men" of Babylon also possessed financial strength 
which compelled the king even there to impose certain restraints upon 
himself in order not to scare them away. But it did not enable the 
townsmen, however rich they may haye been, to Write and to offer a 
military check to the city lord. By contrast, all coniuTaticmes and city 
unions of the Occident, beginning, with those:of early Antiquity, were 
coalitions of the armed strata of the ciries. This- was the decisive differ- 
ence. 



NOTES 

j. In Roman law, the institor was a person appointed by the owner of a 
commercial undertaking to operate it in his stead; he could conclude contracts for 
which the principal was liable. Usually slaves or persons under the patria potestas 
were utilized for this purpose. Cf. ait. "institor" in Patdys RedUncychpSdie der 
cfassisehen AltertumsuHssenschaft, newly edited by Oeorg Wissowa (Stuttgart 
1894-1965; henceforth cited as: Pauly-Wissowa, RE), vol. IX (1916), cols. 
1 564—65. 

2. That is, with merchandise (merx) forming part of their peculiunt, on 
which see "Soc. of Law," above, ch. VIII ;», n. 1 24. 

3. "Town air makes free." On the substantive content of his proverbial prin- 
ciple, see Hans Strahm, "Stadtluft macht frei," in Das Problem der Freiheit in der 
deutschen tend schweizerischen Gesckichte (Institut fur geschichtliche Landes- 
forschung des Bodenseegebiets, "Vortrage und Forschungen," ed. Th. Mayer, vol. 
II; Konstanz: Thorbeke, 1955), 102-121. 

4- On this military fellowship in the 14th century Zurich, see below, sec. 
iv, n. 1. 

5. Brodie Cruickshank, Eighteen Years on the Gold Coast of Africa (Lon- 
don; Hurst & Blackett, 1853), I, 140-52 CCabboceers, 242; pynins, 250). (W) 

6. Albert Hermann Post, Afrikanische Jwisprudenz: Ethnologtsch-juristische 
Beitrage zur Kenntniss der emheimiscken Rechte Afrikas (Oldenburg: Schuke, 
1887). (W) 

7. "The main reason for the discontent of [Mohammed's son-in-law] Ali 
with [the first Caliph] Abu Bekr was that the latter was not willing to treat cer- 
tain pieces of land, which the Prophet had owned as head of the community, as 
the inheritance of the family of Mohammed; the conflict over the 'gardens of 
Fadak' in particular induced Ali to found his party" (Snouck Hurgronje, Mekka, 
I. 3 2 )* Shi'ah means "party"; in time the term became restricted to that section 
of the Moslem movement which considered only the Alids rightful successors of 
the Prophet. 

8. On the Chinese sibs and Indian castes in their relation to the city, cf. 
Weber's more extensive observations in "Konfuzianismus und Taoismus" and 



« ] The Occidental City 1163 

"Hinduismus und Buddhismus," GAzRS I, 290a., 3535., 375$.; II, 36JF. (Re- 
ligion of China, 1 3E, 66ff., 86£; Re%(0» of India, 348.). 

$. A tradition of a tingle founding act, called synoikumos (i.e., housing or 
lettllng together), existed in many Greek poleis. In some places this may have 
reflected an actual fact; in others, the tradition interpreted as one single act a 
merger and subjugation process in which a territory with perhaps several pokis 
and other political communities had gradually become united under a single 
center. This was certainly the case with the Attic synoikismos .ascribed to toe 
mythical hero Theseus. Cf. Victor Ehrenberg, The Greek State (New York; 
Norton, 1964), x6&. 

10. On the consorterie of the Sienese nobility, cf. Ferdinand Schevill, Siena. 
The History of a Medieval Commune (New York: Harper Torchbooks, 1964), 
278-280. Some details of the statutes of the tower associations are described in 
Casimir Chledowski, Siena (Berlin : Cassirer, 19 1 3), I, 68ff. 

11. A Hantgemal was the inheritable family estate of free, especially 
knightly families in the Germanic Middle Ages. In the Old-Saxon Hetiand, the 
Saviour and his Apostles are featured in "contemporary" dress as a Germanic 
warrior-king with his military following. * 

12. After the Exile, ca. 450 b.c. For the listings of the clan delegations and 
the organization of the synoikismos, separating those who "could not shew their 
father's house nor their seed," cf. Ezra 8; Neh. 7 and 1 r. 

13. Bishop Riidtger of Speier, who stated in 1084 that "putavi milies ampli- 
ficare honorem loci nostri, si et Judeos colligerem." Cf. Karl Hegel, Die Entsteh- 
ung des deutschen Stadtewesens (Leipzig: Hirzel, 1898), 1 13.' 

14. Kolner Schreinsurkwtden des zwolften Jahrhttnderts, ed. Robert Hoen- 
iger (Gesellschaft fiir rheinische Geschkhtskunde, "Publikationen," I/1-2; Bonn: 
Weber, 1884— 1892). A Cologne guild document of 1 149 shows even the "town 
hall," the domus avium, as inter Judeos sita. Cf. Hegel, Stadtewesen, op. cit., 
115. 

1 5. On the gertm, cf. A], 3zff 

16. City councillors. The point Weber (again) wishes to make here seems 
to be that in Antiquity the traditional or artificial "tribal" subdivisions of the city 
were confraternities, but not the city as a whole, for the Attic prytans were dele- 
gations of the individual phylae (tribes). Under the Cleisthenian constitution 
each of the ten phyiae sent 50 prytaneis, chosen by lot, to the Council of Five 
Hundred; each of these delegations served as the executive committee of the city 
for orie tenth of the year, which periods were called "prytanies." On the working 
af this system see Ehrenberg, The Greek State, 31, 63 ff.; A. H. M. Jones, Athe- 
nian Democracy (Oxford: Blackweil, 1964), ch, V. 

1 7. J. Hatschek, Englixhe Vetfassvngsgeschichte, 1 1 3 ("cowwjwtw non est 
zapax libertatis"), 269 (first appearance as corporations), (W) 

18. Lay judges; a Carolingian institution found as schepen, ichevins, scabini 
hroughout continental Europe. On their significance, see "Soc. of Law," above, 
lVni:«i, n . 53. 

19. On "personal law" and "personality principle," cf. "Soc. of Law," above, 
:h. Villi*:*. 

20. Konrad Beyerle, "Die Entstehung der Stadtgemeinde Koln," Zeitschrift 
let SavignyStiftung fiir Rechtsgeschichte, Germ. Abteilung, XXXI (19 10), 1- 
>7- (W) 

21. On the Ding (or thing: the Germanic judicial assembly) and Dingge- 
neirachaft, cf. "Soc. of Law," above, ch. VIII: i«:6. 



I 1 6 4 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

22. I.e., rather than the new organs probably created by the 1112 conmratio; 
die latter do not become prominent in the documents until half a century to a 
century later. The Schofjenbank (board of lay judges) also served many admin- 
istrative functions under the rule of the city lord (here: the archbishop) and 
together with the magistri of the parish communities constituted the old adminT 
istrative structure. The Altstadt was the old Roman settlement, the only walled 
part of the city until 1 1 06 when after the temporary expulsion of the archbishop 
several suburbs were included in a new town wall; the Saint-Martin suburb out- 
side the old wall on the river flats was the market settlement. See Beyerle, "Die 
Entstehung der Stadtgemeinde Koln," loc. tit., 67. 

23. Complaint by Archbishop Konrad of Hochstaden, in his Schiedsspruch 
of 1258. Cf. Hegel, Stadtewesen, op. tit., 185; id., Stadte und Gilden der ger- 
manischen Vdlker im MitteUtlter (Leipzig: Duncker & Humblot, 1891). II, 33^ 
40. 

24. On the edicts of Emperor Frederick II of 1232, cf. below, n. 40. 

25. For much of the following, cf. Carl Hegel, Geschichte der StSdteverfas- 
sung in Italien (Leipzig: Weidmann, 1847), II, chs. 4-6, which Weber seems to 
have had at hand while writing this section. 

26. On the status of capitanei, valvassores and cives, cf. Hegel, Stadteverfas- 
sung, op. cit., II, i44ff.and 161L 

27. Compagna communis was the name of the association in Genoa, probably 
from 1099 on. Cf. Hegel, Stadteverfassung, op. o't.,11, 178s. 

28. The alliance of the bishop and the Genoese Visconti, descendants of the 
tenth-century vicecomes Ydo, in the compagna of 1099 and later years was di- 
rected against the imperial margrave. The office revenues appropriated by the 
viscountal families included gate, port, market and passport fees. Cf. Erik Bach, 
La dti de Gines au X1I< siecle ({Copenhagen: Nordisk Forlag, 1955). 34, 37. 43> 

29. On the development in the Low Countries, cf. Hegel, Stadtewesen, op. 
cit., ijoff. For details on the Vroedschap (i.e., wisdom — the sapientes of the 
Latin terminology) guild, which existed in various Dutch towns into the 15th 
century, see Hegel, Stadte und Gilden, op. cit., II, 267-72. 

30. Beyerle, "Die Entstehung der Stadtgemeinde Koln," loc. cit., 64-67. The 
hypotheses actually were first proposed by H. Keussen in "Die Entwicklung der 
alteren Kolner Veifassungsgeschichte und ihre topographische Grundlage," West- 
deutsche Zeitschrift, XXVIII (1910), 503^ 

31. On English merchant "companies" and their role in local government, cf. 
Sylvia Thrupp, The Merchant Class of Medieval London 1300-1500 (Ann Ar- 
bor: The University of Michigan Press, 1962), chs. I— II. 

32. On the Paris hanse des marchands de I'eau, cf. Henri Pirenne, Economic 
and Social History of Medieval Europe (New York: Harcourt, Brace Harvest ed., 
n.d.), 94 and sources given ibid, in tn. 14; Hegel, Stddte und Gilden, op. tit., II, 
86-110. 

33. Cf. Hegel, Stadte und Gilden, op. cit., I, 20. 

34. On the English Gild Merchant, cf. Cambridge Economic History of 
Europe, III, tooff. 

35. Allusion to a dispute that was bjtterly fought among German historians 
of the turn of the century. For the latest position and a summary of the debate, 
cf. Edith Ennen, Fruhgeschichte der eumpdischen Stadt (Bonn: Rohrscheid, 
1953). 165-179 C'GUde und coniuratio"). 

36. The Danish term for guild was getag: drinking bout, feast. In the Latin 
documents this was rendered as convivium; 3 summum convi viutn_ or supreme 



n ] The Occidental City i 2 6 5 

city guild is~mentioned in the Schleswig Siadtrecht of ca. 1200. Cf. Hegel, 
StMte und Gilden, op, tit., I, 6, 149, 163. 

37. Following the standard German terminology, Weher differentiates be- 
tween Gilden and Ziinfte, the former associations in which mercantile interests 
were dominant, often single associations of the "whole town," and the latter 
groupings in which the producers were more important The dividing line, how- 
ever, is not hard and fast (see Weber's own caution below, in sec. t»:5)- In medi- 
eval English the latter kind of union used to he called a "craft" or "mistery," hut 
modem English usage applies the term "guild" to both groups. We render the 
German Zvnft alternatively as craft guild or "craft," reserving the unadorned term 
for the German Gilda. 

38. Cf. Hegel, Stadtewesen, op. cit., i2of. 

39. Cf. Hatschek, Englische Verfassungsgeschichte, ^6ji. 

40. In the foundation chaiter of 1120. Hegel, St&dtewesen, op. cit., jSff., 
reprints part of the document. 

41. Statutum in favorem priit&pum, issued at the Diet of Ravenna, 1231- 
1232, at the behest of Bishop Heinrich of Worms and some other bishops and 
princes. Bishop Heinrich established his rights through a treaty with the city in 
the following year after having obtained an Imperial ban against his recalcitrant 
subjects. Cf. Hegel, Stadtexoesen, op. cit,, lyyi. 

42. Hegel, StMdtewesen, op. cit., 182. This prohibition (°f 1218) does not 
seem to have been very effective, for a few years later the Basel council was still 
— or again — in existence. On the Strassburg developments, see ibid., 178—180. 

43. E.g., in the unsworn Cologne Schbften of 1258 (cf. supra, at n. 23) and 
the Richerzeche members of the Cologne coniuratio of n 12 mentioned earlier, 

44. Clovis (Chlodovech), Merovingian king, ruled 481-511. Weber un- 
doubtedly has in mind the famous incident of the vessel of Soissons related by 
Gregory of Tours (Historic Francorunt, 11:27). Clovis, wishing to return to the 
church from which it had been seized a certain sacred vessel, had to beg the 
assembled array to let him have it extra partem, i.e., beyond his share of the 
booty as determined by lot. The refusal of a single warrior thwarted the king. 
The sequel of the story, however, indicates that even under these conditions the 
early feudal king was not without certain disciplinary powers: at the next regular 
"Marchfield" or inspection-of-arms, King Clovis, like any experienced master ser- 
geant, found reason to criticize this man's weapons and lawfully bashed in his 
head. 



I* 



I 1 6 6 THE Cm (NON-LBGmMATE domination) [ Ck. XVI 

t t * 

111 

The Patrician City in the Middle Ages 

and in Antiquity 



i , The Nature of Patrician City Rule 

Since as a rule all landowners of the city participated in the contu- 
ratio Cand not only the leading konoratiores), the burgher assembly — in 
Italy called the parlamentum — was officially considered the highest and 
sovereign organ of the commune. This notion of popular sovereignty 
was often formally retained, even though in fact the notables were com- 
pletely dominant, especially in the early period. The qualification for 
the offices and for participation in the council was soon also formally 
restricted to a limited number of patrician "families," and in many cases 
it was commonly understood from the very beginning, if only implicitly, 
that they alone were qualified for the council seats. Even where this 
was not the case, a limited ruling circle evolved quite naturally — as can 
be observed especially clearly in England — from the fact that only those 
who could afford it economically participated with regularity in , the 
meetings of the burgher assembly and, what is more important, took the 
time to consult with each other on the management of affairs. For 
participation in urban administration everywhere was at first felt to be a 
burden, which was accepted only to the extent that an explicit obliga- 
tion existed. In the early Middle Ages the burghers had to be present 
at the three regular meetings (.echte Dmge), but those who did not have 
direct political interests stayed away from the non-compulsory "bid" 
meetings (gebotene Dinge). The direction of affairs quite naturally fell 
to men who were respected because of their wealth and, not to be for- 
gotten, their military power, which in turn rested upon wealth. 

Hence, as the later documents on the procedures of the Italian 
parlamenta show, these mass-meetings very rarely represented anything 
more than audiences which either passed the proposals of the notables 
by acclamation or rioted against them. In the early period, as far as is 



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Hi } The Madiewl <md Ancient Patrician City 1267 

known, they never determined the elections or influenced the measures 
of die city administration in any continuous and decisive manner. Often 
the majority was formed by people economically dependent upon the 
notables. It is thus logical that the later rise to power of the yofdlo was 
everywhere accompanied by the displacement of the tumultuous general 
burgher assemblies in favor of a smaller assembly consisting of delegates 
or of a narrowly circumscribed group of qualified burghers. And it is 
equally logical that the beginning of the tyrannies and the overthrow of 
the fofolo should have been marked, [as in Florence in 1531], by the 
*evivil of the old popular "parliaments," against which even Girolamo 
Savonarola had [leas than forty years] earlier been warning the people 
of Florence. 

In fact, even tfcoMk often not in formal law, the city arose as or soon 
became a status aeaoaMajon lad by a group — of varying size — of honor- 
miores. The peculiaritMt of thic stratum have been diacussed elsewhere. 
The cU f*cto domination could either turn into a legally sanctioned 
monopolization of the city government, or it could be undermined or 
completely removed by a series of further revolutions. The notables 
monopolizing the urban administration are usually termed a "patriciate 
C'tU* Geschleckter" — literally: "the families"), and the period of their 
predominance in administration we call "patrician domination" (G«- 
$chlechterh€rrschaft^. 

The patrician "families" were not altogether homogeneous. What 
they had in common was that their power position rested on landed 
property and an income not derived from their own production estab- 
lishments. But beyond this they could show the most diverse character^ 
istics. In the Middle Ages one particular trait of the external conduct of 
life had a special significance for the formation of status groups, namely: 
a knightly mode of life. From this derived the eligibility to participate 
in tournaments, the capacity to receive a fief, and all other attributes of 
status equality with the non-urban petty nobility in general. At least in 
Italy, but in the majority of cases also in the North, only the urban 
strata that had these characteristics were counted among the patriciate. 
If nothing to the contrary is specified, we shall in the following 11 potiori 
always think of this trait when the patrician "families" are Under dis- 
cussion — keeping in mind, of course, that there always eirist fluid transi- 
tional stages. 

In some extreme cases patrician domination led to the emergence of 
a specifically urban nobility. This happened in particular wherever &• 
development was strongly influenced, as in Antiquity, by the oversea* 
rwlicy of a trading city. The classic example is Venice. 



12 6 8 THE CITY (NON-LEGI1TMATE DOMINATION) [ Ch. XVI 

2. The Monopolistically Closed Rule of the Nobili 
in Venice 1 

The early development of Venice was shaped by ^ie increasing 
localization of general administration and, in particular, of army recruit- 
ment which had begun already in Hadrians reign [a.d. 117-138] and 
which was furthered by the ever more liturgical character of the late 
Roman and Byzantine state. The soldiers of the local garrisons were 
increasingly recruited from the local population, which in practice 
meant that they were furnished from among their dependent coloni by 
the local estate owners. The " [military unit, the] numerus, was com-- 
manded by a dux and his subordinate officers, the trihunl The tribu- 
nate, too, had formally become a liturgical burden, hut at the same time 
it was in fact a privilege of the local possessores, the estate-owning 
families who supplied these officers. As everywhere ' else, this dignity 
had in practice become hereditary in certain families. The dux, how- 
ever, continued to be appointed from Byzantium into the eighth cen- 
tury. 

This military nobility of tribunitian families formed the core of the 
oldest urban patriciate, With the shrinking of the money economy and 
the increasing militarization of the Byzantine Empire, the power of the 
tribunitian nobility completely overshadowed the curiae and the de- 
fensores, [the civilian local authorities} of the Roman period. 2 The 
revolution which initiated the process of city formation in Venice was 
directed, as in all of Italy in a.d. 726, against the iconoclastic govern; 
ment of that period and its officials and brought about, as a permanent 
result, the election of the dux Cdoge) by the tribunitian nobility and 
the clergy. But scon afterwards began the struggle of the doge, who 
wanted to develop his position into a hereditary patrimonial city- 
kingship, against his adversaries, the nobility arid the patriarch whose 
interests were violated by the prince's attempts to set up a patrimonially 
controlled church QHgenkirche) — a conflict which was to last for three 
centuries. The doge was supported by the imperial courts of the East 
and the West [Byzantium and Germany]. Byzantium favored his ap- 
pointment of his son as coregent, a device for establishing hereditability 
of the office which was quite in accord with the ancient tradition. The 
dowry of Waldrada, a niece of the Geflnan emperor, supplied the last 
Cartdiano* with the means once more to expand his foreign following 
and, above all, the personal bodyguard upon which the ducal regime 
had been based since 811. 

The character of the doge's rule in that period as a patrimonial city- 
kingship stands out in sharp relief if the following details are con- 



Hi ] The Medieval and Ancient Patrician City 1269 

sidered: The doge was simultaneously a great manorial lord and a great 
merchant; he monopolized (pardy for political reasons) the letter mails 
between the Orient and the Occident, which had to pass through 
Venice, and after a.d. 960, utilizing the occasion of church protests 
against it, also the trade in slaves; 4 * he appointed and dismissed patri- 
archs, abbots, and priests, despite the protests of the church; he was head 
of the courts (jGerichtsherr), appointed the judges and cashiered dis- 
puted judgments, although in this respect he was somewhat restricted 
by the associational principles of the Ding-community which had pene- 
trated into Venice under Frankish influence. The ducal administration 
was conducted through patrimonial officials and vassals and, especially 
in the Venetian foreign settlements, also by means of the church. The 
dynastic tendencies are seen not only in die nomination of a coregent, 
but in one case even in the disposal over the rulership by a testamentary 
declaration. The doge's own possessions were not differentiated from 
public property. He equipped the fleet out of his private means, main- 
h tained mercenary troops and disposed over the labor services that artisans 
owed the ducal palace and which at times he arbitrarily increased. One 
such increase, apparently caused by the growing requirements of his 
foreign policy, provided the final impulse for a successful revolt in 1032 
and offered the hostile nobility the means for reducing the power of the 
doge. As is always the case under conditions of military self-equipment, 
the doge was far stronger thari any individual patrician family, a match 
even for most coalitions, but he could not cope with an association of 
them all. It was such an association which prevailed, as it would now- 
adays, as soon as he approached the patriciate with financial demands. 

The domination of the urban nobility living in Rialto 5 began in the 
wake of these events under rather democratic legal forms. The first act 
of the new regime, appropriately described [by Kretschmayr] as the 
"first constitutional law of the Republic,"* was to forbid the appointment 
of a coregent, a measure directed against establishment of a hereditary 
succession on the Roman pattern. After a quasi-feudal interim period 
during which rights and burdens were divided between the doge and 
the comune as elsewhere between the territorial prince and the feudal 
estates, the election concessions [of each new doge] took care of the 
rest; they formally demoted the doge to the status of a stricdy controlled 
salaried official hemmed in by obstructive court ceremonials, and socially 
reduced him to a yrimus inter pares in the corporation of noblemen. 

It has been quite correcdy observed by Lenel that, just as the power 
position of the doge had formerly been strengthened by his relationship 
with foreign powers, its reduction now also began in the foreign policy 
field, which the council of sajrientes (first documented in 1 1 4 O brought 



1270 THB CITY (NON-LEGITIMATE DOMINATION) [ Cfc. XVI 

under its own control. 7 It should be stressed more strongly, however, 
than has been done that here, just as elsewhere, it was primarily the 
financial pressure of a bellicose colonial and trading policy which had 
made the sharing of public administration with the patriciate unavoid- 
able; in a similar way the financial needs of princely ware under condi- 
tions of a money economy were later to initiate the rise of the Estates 
on the Continent. The Chrysobullon of Emperor Alexios marked the 
end of the commercial reign of the Greeks and established the trade 
monopoly of the Venetians in the East in exchange for maritime protec- 
tion and frequent financial aid to the Byzantine Empire.* Ah increasing 
part of the public, ecclesiastic, and private wealth of the Venetian* cane 
to be invested in the eastern Empire in trade, in ergasteria of all kinds, 
in the fanning of government revenues, and also in landed property. 
The military power developed for the protection of these investments 
led to the participation of Venice in the war of conquest of the Latin 
knights by which she acquired the famous three-eighths share (^warto 
fars et dimidia) in the Latin Empire.* After the codificatioM of Dan- 
dolo, 10 all colonial conquests were carefully treated as legally belonging 
to the commune and its officials, not to the doge; his impotence was 
thereby made final. A public debt and continuous money expenditures 
of the comune were the obvious concomitants of this foreign policy. 
Such financial requirements, in turn, could be met only out of the 
means of the patriciate — i.e., that sector of the old tribunitia» aristo- 
cracy, doubtlessly reinforced by some new nobles, which, because of its 
urban residence, was in a position to participate in the urban opportun- 
ities for accumulating wealth through investing its capital in trade under 
commenda and other types of contracts and in other profit-producing 
lines of business. It was in the hands of this group that both monetary 
wealth and political power came to be concentrated. 

The dispossession of the doge was therefore paralleled by a concen- 
tration of all political power in the patrician-ruled city of Venice, 
whereas the rural territories of the duchy increasingly lost all political 
rights. Up into the twelfth century the (originally tribunitian) honor*- 
tiores of the countryside were at least nominally represented at the 
flacita of the doge. u But with the formation of the comune Vtnetiarum, 
first documented in 1 143, this ceases to be true. After this date, the 
-"Council of Sayientes" appears, which was elected by the ctoei and to 
which the doge swore his oath on the constitution. This*coundl seems 
to have been restricted exclusively to the great landloidc residing in 
Rialto, men who had their primary economic interests in the oversea* 
utilization of capital." 



iii ] The M«m*r«? m*d Ancient Patrician City i 2 7 1 

The differentiation between a "Urge" (legislative) and a "smaH" (ad- 
ministrative) council of notable, which existed in almost all patrician 
cities, can be first documented for Venice in 1187. The de facto dis- 
enfranchisement of the assembly of all landowners, whose acclamation 
fonnally continued to be secured until the end of the fourteenth cen- 
tury; -the nomination of the doge by a small electoral college of nohtli; 
the de facto limitation of the selection of officials to families considered 
eligible for council seats, and also the final formal closure of their list 
(the Serrate del Gr*n Const gUo, carried out 1297-1315; the list was 
the precursor of the later Golden Book) — all these represent only a 
continuation of the above developments, the details of which are here of 
no interest to us. 

The tremendous economic superiority of the patrician families par- 
ticipating in the overseas pesttkai and economic opportunities facilitated 
the monopoliitticn of p om * ' m matr hands. The constitutional and 
administrative techniques el Venice see lentous because of the develop- 
ment of a patrimonial twmsay «f an urban patriciate, extending over 
a large lend and *ea area, wish Ac stttnitsaneous preservation of very 
strict mutual control ol the neble families over each other. The discipline 
of the nobility was never shaken because, like the Sparttates, they 
managed to keep all means ef power very tightly under their grip and 
maintained a more rigidly observed system of secrecy of office than can 
be found anywhere else. 51iat this was possible can in the first instance 
be explained by the solidarity, patently obvious to every individual, of 
the foreign and domestic interests of aii members sharing in the huge 
monopoly profits of the association. This solidarity of interests compelled 
the integration of the individual nobleman into the collective which 
exercised the tyranny. In terms of administrative techniques it was ac- 
complished: 1. By mesns of competitive separation of powers; the office 
authorities of the central agencies overlapped, and the different boards 
of the specialized administrations were almost always furnished with 
both judiciary and administrative power and competed with each other 
for jurisdiction. 2. By means of mutually controlling division of functions 
between the officials administering die ^uSject territories; the judiciary, 
the military, and the financial administration were always in the hands 
of different officials, who were all taken from the nobility. 3. By means 
of short tenures of office and a system of travelling control officials. 4. 
Since the fourteenth century, also by means of a political court of 
inquisition, the "Council of the Ten"; originally formed [in 13 10] to 
investigate a single case of sedition, it turned into a permanent agency 
with jurisdiction over political offences which ultimately supervised the 



1271 THE CITY (NON-LEGITIMATE DOMINATION) [Ch. XVI 

entire political and personal conduct of the nobiU, not infrequently an- 
nulled even decisions of the "Great Council," and altogether acquired 
a kind of tribunitian power, the exercise of which in a swift and secret 
procedure secured it paramount authority in the commune. It was feared 
only by the nobility, and was by far the most popular agency with the 
subjects, who, being excluded from political power, found in it the only 
effective means for bringing a successful complaint against a noble 
official. In this respect it was far more effective than the Roman 
quaestio repetundarum} 3 

The Venetian empire, expanding over ever larger mainland terri- 
tories and increasingly based on the support of mercenary armies, 
presents an especially pure and extreme case of the development of a 
patrician city. But from the very beginning, a phenomenon of a very 
different kind accompanied this concentration of power over large terri- 
tories in the hands of an urban commune and, within it, in those of a 
patriciate. The mounting expenses of the commune, which had made 
it dependent upon the financing patriciate, were caused not only by the 
costs of troops, naval construction and war materials, but also by a far- 
reaching change in the system of administration. For the patriciate had 
found assistance of a peculiarly Occidental sort, in its struggle with the 
doge, in the growing strength of the church bureaucracy. It was no ac- 
cident that the weakening of the ducal power had occurred simul- 
taneously with the separation of state and church in the wake of the 
Investiture Struggle; in fact, the Italian cities in general had turned to 
their advantage the breaking of this bond, which had its origin in the 
princely rights to establish and control their own churches (Jiigenkir- 
chenrecht) and had hitherto constituted one of the strongest supports 
of patrimonial and feudal power. Up into the twelfth century, churches 
and monasteries had substituted for and made superfluous a secular 
power apparatus by leasing the administration of the Venetian foreign 
colonies. But their elimination from the secular administration, an 
inevitable consequence of their separation from the political authority, 
necessitated the creation — at first in the foreign colonies — of a salaried 
lay officialdom. 1 '. This development, too, reached a conclusion for the 
time being in Enrico Dandolo's days. The system of short tenures of 
office, which was based on political considerations, but also on the 
desire to give as many persons as possible a turn in such positions; the 
limitation of eligibility for office ta the noble families; the non-bureau- 
cratic, strictly collegiate administration of the ruling capital ejty itself 
— all these presented barriers to the development of a really prof essional 
officialdom, barriers which were inherent in the character o^the regime 
as a rule by notables. 



/ 



Hi ) The Medieval and Ancient Patrician City i i 7 3 

3 . Patrician Rule in Other Italian Communes: 
The Absence of Closure and the 
Institution of the Podesta 

In the other Italian communes developments took a considerably 
different course in this respect, even during the rule of the patriciate. 
In Venice the permanent closure of the guild of the urban nobility 
against all outsiders had been successful: The acceptance of new fam- 
ilies into the circle of those elegible for a seat on the "Great Council" 
occurred only on the basis of political deserts and by decision of the 
corporation of the nobility; later it ceased entirely. The Venetian no- 
bility had also managed to suppress all feuds between its members, a 
success facilitated by the awareness of the permanently endangered 
position of the collective. None of this can be said of the other Italian 
communes of the period of patrician rule. The orientation to the main- 
tenance of overseas trade monopolies was nowhere else so unequivocal 
and in the awareness of each individual so self-evidendy crucial as the 
basis for the entire existence of the nobility as it was in Venice during 
the decisive period. And one consequence of the feuds raging in all 
other cities between the ranks of the urban patriciate was that even in 
the period of its untrammelled rule the nobility found itself compelled 
to grant a certain amount of consideration to the non-noble strata of 
konoratiores. Finally, the feuds and the deep mutual mistrust of the 
great patrician families precluded the creation of a rational administra- 
tive system on the Venetian pattern. Almost everywhere, a few great 
families, especially richly endowed with land and large folio wings of 
clients and allied with numerous families of lesser wealth, confronted 
each other for centuries, always attempting to exclude each other (and 
each other's allies) from the offices and the economic opportunities of 
the urban administration and, if possible, to drive each other from the 
city altogether. As in Mecca, at almost any given time one part of the 
' nobility was decreed ineligible for municipal office, perhaps exiled and 
frequently even — in contrast to the mutual "courtliness" observed in 
Arabia — outlawed, in which case the victorious party would sequester 
the properties of the vanquished; a reversal of political fortunes simply 
brought an exchange of roles. 

A natural result of this situation was the formation of interlocal 
interest groups. The creation of the Guelf and Ghibelline parties, how- 
ever, was conditioned also by the politics of the Empire and by social 
factors: the Ghibellines, in the large majority of cases, were families 
that had been vassals of the Imperial crown, or they were led by such 



12 7 4 THI CIT]r (nON-UGTIIMATS DOM»ATK>n) [ Ck. XVI 

families. 11 * But for the remaining and more enduring part, these for- 
mations had their origin in the clash «f interests between competing 
cities and, within the cities, in the competing interests of interlocally 
organized aristocratic grouping?. These associations, particularly that 
of the Guelf party, were permanent organizations with statutes and 
registers of war contributions which determined — in a form similar to 
that of the German Ronutrzug roll 11 — what manpower contingents the 
knighthood of individual cities had to supply in the event of a levy. 

Even though the services of the trained knighthood were decisive 
in all military respects, already in the days of patrician rule the non- 
knightly burgher could not be dispensed with for the financing of war- 
fare. The interests of this class in a rational administration of justice, 
on the one hand, and the mutual jealousy of the parries of the nobility 
on the other, caused the development in Italy and some bordering areas 
of the peculiar institution of an aristocratic professional officialdom 
which exercised its functions, so to speak, in travelling the rounds: the 
institution of the podesta. This official replaced the early administration 
by consules drawn from the local aristocracy, executives who formally 
were elected, although in fact the nomination was restricted to and con- 
tested by only a few families. 

The institution of the fodesta originated in the period of the in- 
tense struggles between the communes and the Hohenstaufen emperors, 
a time which had especially increased the need for internal unity and 
the burdens on the financial capacity of the cities. Its high point was 
reached in the first half of the thirteenth century. The podesta was an 
elected official, in most cases called in from another community, ap- 
pointed for a short term of office, equipped with the highest judicial 
power, and normally paid a fixed salary [rather than in fees] which 
made his compensation relatively High compared to that of the consules. 
He was usually a nobleman, but by preference one with a university 
education in the law. He was elected either by the council or, as was 
typical also for most other elections in Italy, by a committee of notables 
appointed specifically for that purpose. The appointment frequently was 
the subject of negotiations with the candidate's native commune, which 
had to give its approval and which occasionally was requested to nomi- 
nate a candidate. The granting of such a request was considered a 
politically friendly act, the denial one of hostile foreign policy. At times 
we find a direct swap of podesta between two communes. The ap- 
pointees themselves not infrequendy insisted that hostages he supplied as 
insurance for good treatment; they haggled for conditions like modern 
professors and refused the call if the offer was not attractive enough. 
The podestti had to bring along a kaighdy following, and especially" his 



Hi ] The Medieval and Ancient Patrician City i 275 

auxiliary personnel— not only the subalterns, but also the jurists, court 
assistants, and deputies, often bis entire staff, whom he paid from his 
own funds. His essential task was the maintenance of public safety and 
order, and above all of internal peace in the city — it was for this that 
an outside official was needed; in addition he often held the military 
command, and he always bad control over the courts. All these duties 
were performed under the supervision of the council. His influence on 
legislation was everywhere rather limited. Not only was the person of 
the podestd frequendy changed as a matter of principle, but also, and 
intentionally, the locality from which he was called. On the other hand, 
the communes sending out such officials seem to have placed some value 
on seeing their citizens officiate in as many positions abroad as possible. 
Hanauer is certainly right in asiuming that this had economic as well 
as political motives: 1 * The high salaries paid abroad constituted a valu- 
able prebendal revenue source for the local nobility. 

The most important aspects of the institution arc found in the very 
formation of a noble professional officialdom, and in the effect of the 
podesta system on ihe development of the law. We begin with the 
former. In an investigation of only sixteen out of sixty cities, Hanauer 
documented, for the fourth decade of the thirteenth century, seventy 
persons who had occupied two, and twenty who had held half a dozen 
or more different podesii positions." Often a man made a life-long 
career in such offices. For the century during which the institution 
flourished, Hanauer reckons with 5,400 podesta terms of office to be 
filled in the roughly sixty [larger] communes [of Imperial northern 
Italy]. 18 Some individual noble families provided candidates through 
several generations. In addition, a very large number of auxiliary officials 
with legal training was required. Beyond the fact that a part of the 
nobility was being schooled in the conduct of an impartial administra- 
tion which, in the nature of the case, was especially strictly supervised 
by the public opinion of the employing communities, a second important 
aspect has to be weighed. In order that the administration of justice by 
a foreign-bom podesta might be possible at all, the applicable law had 
to be codified, rationally elaborated, and interlocally somewhat standard- 
ized. Whereas elsewhere it was the interest of princes and their officials 
in facilitating the transfer of the latter from one place to another that 
led to rational codification of the hw, and especially to the propagation 
of Roman law, in Italy it was the institution of the podesta. .-*. ■ 

In its most typical form, this institution was a phenomenon limited 
essentially to the Mediterranean area. But some parallels can be found 
also in the North — in Regansburg, for instance, where in 1334 natives 
were excluded from the oftee of the Bitrgermeister and a knight from 



I276 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

out of town was called in, who was then succeeded by "foreign" mayors 
for an entire century. This produced a period of relative internal peace 
in a city that had previously been wracked by feuds between the patri- 
cian families and wars with exiled noblemen. 1 * 



4 . English City Oligarchies and Their Constraint 
by the Royal Administration 

In Venice the formation of an urban nobility grew without break 
out of a very pronounced regilrent of honoratiores, ai:d in the remain- 
ing Italian communes patrician rule characterized the beginning of city 
development. In die North, by contrast, the formation of a closed patri- 
ciate proceeded on a different basis and, in part, from quite opposite 
motivations. The development of the English ci*y oligarchy presents 
an extreme but "typical" case. 

The decisive element in shaping English urban development was 
the power of the crown, even though it did not a>nfront the city from 
as firm a position during the early period — not even during the period 
after the Norman conquest — as it could command later. William the 
Conqueror did not attempt to take London by force after the battle of 
Hastings; aware of the fact that possession of this city had always been 
crucial for aspirants to the English throne, he obtained the homage of 
the burghers by treaty. For even though, under the Anglo-Saxons, the 
bishop and the portreeve appointed by the king had been the "legiti- 
mate" authorities of the city — to whom consequendy also the charter 
of the Conqueror was addressed — the votes of the London patriciate had 
carried a decisive weight in nearly every election of the Anglo-Saxon 
kings. The burghers even held that without their voluntary consent 
the English royal prerogatives did not include rule over their city, and 
as late as in King Stephen's time, 10 their agreement was indeed de- 
cisive. Nevertheless, once he had received the oath of homage, the Con- 
queror built his Tower in London, and thereafter the city, like any 
other, was in principle subject to taxation at the king's discretion. 

During the Norman period, the military importance of the cities 
diminished as a result of the unification of the kingdom, the decline of 
threats from the outside, and the rise of the great feudal barons. The 
feudal lords now constructed their fortified casdes outside the cities, 
thus setting into motion the separation of the burghers from the feudal 
military power which, as we shall see later, was characteristic for the 
non-Italian Occident. In contrast to the Italian towns, the English cities 



Hi ] The Medieval and Ancient Patrician City 1277 

at that time almost completely lost the dominance over the countryside 
which they formerly seem to have possessed in the form of extensive 
city "marches"; they became corporate bodies essentially oriented to eco- 
nomic pursuits. The barons, for their part, began here — as everywhere 
— to found cities of their own to which they granted privileges of very 
varying extent. But nowhere in England do we hear of violent uprisings 
of the citizenry against the king or other city lords, nor of usurpations 
by means of which a royal or seigneurial castle might have been broken 
or, as in Italy, the lord might have been forced to transfer it out of the 
city. Nor do we hear of a burgher militia created to fight the city lord, 
to obtain by violent means the right to an autonomous jurisdiction with 
elected officials instead of the judges appointed by the king, and to 
defend the application of a special urban law. To be sure, royal grants 
created in England, too, special urban courts which had the privilege 
to grant the burghers a rational trial procedure without duels and which 
had enough autonomy to be able to reject certain innovations of the 
royal trial procedure, in particular the trial by jury. But the creation 
of the law itself remained firmly in the hands of the king and the royal 
courts. The king granted the special courts to the cities in order to re- 
tain them on his side against the feudal nobility, so that to this extent 
they, too, profited from the typical conflicts of the feudal period. 

Much more important than these court privileges, however, was the 
autonomy in fiscal administration which the cities managed to obtain 
over time. This fact in itself confirms the superior position of the crown. 
From the point of view of the kings up to the time of the Tudors, the 
city was primarily an object of taxation. The privileges of the burghers, 
the gratia emendi et vendendi [the rights to buy and sell] and the trade 
monopolies, had their counterpart in tax burdens also specific to urban 
citizens. Tax collection, however, was fanned out, and the most im- 
portant applicants for these tax farms, next to the rich burghers, were 
the wealthier royal officials. The burghers increasingly succeeded in 
excluding their competitors and in obtaining from the king, for a lump ' 
sum, the right to collect their own taxes (the firma burgi'); 21 by means 
of special payments and gifts they also secured additional privileges, 
the most important being die right to elect the sheriff. 

Despite the presence of groups with pronounced seigneurial inter- 
ests in the urban citizenry, purely economic and financial interests were 
ultimately decisive for the constitution of the English city. The coniur- 
atio of the Continent is to be found in English cities, too, but here 
it typically took the form of a [single] monopolistic city guild. This is 
not true everywhere — in London, for instance, it did not arise. But in 
numerous other cities the guild, as the guarantor of the urban fiscal 



I27§ THE CITY- ( NON-LEGITIMATE DOMINATION) { Ck. XVI 

obligations, became the decisive union of the city. Like the Richerzeche 
in Cologne, it often bestowed the citizenship rights. In manorial cities 
it was usually the city guild which secured an autonomous court, but 
its jurisdiction was exercised over the townsmen as guild members 
rather than as burghers. Nearly everywhere the city guild was in fact, 
although not in law, the governing association of the city. For in law 
it was still true that burghers were all those who shared the "bourgeois" 
burdens owing to the king Cguard and military duties, court service, 
tax payments) with the other townsmen. Hence not only residents were 
burghers, but as a rule also all the neighboring landowners, the "gen- 
try." In particular, the London commune included in the twelfth cen- 
tury among its members nearly all the great noble bishops and officials 
of the country, because they all owned town houses in the city, the seat 
of the king and of the administrative agencies — a phenomenon which 
has its parallels in republican Rome, but is much more interesting bV 
cause of the characteristic deviations from the Roman conditions. A»y 
individual who was unable to share in the burden of the collective 
tax guarantee and paid the royal taxes only from assessment to awesc- 
ment — thus primarly anyone not wealthy — was eo ifto excluded from 
the stratum of active burghers. 

All privileges of the city rested on royal and seigneurial grants which, 
however, were interpreted rather freely. Of course this was true in Italy 
too. In one respect, however, city development in England took an 
entirely different course from that of Italy: The cities became, within 
the system of Estates, privileged corporations whose organs po§ses^«d 
definite individual rights derived from the acquisition of special legal 
titles; they held these in the same way as individual barons or trading 
corporations held their specific rights obtained by individual grant. Thw 
development came once the concept of the corforation was finally ad- 
mitted into English law. The transition was fluid from the privileged 
"company"" to a city guild and from there to the incorporated city. The 
special legal status of the English burghers thus was composed of a 
bundle of privileges obtained within the partly feudal, partly patrimonial 
overall association of the kingdom; it did not derive from membership 
in an autonomous association which had organized its own syrtem *f 
political domination. 

Let us recapitulate the development in its rough oudines. Initially 
the English cities were compulsory associations burdened by th« king* 
with liturgical obligations — only with different ones than the villages. 
Later on, in the period of massive new city foundations equipped by 
the king or manorial lords with economic or legal privileges, a bask: 
equality of rights for all burghers with urban landnoldingt and a certain 



Hi ] - The Medieval and Ancient Patrician City i 27 9 

limited autonomy of the cities was established. The initially private 
guilds came to be accepted as the guarantors of the cities' fiscal obliga- 
tions and were acknowledged in royal charters. Ultimately the towns 
would be endowed with the rights of a corporation. 

London developed into a "commune" in the Continental sense. 
Henry I [110c— 1135] had granted the residents the right to elect the 
sheriff, and from the end of the twelfth century we find the commune 
at an association of the burghers, recognized by King John [Lackland, 
1199-1216], with a mayor who, like the sheriff, was elected, and with 
aldermen 23 who, from the late thirteenth century, joined together with 
an equal number of elected councillors to form a city council. The farm- 
ing by the commune of the Middlesex sheriff's office initiated its domi- 
nation over the surrounding districts. By the fourteenth century the 
mayor of London bore the tide "lord." 

The majority of the remaining cities, however, remained — or better, 
became after temporary but abortive attempts to form political com- 
munes — simple compulsory associations with certain special privileges 
and firmly regulated rights of corporate autonomy. The development 
of the "craft" constitution (Zunftverfassung) will have to be discussed 
later, 24 but it may be pointed out already here that it did not alter the 
basic character of the cities. It was the king who meddled the dispute 
over predominance between the "crafts" and the honoratiores. The cities 
continued to be under obligation to grant the crown's tax demands until 
the strengthening of the Estates permitted the creation, in Parliament, 
of 2 collective protection against discretionary taxation which no indi- 
vidual city, nor even all the cities together in joint action, had been 
able to obtain by virtue of independent power. The rights of active 
citizenship, however, remained hereditary rights of corporation members 
which it was possible to acquire through purchase of membership in 
certain associations. The difference between the English and the Con- 
tinental development, although to some extent only a difference of 
degree, is nevertheless of basic significance: because of the particular 
form which the English law of corporations assumed, the notion of the 
commune as a territorial institution did never arise in England. 

The reason for this contrast is to be sought in the power of the 
royal administration, always unbroken and extended even further after 
the accession of the Tudors, which constituted the basis for the political 
unity of the country and for the unity of its law. It is true that the 
royal administration was always stricdy supervised by the Estates, and 
that it had to rely on the collaboration of the honoratiores. But this very 
fact had the consequence that the economic and political interests [of 
the notables] were oriented not to the individual closed urban com- 



1 2 8 O THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

mune, but rather to the central administration whence they expected 
economic opportunities and social advantages, guaranteed monopolies 
and aid against violators of their own privileges. The crown, which was 
financially and administratively utterly dependent upon the privileged 
strata, feared these groups. But the political strategy of the English 
kings was essentially one of rule through the central parliament. In the 
main they tried to influence the urhan constitutions and the composi- 
tion of the city councils only in the interest of their parliamentary elec- 
tion politics; hence they supported the oligarchy of notables. The urban 
notables, for their part, could find a guarantee for their monopoly posi- 
tion vis-a-vis the non-privileged strata in the central administration, and _ 
only there. 

In the absence of a bureaucratic apparatus of their own, and in fact 
precisely because of the centralization of administration, the kings were 
dependent on the cooperation of the notables. The power o£ the burghers 
in England was based not on their own military might, but mainly on 
the "negative" foundation that the feudal administration, in spite of its 
relatively advanced technical development, was unable to maintain a 
truly permanent domination over the country without the constant 
support of the economically powerful honoratiores. For the military 
power of the large majority of English cities was comparatively unim- 
portant in the Middle Ages. The financial power of the townsmen, 
however, was considerable. But it was exerted collectively — within the 
status union of the commoners represented in Parliament — as the power 
of an estate of privileged urban interests. It was around this grouping 
that all interests transcending the utilization of purely local monopolies 
revolved. Here we thus find for the first time an interlocal, national 
bourgeoisie. The increasing power of the burghers in Parliament and 
within the royal administration, which was conducted through the 
justices of the peace — their power, that is, in the national polity of 
notables — prevented the development of a strong movement for political 
independence in the individual communes. Not the local interests of 
municipalities as such, but the interlocal interests of the townsmen, 
formed the basis for the political unification of the bourgeoisie. The 
same development also favoured the bourgeois and mercantile character 
of the English city oligarchy. The development of the English cities 
thus was similar to that in Germany until about the thirteenth century. 
But thereafter it increasingly turned into a domination of the "gentry," 
which was never again broken; this contrasts with the at least relative 
democracy developing in Continental cities. The offices, above all that 
of the alderman, which originally had been based on annual elections, 
came increasingly to be occupied for life and frequently came to be 



Hi ] The Medieval and Ancient Patrician City i 2 8 i 

filled either by cooptation or as patronage of neighboring manorial lords. 
For reasons already indicated the royal administration supported this 
development, just as the ancient Roman administration had supported 
the oligarchy of the landed nobility in the dependent cities. 



5. Rule of the Council-Patriciate and of the Crafts 
in Northern Europe 

The conditions of development in the Continental cities of northern 
Europe differed from those of either England or Italy. In some cases 
the rise of the patriciate in this area was based on status and economic 
differences already present at the time of creation of the burgher as- 
sociation. This was true even for newly founded cities: The 24 coniilra- 
tores fori in Freiburg, from the very beginning, were privileged in tax 
matters and appointed as consuhs of the new city. However, in the 
majority of newly founded cities — and even in many Northern maritime 
cities which by their very nature tended toward a merchant plutocracy 
— the formal closure of the group of famines qualified for a seat on the 
council came about only gradually. Typically the frequently existing 
formal right of the officiating council to propose its successors, or the 
mere habit of following its advice, or perhaps simply the social weight 
of the circles in question together with the objective need to keep ex- 
perienced men in the council, ultimately led to the de facto practice 
of replenishing the council through cooptation, and thus of surrender- 
ing the executive boards of the city to a closed circle of privileged families. 
It will be remembered how easily a similar development can occur even 
under modern conditions: in Hamburg, for instance, the complementa- 
tion of the Senate has recently sometimes tended in the same direction, 
in spite of the right of the House of Burgesses to elect the senators. We 
cannot pursue the details here; at any rate, such tendencies have as- 
serted themselves everywhere, the only variation consisting in the extent 
to which they have found formal legal expression- 

The patrician families monopolizing the council seats could every- 
where maintain this closure easily only as long as no strong contrast 
of interests arose between them and the excluded part of the citizenry. 
But once such conflicts emerged, or once the self-esteem of the outs, 
based on growing wealth and education, and their economic dispensa-. 
bility for administrative work had risen to a point where they could no 
longer tolerate the idea of being excluded from powef, the makings of 
new revolutions were at hand. Their agents were once again sworn 



1282 ihb crnr (non-lbcitimatb domination) [ Ch. XVI 

burgher unions, but behind these new unions stood — at time directly 
identical with them — the craft guilds (Ztmfte). In connection with 
this period one has to be careful not to identify the term Zurtft pri- 
marily or even exclusively with the artisan guilds of the handicraft 
workers. The movement against the patrician families was in its first 
period by no means a movement primarily of the artisans. Only in the 
further course of events, which we shall have to discuss later [sec. iv 
below], did the artisans assume an autonomous role. In the first period 
they were almost always led by the non-artisan "crafts." The variable 
success of the "craft" revolutions could in extreme cases lead, as we 
shall see, to a composition of the council exclusively of representatives 
of the craft guilds and to the tying of full citizenship to membership' 
in one of the "crafts." 

Only this rise of the "crafts" signified the real seizure of power, or 
at least general participation in the rule, of the "bourgeois" classes in 
the economic sense of the term. Wherever "craft"-rule QZunftherrschafO 
was installed at all effectively, this coincided with the peak of the city's 
external power and its greatest internal political independence. 

The similarity of these "democratic" developments with the fate of 
the ancient city is very striking. Most cities of Antiquity experienced a 
similar early period of growth as "cities of the nobility," beginning 
roughly with the seventh century B.C., and a later rapid spurt to politi- 
cal and economic power which was accompanied by the development of 
Democracy or at least a trend in this direction. These similarities exist 
even though the ancient pol^s arose from a very different historical 
background. We shall first have to compare the ancient patrician .city 
with the medieval one. 



6 . Family-Charismatic Kingdoms in Antiquity 

The Mycenaean culture of the Greek mainland, at least in Tiryrss 
and Mycenae itself, must have been based on a patrimonial kingship of 
Oriental character, though of far smaller dimensions, supported by 
forced labor." Its buildings, unequalled before the classical period, are 
inconceivable without forced labor of the subjects. On the frontiers of 
the Hellenic cultural area of that day towards the Orient, on Cyprus, 
there even seems to have existed a state which — quite in the Egyptian 
manner — employed a script for purposes of billing and list-keeping: a 
bureaucratic patrimonial storehouse administration. By contrast, even 
in Athens of the classical period administration was still conducted al- 
most completely verbally and without the use of writing. This script, 



"' ] ~ The Medieval and Ancien> Patrician City i 2 8 3 

and in fact the entire culture, later disappeared without leaving a trace. 
The "catalogue of ships" of the lliaJ lists hereditary kings who rule 
over large territories, each of which contains several and in some cases 
numerous localities which later were known as cities, but which then 
probably were mere castles; 28 a great ruler like Agamemnon was pre- 
pared to give several of these in fief to. Achilles. In Troy we find the 
old men from noble bouses, exempt from military service because of 
their age, acting as advisors to the king. Hector is considered the Tro- 
jan war-king, while Priam himself has to be fetched for the conclusion 
of treaties. Only one written document is mentioned, and this may 
actually have been in symbols [rather than in regular script]. 27 But all 
other relationships described in the epics rule out the existence of a 
regular administration based on forced labor and a patrimonial king- 
ship. Homeric kingship rests on family charisma. However, the epic 
can ascribe also to Aeneas, a foreigner to the city, the hope of obtain- 
ing King Priam's office if he were to kill Achilles, for kingship is con- 
ceived as an office-like "dignity" rather than as a possession. The king 
is leader of the army and participates with the nobles in the court ses- 
sions; he represents the group before the gods and to outsiders, and is 
furnished with a special royal domain. But his power, especially in -the 
Odyssey, is essentially that of a chieftain, based on personal influence 
rather than on regulated authority. The military (normally maritime) 
expeditions, too, have for the noble families more of the character of 
the knightly aventiure of a leader with his companions than that of a 
military levy; the companions of Odysseus are called hetairoi, just like 
the later followership of the Macedonian kings. The long-term absence 
of the king is not considered a source of serious trouble. While Odys- 
seus is away, there is no king at all in Ithaca; he entrusts his house to 
Mentor, who has no share in the royal "dignity." The army is an army 
of knights; individual combat decides the battle, and the ordinary foot 
soldier plays a very minor role. 

In some parts of the Homeric poems an urban political "market" 
[the agora] is mentioned. If Ismaros is called a polls, this could mean 
"castle," but in any case- it is not the casde of an individual, but that of 
the Ciconians. 28 In the description of the scenes on the shield of Achil- 
les, the elders of the wealthy and militarily powerful sibs are shown sit- 
ting in the market [agora] holding court; the people, as in the Germanic 
folkthing, stand in a circle and accompany die speeches of the parties 
with applause." Teiemachos' complaint is discussed in the market by 
the military notables under the direction of the herald. 

The nobles, including the kings, are landed lords and ship owners 
who move into batde on chariots. But only those resident in the city 



1284 THE CITY (NON-LEGITIMATB DOMINATION) [ Ck. XVI 

have a share in the power. The fact that King Laertes lives on his 
country estate signifies that he h in retirement. The sons of the noble 
sibs, as among the Germanic tribes, join as followers (hetatTot) in the 
aventiure of a hero — in the Odyssey, that of the king's son. Among the 
Phaeacians the nobility asserts the right to collect from the people part 
of the cost of hospitality gifts. 30 It is nowhere stated in the Homeric 
epics that all rural inhabitants are regarded as dependent peasants or 
servants of the urban nobility, but free peasants are not mentioned 
either. The treatment of the figure of Thersites, at any rate, indicates 
that even the common conscript, who does not go into batde in a 
chariot, occasionally dares to speak up against the lords — but then this 
is also taken as rank insolence.* 1 Yet, even the king performs domestic 
chores, constructs his own bed, and ditches his garden. His war com- 
panions row their boat themselves. The purchased slaves, on the other 
hand, may hope to obtain a kleros [land lot] of their own; 52 the differ- 
ence between the purchased slave and the "client" endowed with a lot 
of land, which was to be so pronounced later on in Rome, does not yet 
exist. Relations are patriarchal; the household economy satisfies all nor- 
mal uses. The Greeks used their own ships for piracy; their participa- 
tion in trade was merely passive, while the active side was still con- 
ducted by the Phoenicians. 

In addition to the "market" and the town-living habits of the no- 
bility, two other phenomena are 'of great importance. One is the insti- 
tution of the agon [contest], which later was to dominate the entire 
conduct of life. It arose naturally from the knighdy concept of honor 
and the military training of the youths on the exercise grounds. In or- 
ganized form it appears above all in the funeral cult of war heroes 
(Patroklos). 1 * Even in the Homeric period it already dominates the 
style of life of the nobility. The other important phenomenon is the 
completely unrestrained relationship — in spite of a certain fearful re- 
spect (deisiclaiwionia) — to the gods, whose treatment in the epids was 
later to be so painful to Plato [e.g., Republic, bk. II, 376E-385B]. This 
lack of religious respect of the heroic society could arise only in the wake 
of migrations, especially of overseas migrations, and thus in areas in 
which the people did not have to live with old temples and close to 
the ancestral graves. 

While the noble cavalry of the historic patrician polis is absent from 
the Homeric poems, it is striking that the hoplite batde order, which 
arose only much later with the disciplined organization of foot soldiers 
in rank and file, does indeed seem to be mentioned: evidence that 
widely different periods left their traces in the epics . 

The historical period prior to the development of the tyrannis knows 



Hi ] - The Medieval and Ancient Patrician City 1285 

family-charismatic kingship, apart from Sparta and a few other examples 
(Cyrene), only in institutional survivals or from traditions such as we 
have for many cities of Hellas, Etruria, Latium, and for Rome. It was 
always a kingship over an individual polis, family-charismatic, equipped 
with religious authority, but normally (excepting Sparta and the Ro- 
man tradition) furnished only with some honorific privileges over the 
nobility who, 'in fafct, were sometimes also described as "Icings." The 
example of Cyrene shows that there, too, the king owed the source of 
his power, his treasure, to the middle-man trade, whether he traded 
himself for his own account or exacted fees for the controls he imposed 
and the protection he granted. 3 * It was probably the rise of knighdy 
warfare, with the attendant military independence of noble families who 
maintained their own chariots and followings and who themselves 
owned ships, that shattered the monopoly of the kings. This would be 
especially true for the period after the collapse of the great Oriental 
empires, the Egyptian as well as the Hittite [about 1200 b.c], with 
which the Mycenaean kingdoms had been in contact, while other great 
monarchies such as the Lydian had as yet not developed; that is, after 
the breakdown of the trade monopolies and the forced-labor state of the 
Oriental kings which the Mycenaean culture reflected en miniature. It 
was probably also this collapse of the economic foundations of royal 
power which made possible the so-called Doric migrations [ca. 1100- 
900 b.c]. This time saw the beginning of the migrations of the sea- 
faring knighthood to the coasts of Asia Minor, where Homer does not 
yet report any Hellenic setdements and where at the time no strong 
political associations existed. The entry of the Hellenes into active par- 
ticipation in trade began at the same time. 



y. The Ancient Patrician City as a Coastal 
Settlement of Warriors 

At the begamrng of known history we find the typical patrician city 
of Antiquity.** It was always a coastal city. Up to the time of Alexander 
and the Sainrate wars in Italy [late fourth century b.c] no polis was 
further ranoved from the sea than a day's journey. Outside the area 
of the polis we find only villages («**«») with unstable political as- 
sociations of "tribes" (V#w?). A polis which was dissolved on its own 
initiative or by the enemy would be "dioikized" into villages. A real 
or fictitious act of synoikismos, on the other hand, was considered the 
origin of the city-, the "setding together" of the sibs into or around a 
fortified castle on command of the king or by free agreement. Such 



12 8 6 THE CITY (nON-LEGITIMATJH DOMINATION) [ Ck. XVI 

acts were also in the Middle Ages nor entirely unknown: thus we have 
the synoiki<,mOi or Aquila described by Csothein, and one at the foun- 
dation of Alessandria. as But the fundamental nature of such acts was 
much more clearly defined in Antiquity than in the Middle Ages. The 
actual permanent living together was not a fundamental aspect: like 
the medieval noble families, those of Antiquity in part continued to 
reside in their country castles (as for example in Elis), or they at least 
owned country houses in addition to their urban seats. Decelea, for 
instance, was the castle of a noble clan, and many Attic villages as well 
as some of the Roman tribus were named after such castles. The ter- 
ritory of Teos was divided into "towers,"" For all that, the center of 
gravity of the nobility's power lay in the city. The political and eco- 
nomic masters of the countryside, the manor lords, financiers of trade 
and creditors of the peasantry, all were astoi — i.e., "town-dwelling" 
noble families, 38 and the actual transplantation of the rurai nobility into 
the cities continued apace. By the classical period the rural castles had 
been broken. The burial grounds (nekropoteis^) of the noble clans had 
always been in the cities. 

The truly fundamental element in the formation of a polls, how- 
ever, was always thought to be the fraternization of the sibs into a cult 
community: the replacement of the prytaneia of individual families by 
a common ■prytaneion of the city in which the prytans took their com- 
munal meals. In Antiquity this formation of a "fraternity" did not only 
mean, as in the Middle Ages, that the coniurauo of the burghers, in be- 
coming a comune, also adopts a saint for the city. The confraternity cf 
Antiquity signified much more: the very foundation of a new local com- 
mensal and cultic community, for there was no common church, as in 
the Middle Ages, of which everyone was already a member before the 
formation of the city fraternity. To be sure, Antiquity had always known 
interlocal cults in addition to those of local deities. But the form of re- 
ligious activity most central for everyday life was the cult of the individ- 
ual clan, which in the Middle Ages did not exist, and this was always 
firmly closed to outsiders and thus an impediment to fraternization. 
Such family cults were almost as severely restricted to the members as 
were the cults of India, and only the absence of magical taboo-barriers 
made the confratemization possible. Even then the principle remained 
that the spirits revered by the clan would accept sacrifices only from 
clan members; the same held for all other associations. 

Among the associations which entered into a fraternal relationship 

. in the cultic city-association we find, significant already at a very early 

stage and surviving into very late periods, the phylae and phratries in 

which everyone had to be a member to be considered a citizen. About 



Hi } The Medieval and Ancient Patrician City 1287 

the phra tries "we can with certitude say that they reach back into a 
time antedating the polis. Later they were primarily cult associations, 
but also exercised some other functions; in Athens, for example, they 
passed judgment on the military capability of the young and the related 
capacity for inheritance. Hence they must originally have been military 
associations, corresponding to the "men's house" which we have already 
discussed [ch. IX:2 and elsewhere]; the very term was preserved in the 
Doric warrior states (andreiow) and also in Rome {curia derives from 
coviria') as the designation for the subdivisions of the military associa- 
tion which had confraternized to Form the polis. The meal communities 
(syssitia) of the Spartan full citizens, the severance of men in the mili- 
tary age group from their families for the length of their full service lia- 
bility, and the communal training of the boys in military asceticism 
— all these were elements of the general type of education associated 
with the primeval warrior associations of the tribal youths. But outside 
some Doric associations, this radical militaristic semi-communism of the 
warrior associations was nowhere developed in historical times, and even 
in Sparta itself it unfolded in its full harshness only during the military 
expansion of the Spartan demos, after the destruction of the nobility, for 
the sake of maintaining discipline and safeguarding the status equality 
of all warriors. In the normal phratries of other cities, by contrast, the 
noble families or houses (ytVij, w-mC) alone supplied the ruling notibles, 
as the inscriptions of the Demotionidai show for the old clan which had 
its castle in Decelea. 3 * In the Draconian code of Athens [621 b.c], for 
instance, this is still reflected in that the "ten best men" of the phratry 
— that is, the most powerful ones because of their wealth — are to decide 
on reconciliation or blood revenge [in the case of manslaughter].' 

In the urban constitution of later periods the phratries were treated 
as subdivisions of the phylae (and in Rome: of the three old personal 
tribui) into which the' ordinary Hellenic city was divided. The term 
pkyle (tribe) is technically associated with the polis; the word for a 
nori-urban "tribe" is 2#>w, not yuA.17. In the historical period the phylae 
had everywhere become artificial subdivisions of the polis, created for 
the purpose of assigning regular turns in. the bearing of public burdens, 
in the sequence of balloting, and in the occupancy of offices, as well as 
for the organization of the army, and for the distribution of the yields 
of state enterprise, of booty and of conquered territories (thus in the 
allocation of land [after the prehistoric Doric conquest] on Rhodes).* 1 
At the same time, of course, they were also cult associations, as all — even 
the rationally formed — associations of early periods have always been. 
Artificial creations were also the typical thjsee phylae of the Dorians, as 
is already indicated by the very name of "me third: Pamphylae [i.e., "all 



288 THH CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 



■-1 



tribes"], which finds a counterpart in the Roman tradition about the 
tribus of the Luceres." The origin of the phylae may frequently have 
been a compromise between a resident stratum of warriors and a newly 
entering conquering group; this may also explain the two Spartan royal 
families with unequal rank, which again had a counterpart in the 
Roman tradition of an original dual kingship. In the historical period 
the phylae were in all cases purely personal, rather than territorial, 
associations, headed by a "king of the phyle" ifhylobasHevs) who 
initially was an hereditary family-charismatic chief and later an elected 
official. 

Members of the phylae and phratries, tribus and curiae v/eie t as 
"active" or "passive" citizens, all participants in the army of the pohs, 
but only the members of the noble clans were "active" citizens — i.e., 
only they shared in the offices of the city. Hence the term denoting a 
"citizen" is at times directly identical with the word for a member of 
the patrician "families." The attribution of a family to the nobility was 
here, as elsewhere, without doubt originally tied to the family-charismatic 
dignity of the district chieftaincy; with the advent of chariot warfare 
and castle construction, however, it seems to have become a function 
of castle ownership. During the period of polis monarchy, the formation 
of new nobility must have come about as easily as did in the early 
Middle Ages, the rise into the circle of fief holders of any family adher- 
ing to a knightly style of life. But in historical times only a member of 
the patriciate C-patricius, eupatruiesy could validly communicate, as 
priest or official, with the gods of the polis through conducting the 
sacrifices or consulting the oracles (awspicia). As a rule the individual 
patrician families also had their own gods, different from those of the 
polis, and their own cults at their ancestral seats — signs of their pre- 
urban origin. On the other hand, an office priesthood existed beside 
the family-charismatic priesthood reserved to certain patrician families, 
but there was never a general priesdy monopoly of communication with 
the gods, such as prevailed almost everywhere in Asia, for the urban 
magistrates had the power to perform such functions. Nor was them a 
priesthood that was independent from the polis, apart from the few large 
interlocal sanctuaries such as Delphi; priests, were appointed by the 
city, and even the Delphic shrines were not rujpd by an autonomous 
hierocracy. Initially they were under the authority of a neighboring 
polis, and after the destruction of the latter in the course of a holy 
war, several adjacent communes formed an amphictyony which exerted 
a very close control. The political and economic power of great tempjej 
— as manorial lords, owners of ergasteria, money fenders to private 
persons and, above all, to states (whose war hoards they held in de- 
posit), and as deposit banks in general — did not change The fact that 



Hi ] The Medieval and Ancient Patrician City , 1289 

both on the Greek mainland, and even more so in the overseas colonial 
settlements, the polis retained and indeed increasingly expanded its 
power over the wealth of the gods and the priestly benefices. The final 
result in Hellas was the filling of priestly offices by way of public auc- 
tions. It seems that the rule of the military nobility was decisive for this 
development which was completed during the rule of the demos. The 
sanctuaries, the sacred law, and magic norms of all kinds at that time be- 
came instruments of power in the hands of the nobility. 

The nobility of a polis was not unconditionally closed; the acceptance 
of individual outside lords who had moved from their casdes into the 
city together with their clients (as in the case of the gens Claudia), and 
mass "promotions" like that of the gentes minores in Rome," occurred 
in Antiquity just as later in Venice, although this was probably more 
frequent in the very early pericd than later. Nor was the nobility a 
purely local, territorially limited community. Attic noblemen, such as 
Miltiades, held large seigneuries outside of the city territory, and every- 
where, just as in the Middle Ages, interlocal connections were especially 
prevalent among the noble strata. 

In its economic nature, the property of the nobility was predomi- 
nantly seigneurial. The prestations of slaves, serfs, and clients — cate- 
gories which will be discussed later — supplied the domestic needs. Even 
after the disappearance of the old type of bondage and of clientage, 
most wealth remained landed and agricultural. For this we can find a 
parallel in the Babylonian patriciate; at the division of the assets of the 
Babylonian trading house which for generations appears most frequently 
in the documents, that of the Egibi, urban and rural landed property, . 
slaves, and cattle appear as the main holdings." The source of this 
economic power of the typical urban nobility, however, was in Hellas 
as in Babylon and in the Middle Ages the direct and indirect participa- 
tion in trade and shipping. This was accepted as in accord with patrician 
status up into a late period, and only in Rome did it come to be entirely 
forbidden for senators. In the ancient world, as in the Orient and in the 
European Middle Ages, urban residence was sought precisely for the 
sake of these profit opportunities. The wealth accumulated in this way 
was used to practice usury against the peasants who, as inhabitants of 
the countryside, were excluded from political power. Massive debt servi- 
tude was the result, and the best rent-producing land (in Attica: the x 
v&ia, the lands in the plain) accumulated in the hands of the astoi, 
while the hill-sides (the seats of the Diacrii), which could not produce 
a rent, were everywhere held by the peasantry." The seigneurial power 
of the urban patriciate thus originated to a large extent in urban profits. 
The endebted peasants either continued as sharecroppers or were pressed 
direcdy into cor:ee lab r to work beside the tme serfs of the old type 



1290 THE CITY (NON-tBCITIMATE DOMINATION) [ Ck. XVI 

which had its origin in seigneurial relations. Purchased slaves began 
to assume some importance. Nowhere, however, not even in patrician 
Rome, did the free peasantry entirely disappear; this is as true of 
Antiquity — and perhaps even more so — as it is of the Middle Ages. The 
tradition about the struggles in Rome between patriciate and flebs 
clearly indicates that these conflicts were not caused by problems of a 
manorial social structure; but by incompatibilities of a quite different 
— and indeed opposite — kind. 

Anyone not belonging to the urban, clan-associated, and militarily 
trained warriorship — and that means above all any free rural resident: 
agroikos, perioikos, plebetus — was economically at the mercy of the urban 
nobles. This was due to a number of factors: The exclusion from all 
political power, which also meant the exclusion from active participation 
in all judiciary activity at a time when the determination of law had not 
yet assumed a form strictly bound by firm rules; the necessity — which 
follows from the above — to give gifts or to enter into a client relation- 
ship with an urban nobleman in order to obtain a court finding in one's 
favor; and finally,' again not unconnected, the severity of the law of 
debtorship. The spatial mobility of the peasantry, however, and the possi- 
bility of buying land in a new locality, apparently was relatively large 
during the patrician period, as is shown by the case of Hesiod's Family. 10 
This was in sharp contrast to later periods, to the "hoplite city," and 
even more so to radical Democracy. The free urban artisans and the 
non-patrician small merchants, by contrast, probably were in a position 
similar to that of the Muntmannen of the Middle Ages.* 7 In early Rpme 
the lung seems to have had a certain tutelary power over this group, 
similar to the' relationship between patron arid client, just as did trie 
city lord of the early Middle Ages. Occasionally we find traces of liturgi- 
cal organizations of artisans: the Roman ceniimae of military artisans, 
for instance, may have had this origin.* 8 We do not know whether the 
artisans had ever been organized into guest-tribes, as was the rule in 
Asia and also in pre-£xile Israel; at any rate, there is no trace of a 
ritualistic segregation in the manner of the Indian castes. 



8. Ancient and Medieval Patrician Cities: 
Contrasts and Similarities 

The stereotyped number of phylae, phratries, or sibs in the organiza- 
tion of die ancient patrician city constitutes one obvious contrast to the 
patrician city of the Middle Ages. Their origin in military and religious 
units is reflected in this fact. The ancient city arose as a community of 



Hi ] The Medieval and Ancient Patrician City i 2 9 i 

warriors settling together, and this explains these divisions, just as the 
"hundreds" of the Germanic tribes can be explained from setdement 
in military groupings. It is this origin of the ancient city, as we shall 
see further on [cf. sec. v:6 below], which causes the structural differences 
between the patrician period here and in the Middle Ages. Other 
causes are, of course, to be found in the different environments. The 
medieval city arose in the context of large continental patrimonial realms 
and in opposition to their political authorities, the city of Antiquity on 
the sea coast and in the neighborhood of peasant and barbarian peo- 
ples; the latter had its origin in city monarchies, the former in the con- 
flict with feudal or episcopal city lords. 

.. In spite of these differences, whenever political conditions were 
similar this also found expression in similarities of the formal features of 
city development. We saw how the position of the city monarch in 
Venice, which for a time had been truly dynastic and patrimonial, was 
formally changed through the prohibition of appointing a coregent and 
ultimately through' the transformation of the doge into a president of 
the corporation of the nobility, and thus into an office-holder. The 
corresponding development in Antiquity was that from the city king- 
ship to the magistracy with a one-year tenure. In Antiquity, too, the 
appointment of coregents had considerable significance in the early 
period, which Mommsen in particular has emphasized.'" This can be 
deduced from such phenomena as: The role of the Roman interrex;™ 
the residues of an earlier practice of the appointment of successors and 
colleagues by the incumbent (appointment of the dictator by the consul; 
admission to Candida teship and conduct of the election of a new official 
by the old — this was considered a precondition for a valid installment); 
the original restriction of the Roman community in elections to mere 
acclamation, and then to a choice between only those candidates pro- 
posed or (later) admitted by the magistrates. In Greece, however, the 
development from city monarchy to an annual magistracy under the 
' control of the nobility differs in formal respects much more strongly 
from the Venetian model than does the course of events in Rome. 
Furthermore, the development of medieval European city constitutions 
outside Venice also shows important differences from the Venetian 
type. 

The fully developed rule of the nobility everywhere replaced the 
Homeric council of the elders no longer fit for military service by a 
council of the noble families. This could be a council of the family 
heads, such as the patrician Senate of early Rome, the Spartan council 
of the ytp&xpt — i.e., of those to whom honorific gifts (of their clients) 
were due, and the old Attic council of prytans elected by the clans 



I Z 9 2 THE CITY (nON-LEGITIMATB DOMINATION) f Ck. XVI 

organized in naucraries." The Middle Ages knew this stage also, but 
not in quite so consistent a schernatization, which in Antiquity was due 
to the religious significance of the sibs. Or else it might be a council 
of former officials, like the later Attic Areopagus and the Roman Senate 
of historical tiroes. 1 * For this latter type the Middle Ages have only 
modest parallels in the form of the admission of past burgomasters and 
councillors to the council sessions: the military and also religious charac- 
ter of the ancient magistracy furnished even the past incumbents with 
far more enduring significance than the offices of the medieval city 
could do. But in both periods it was always a limited number of noble 
families in mutual rivalry — at times, as during the rule of the Bacchiadae 
in Corinth,* 8 only a single one — which held the power and alternated 
in the offices. As in all systems cJ domination by notables, including that 
of the Middle Ages, the number of people who ever held office in the 
patrician pdis was very small. Wherever the rule of the nobility was at 
least de facto maintained, as in Home, this remained permanently so. 

Patrician rule also shows other similarities in the Middle Ages and 
in Antiquity. Feuds between the noble families, exile of the vanquished 
and their return by force of arms, wars between the knighthood of dif- 
ferent cities (in Antiquity, e.g., the 'Xelantine" war), 1 * all these can be 
equally found in both periods. In both periods, too, the countryside was 
outside the law. Whenever they could, the cities of Antiquity, like 
those of the Middle Ages, forced other cities into clientage: the Spartan 
cities of the ferioikoi,** later those ruled by harmosts, ss and the numerous 
communities subject to Athens and Rome find their parallel in the 
Venetian mainland realm (the terra fermd) and the towns subjugated 
by Florence, Genoa, and other cities, and administered by their officials. 



p. Economic Character of the Ancient and 
Medieval Patriciate 

Economically, the urban patrician families of Antiquity and the 
Middle Ages were above all characterized by the fact that they were 
rentiers. In both periods noble status was determined by a knightly style 
of life, and not by ancestry alone. The medieval patriciate included the 
families of former princely servitors (fttimsteriaJes) together with those 
of free vassals and knights (especially in Italy), as well as those of free 
land owners who, after coining into some wealth, had assumed the 
knighdy manner of living. In Germany and in Italy some of the pa- 
trician families retained thdr casdes outside of the city, where they 
withdrew during the struggle- with the craft guilds and from which 



in } The Medieval and Ancient Patrician City i z 9 3 

for long periods they conducted feuds with the cities which had expelled 
them. In Germany the best known example probably is the family of 
the Auers in Regensburg. 5 ' These knightly strata, joined together in the 
feudal associations, were the true magnati and nobili of the Italian 
terminology. The knighdy families which did not possess own casdes 
later found themselves obliged to remain in the city when the craft 
guilds seized power, to submit to the new government and to offer their 
military service against the magnates. The further development could 
proceed in two directions. Families not of knighdy descent could gain 
entrance into the nobility by purchasing a noble holding— often a 
casde — and transferring their residence outside the city; on the other 
hand, noble families living in the city could take the step from merely 
occasional participation with their capital in trade to regular commercial 
operations of their own, thus abandoning their character as rentiers. 
Both movements occurred, but on the whole, the first tendency pre* 
dominated since it signified an upward movement in the social hierarchy. 

When cities were newly founded by political or manorial lords in 
the Middle Ages, it often happened that not a single knighdy family was 
included among the settlers. Sometimes they were explicidy excluded, 
especially after the struggle of the craft guilds against the patriciate had 
begun This phenomenon is met the more frequently, the further 
we go East and North into the (economically speaking) "new" lands. 
In Sweden the foreign-bom German merchants participated in .the 
founding and the government of the new cities, as also in Novgorod 
and very frequendy in the East in general. In these areas the "patriciate" 
and the mercantile stratum were really identical, at least during the 
early period of these cities. The great significance of this phenomenon 
will be discussed later [sec. v:6 below]. In the old cities the situation 
was different. But everywhere we find the tendency towards develop- 
ment of a rentier stratum which constituted the real nobility and exer- 
cised leadership in the patrician clubs. In Antiquity, a truly mercantile 
patriciate is also found mainly in colonial territories — e.g., in cities like 
Epidamnos." 

Thus the economic character of the patriciate was quite fluid; only 
its center of gravitation can be determined, and this undoubtedly was 
rentiership. We should strongly stress once again that the urban residence 
of the patriciate had its economic cause in the urban economic oppor- 
tunities, and hence that ii>' every case the economic power of the urban 
nobiliiy derived from the exploitation of such sources of revenue. Neither 
the aucient eu-patrides or fatrictus nor the medieval patrician was a 
merchant, not tr- -sn in terms of the modern concept of an entrepreneur 
cond'_v i-ii.ig business from an office. To be sure, he often participated in 



1294 THE CITY (non-legitimate domination) [ Ch. XVI 

mercantile enterprise, but then in the capacity of a ship owner, or as a 
limited partner, provider of cotnmenda capital or of a "sea loan " The 
actual work; the voyage and the conduct of the trading operations, was 
left to others; the patrican himself participated only in the risks and the 
profits, although at times he might have taken a share also in the in- 
tellectual management of the enterprise. All important forms of busi- 
ness of early Antiquity and the early Middle Ages, especially the cotn- 
menda and the "sea loan," were tailored to the existence of such 
financiers who invested their wealth in concrete individual undertakings, 
with a separate settling of accounts for each one, and usually in a 
great number of these to distribute the risk. This is not to deny, of ' 
course, that all imaginable transitions can be found between a patrician 
way of life and the personal conduct of business. The travelling trader 
who obtained money on commenda for individual ventures could trans- 
form himself into the owner of a great house operating with permanently 
invested limited-liability capital and employing foreign representatives 
to do the actual trading work. Money changing and banking operations, 
but also a shipping or wholesale f.rm, could easily be conducted for the 
account of a patrician who himself lived like a knight, and the transi- 
tion from a capital owner who utilized momentarily unused portions 
of his wealth by letting them out on commenda to one who was con- 
tinuously active as an entrepreneur was by nature quite fluid. 

This fluidity is certainly a very important and characteristic aspect 
of urban development. But it is itself only the product of other develop- 
ments. This blurring of the lines frequently came about only in the - 
period of the craft guilds' rule, when even the nobility was forced to 
enroll in the guilds if it wanted to participate in the city government 
and when, or; the other hand, the burgher remained a guild member 
even if he was no longer an active entrepreneur. The name scioperati 
["idlers"] for the great merchant guilds in Italy proves this point. This 
development was especially typical for the large English cities, in par- 
ticular ic~ London. There the struggle for power of the economically 
active groups of burghers organized in the craft guilds found expression 
in a dispute over the basic election constituency: whether the council 
and the officials should be elected by the wards of the city or their repre- 
sentatives where the power of the land-owning urban nobility usually 
was strong, or by the craft guilds ("liveries"). The increasing power of 
the craft guilds is shown by the growing dependency of all urban 
citizenship rights on membership in one of the occupational associations. 
Edward II had early established this principle for London, and al- 
though the election of the "Common Council" according to city wards 
(which had been the general procedure until 1351) was later reimposed 
several times (1384) by force, it was permanently abandoned in fnvor 



iii ] - The Medieval and Ancient Patrician City i 2 9 5 

of election by the "crafts'* in 1463."* While guild membership became 
compulsory for every burgher — even King Edward III enrolled in the 
Company of Linen Armourers C m crchant tailors) — the importance of 
the really active merchants and tradesmen within the "crafts" continued 
to decline in favor of that of the rentiers. Although membership in the 
craft guilds was theoretically obtainable only through apprenticeship 
and admission, it came in practice to be acquired through inheritance 
and purchase, and the connection of the "crafts" with their nominal 
occupation shrank for all but a few C a s, e.g., that of the goldsmiths) to 
vestigial remnants. In part the "crafts" were rent by economic and social 
contrasts among their members, and in part they became gentlemen asso- 
ciations for the sole purpose of electing the communal officials. 

In reality, as we saw, the "types" always become fluid vis-a-vis each 
other. But this is true of all sociological phenomena and should not 
prevent the statement of the typical aspects. The typical patrician, at 
any rate, was not a professional entrepreneur in either Antiquity or the 
Middle Ages, but rather a rentier and "occasional" entrepreneur. The 
expression "honorable idlers" (ehrsame. Mussigganger~) is found in the 
statutes of Upper Rhine cities as the official designation for members 
of the patrician chamber, in contrast to those of the craft guilds. In 
Florence, the great merchants of the Arte di Calimala and the bankers 
belonged to the "crafts" an<J not to the patriciate. 

For the ancient world the exclusion of entrepreneurdom from the 
patriciate was even more a matter of course. This does not mean that the 
Roman senatorial nobility, for example, did not include r;ny "capitalists" 
— it is not at all on this level that we find ibnj diffctnee, "Capitalist" 
moneylenders were both the early Roman patrician:, vis-a-vis the peasants, 
and the later Roman senatorial families vk-a-vis their pol'tiod subjects 
— and that, as we shall scf, in no mean dimensions. I: wa; only the role 
of the entrepreneur that t*it status etiquette,, occasion dly and with vary- 
ing flexibility backed up by the law, forbade to the truly patrician 
families of both Antiquity and the Middle Ages. The objects in which 
the typical patriciate of the different ages invested its wealth of course 
varied Considerably. Nevertheless, the d':.t:rxticn remained the same: 
Whoever too noticeably crossed the line between the two forms of 
economic activity represented by the investment of wealth on the one 
hand, and by profits from capital on the other,"" was considered a 
hanausos in Antiquity and a man "not of the knightly kind" in the 
Middle Ages. In the later Middle Ages the old knightly' families of the 
cities were denied equal rank by the rural nobility because they sat on 
the c«'-i;ncil together with the men of the craff guilds — and thus: with 
entiopcneurs. It was not "greed for gain" as a psychological motive that 
wir -x :r.-.'!cd; in practical life the Roman office nobility and the medieval 



I 2 9 6 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

patriciate of the large coastal cities was just as possessed by the auri sacra 
fames as any other class in history. Rather, it was any rational, con- 
tinuously organized, and in this sense specifically "bourgeois" form of 
acquisitive operation, any systematic economic activity, that was looked 
upon with disdain. The Florentine Ordinamenti delta gjitstizia, passed 
[in 1293] to break the rule of the nobili, identify _the families who were 
to be deprived of political rights as all those whose members had in the 
past been knights — families, that is, with a knighdy style of life- In 
Antiquity the same criterion, that of the style of life, was used to dis- 
qualify all candidates for office who were actively engaged in a trade. 61 
The consequence of the Florentine ordinamenti, according to Machia- 
velli, was that any nobleman who wanted to stay in the city had to 
adapt his life style to the usages of the bourgeois strata.*" 

These, then, were the primary characteristics of the patriciate; as can 
he seen, they belong to the category of "status" characteristics. In addi- 
tion, of course, the political characteristic typical for every charismatic 
nobility has to be mentioned', namely, descent from a family that had 
once occupied certain offices and dignities, and was considered eligible 
for office for that very reason. This trait is found in the sherifian families 
of Mecca just as in the Roman nobility and in the fribunitian families 
of Venice. The closure of the group was of varying rigidity; it was less 
flexible in Venice than in Rome, where the homo novus was not formally 
excluded from the offices. Everywhere, however, when a family's eligi- 
bility for the council and for the city offices was in question, it was 
sought to ascertain whether a member of this family had previously sat 
in the council or held an office conferring council rank or, as in the 
Florentine ordinamenti, whether a knight appeared among its ancestors. 
In general, the principle of status closure became more rigid as the 
population and the importance of the monopolized offices increased. 

In some of the observations in this section we have again anticipated 
the discussion of a later period in which the old family-charismatic 
nobility has entirely or in part been deprived of its special legal status 
and is forced to share power with the demos of the Greek city, the 
fUhs of Rome, the fopolo of Italy, the "liveries" of England, and the 
Ziinfte of Germany, thus according equal status to these associations. 
This process we must now consider in greater detail. 



NOTES 

1. Sees. «i:3-; appear w smaii print in the GexmS'') edition, JTicJiwicS^g 3'i 
excursus. In his account of ^a:lv Venetian history, WeKtr in general fallows 
Hesnrich Kretechmayr, Gesdric'tiie vjn Venedig (3 vols.; Cotlj;i iVrriiis, +905- 



Hi ] The Medieval and Ancient Patrician City i 2 9 7 

1934), -Vol. I: Bis zum Tode Enrico Dandolos. Cf- also Bernhard Schmeidler, 
Der dux uni das comune Venetiarum von 1 141— 112,9 C'Historische Studien," 
Vol, 35; Berlin: Ebering, 1902); Ernst Mayer, Italienische Verfassuitgsgeschichte 
(Leipzig: Deichert & Bohme, 1909). (W) 

2. The curia was the local administrative council, composed of liturgically 
drafted officials and responsible for local tax collection; defensor is the late Roman 
designation for the highest magistrate of a city. The contrast is between these 
civilian liturgic offices and the military tribunate which predominated from the 
sixth century on. Cf. Kretschmayr, op . cit., I, 38s. 

3. Doge Pietro Candiano IV (r. 959-76), husband of Waldrada of Tuscany, 
a niece of Emperor Otto I. Cf. Kretschmayr, op. cit., I, 1 13ft, 436fF. (W) 

4. Cf- Kretschmayr, op. cit., I, 1 1 1, 

5. That is, in the island settlement which in 811 had become the official 
residence of the doge — at a time when it was still quite inferior to some of the 
other mainland and lagoon cities of the duchy (<£«catws) of Venetia. Rial to long 
remained the primary name of the town which only in the thirteenth century 
came to be generally known by the name of the territorial unit of which it was 
the capital. The old designation survives today in the Rialto ward, around the 
bridge of the same name, the old commercial quartet. Cf. Kretschmayr, op. cit., 
I, 60, 8 3 f. 

6. Kretschmayr, op. cit., I, 148. 

7. Walter Lenel, Die Entstehung der Vorherrschaft Venedigs an der Adria 
(Strassburg: Triibner, 1897), 124$. (W) 

8. Chrysobullon (Golden Bull, i.e. privilege) of Alexios I, the first Comnene 
emperor (r. io8i~ru8), of May, 1082, in which he granted Venice full free- 
dom from taxation in her trade in the Byzantine empire in exchange for aid in 
his straggle against the Sicilian Normans under Robert Guiscard. Cf. Kretsch* 
mayr, op. cit., 1, i6iff, 168, 1 7$f . 

9. Reference to the Fourth Crusade (1202-04), which Venice deflected to 
an attack on Constantinople, partly in order to have a hostile emperor replaced 
by one willing to renew the Chrysobullon on favorable terms. After the fall of 
the city and the foundation of the Latin Empire (1204), the phrase quartae et 
dimidiae partis totius Romanic imperii dominator was added to the styles of the 
doge. 

10. Enrico Dandolo, doge 1 192-1205. In his oath of office, the limitations on 
the dogal power seem to have been spelled out in detail for the first time. Cf. 
Kretschmayr, op. cit., I, 331, 341. 

11. Publicum placitum or curia ducts: the public court meeting, at times also 
an acclamatory quasi-legislative meeting, which from the late ninth century on 
met in the ducal palace under the chairmanship of the doge. Cf. Kretschmayr, 
op. cit., I, ipiff, 197. 

12. Cf. Schmeidler, op. cit., 138.; Kretschmayr, op. cit., I, 3275. 

13. Quaestio repetundarum-' permanent jury court (.quaestio~) instituted by 
the lex Calpurnia of 149 B.C. to try colonial and provincial governors for extor- 
tion (ic pecuniis repetundis) and exploitation of their subjects. Pauly-Wissowa, 
RE, vol. 48 (Stuttgart, 1963), cok. 763!!. 

14. Cf, Lenel, op. cit., 143?.; Schmeidler, op. cit., 43-48, 678. 

14a. On the origins of these party formations and their gradual interlocal 
coalescence, see Robert Davidsohn, "Die Entstehung der Guelfen- und der 
Ghibellinen-Partei," in his Forxkungen zur Geschichte von Fforenz, IV ( Berlin t 
Mittler, 1908), 29-66. 

15. Lists detailing the contributions (army contingents, later a money tax) 



I298 THE CITY (NON-LEGITIMATE DOMINATION) f Ck. XVI 

due from the medieval German Estates at the accession of a German Icing, in sup- 
port of his armed expedition to Rome (Romerzttg) to obtain from the pope the 
coronation as emperor of the Holy Roman Empire. 

16. G. Hanauer, "Das Berufspodestat im dreizehnten Jahrhundert," Mit- 
teilttngen des Institute fur osterreichische Geschichtsforschung, XXIII (1902), 
377-426, passim. (W) 

17. Ibid., 395. 

18. Ihid., 426. 

19. Cf. below, n. 57 on the Regensburg "Auer Win-en". 

20. King Stephen of Blois Cf- JI 3?— 54). whose claim to the throne was 
contested by the Plantagenets. He was succeeded by Henry II Piantagenet, the 
first Angevin king. (W) 

21. -On the firma hurgi, cf. below, sec. iv:io:D; J. Hatschek, Englische Ver 
fassungsgeschichte, 109$. (W) 

2a. For the "companies," i.e., the guilds of individual trades or crafts such 
as the (merchant) companies of the drapers or fishmongers, or the (craft) com- 
panies of the coopers, cutlers or shipwrights, see S. Thrupp, The Merchant Class 
of Medieval London, passim. 

23. "Scivini (Schbfferi)" in the German text; however, Weber is obviously 
thinking of the 24 ward presidents, elected for long terms or until removed, the 
aldermen (alderntanni in the Latin documents) who together with the annually 
elected mayor and the common council formed the London city government. The 
scivini actually were subordinate officials of the London craft guilds (cf. Hegel, 
Stadte und Gilden, op. cit., I, 70, 78 n. 2). The number of councillors was in 
fact much larger than that of aldermen (for a collation of the changing council 
strength cf. Thrupp, The Merchant Class of Medieval London, 79); Weber was 
probably misled by Hegel's statement (op. cit., ?8f.) that the councillors, like 
the aldermen, were elected by wards. 

24. See below, sec- 111:9. 

25. On Hellas of the tribal aristocracy, cf. now M. I. Finley, The World of 
Odysseus (New York: Meridian Books, 1959). 

26. Iliad, bk. II, 494-759. 

27. Iliad, bit. VI, 16B-1J1. 

28. Odyssey, bk. IX 4c. 

29. Iliad, bk. XVIII, 478-608, esp. 503L 

30. Odyssey, bk. VI, 259, 293. 

31. Iliad, bk. II, 212-77. Cf. also Finley, TJte World of Odysseus, 1 1 7fT. 

32. Thus Eumaios the swineherd, Odysseus' purchased slave. Cf. Odyssey, 
bk. XIV, 6r-66 and Weber, GAzSW, roi.n. 1. 

33. Iliad, bit. XXIII, 257-897. 

34. On the Cyrenaican silphion trade, cf. above, ch.XVLi, n. 16. 

35. On the early Greek city state, cf. Ehrenberg, The Greek State, Part I 
and the bibliographical essay, ihid., 243-56. 

36. Cf. Eberhard Gothein, Die Culturentwicklung Sud-Italiens in Einzel- 
Darstellungen (Breslau: Koebner, 1886), 162-242 for A<juila. In this case the 
incasamento- — thus the Italian term, an almost literal equivalent of synoikismos 
— was compulsory; Emperor Frederick II, in an attempt to contain the Norman 
feudal barons of the Abruzzi mountains, ordered the villages of the Atemus val- 
ley to reserde in the new city and all casteUi in the territory to be razed within 
two months. The foundation of Alessandria (near Turin, 1168) is mentioned in 
Gothein, Wirtxhaftsgeschickte des Sch-warzwaldes und der angrenzenden Land- 
schaften (Strassburg: Triibner, 1892), 63. 



Hi } - The Medieval and Ancient Pr-trtcian City i 299 

37. On D.^-elea, cf. be?ow, ti. 39; on the controversy about the fygor of 
T-_os in Asia ^inor, which may have bcevi castle districts in the territory or 
militia districts tor the manning of tht* wdil toweri r,1i the town itself, st;c Pauly- 
Wissowj, HE, ?.d srries, V ( 1934). col. 5*-.iti. 

?,8. a. Weber, GAzSW, 116, 122, 217 , 

39, The Detw.Ttiowjiai formed one of jhe An*.: p lira ivies. A stele found near 
its cultic center, Decelea, was covered by inscriptions, summarizing the resolu 
tions of the association regarding admission procedures. While in the hrst in- 
scription, dating from 496—495 B.C., rhe noble clan of the Decelean castle still 
played a considerable role, it was no longer mentioned in a second inscription 
later in the fifth century; from this it was concluded — though not without con- 
troversy — that the role of the nobility in the phratry had declined between these 
two points in time. Cf. art. "Demotionidai" in Pauly-Wissowa, RE, V (1905), 
cols, 194-202, and Weber, GAzSW, 1 36. 

40'. Cf. art. "Drakon," in Pauly-Wissowa, HE, V («9°s). col. 1653. 

41. On the land allocation on Rhodes, cf. Weber, GAzSW, 152. 

42. Unlike the "tribes" of the Ramnes and Tides, which legend derived 
from Kings Romulus and Titus Tatius, the third tribus of the early city constitu- 
tion could not be identified with one of the mythical royal names; legend instead 
explained it as a "naturalized" group of military allies. 

43. Another mythical king, Tarquinius Priscus, was said to have enlarged 
the Senate — and thus the circle of noble families represented there— from 100 
to 300; the new members^ the patres minorwm gentium, in later times voted only 
after the "fathers" of the old families. Classical writers disagreed as to whether 
the gentes miwores were of patrician origin (Cicero) or were promoted plebeians 
(Suetonius). Cf. art. "gens" in Pauly-Wissowa, RE, VII (1912), col. no2f. 

44. On the banking house of the "Grandsons of Egibi," which existed in 
Babylon from the seventh to the fourth century B.C., see Fritz M. Heichelheim, 
An Ancient Economic History, II (Leiden: SijthofF, 1964), 718. 

45. Allusion to the party divisions of the early sixth century, which shook 
Atlica shortly after the Solonic reforms, between the landlords of the plain (the 
yediakoy), the trading and sea-faring interests of the coast (the pardlioO, and the 
radically democratic small peasantry of the Diakria hill district (the diakriot). 
Cf. Weber, GAzSW, 134, 152; A. Andrewes, The Greek Tyrants (New York: 
Harper Torch book, 1963), jo2rf (on the three parties); Ehrenberg, The Greek 
State, 3of.; R. von Pohlmann, Grieckische Gesckichte und QueUenkunde, 5th 
ed, (Munich; Bei.k, 1914), 88-97. 

46. On Hesiod's family, cf. below, sec. v, n. 32. 

47. In German medieval cities, small traders and artisans who stood in a 
special tutelary relationship to the Carolingian king, the city lord, and later to 
powerful patricians, owing certain services and receiving protection, assistance in 
the courts and other aid. Cf. Hans Planitz, Die deutsche Stadt im Mittehtlter 
(Graz: Boehlau, 1954), 268f. 

48. The so-called "Servian" army organization included five unarmed units, 
two of which comprised the military carpenters and smiths: the centuriae fabrum 
tignariorum and fabrum aerariorum;. the others were two units of musicians and 
one of replacement personnel. On their position within the Roman political sys- 
tem and the comitia centuriata, see Theodor Mommsen, Romisches Staatsrecht, 
III (first ed., Leipzig: Hirzel, 3887), 281-90. 

49. E.g., Mommsen, op. cit., I (znd ed., 1876), 204-212. 

50. During the Roman republic, an interim official with a five-day tenure of 



I3OO ' THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

office who conducted affairs when for some reason both consulships were vacant. 
Cf. Mommsen, op. cit., I, 633ft*. 

51. On the early Greek councils in general and the Spartan gerotisia, cf. 
Ehrenberg, The Greek State, 59, 250: The prytaneis of the naucraries must be 
distinguished from the later prytans of the Cleisthenian council, the representa- 
tives of the ten post-reorganization phylae (cf. above, ch. XVI:ti, n. 16). The 
naucraries were a pre-Solonic institution, the smallest subdivision of the four 
original Ionian phylae— twelve to each tribe, and thus 48 in all. Originally, these 
were probably fiscal units, responsible for the maintenance of a certain number 
of warships, but later they became general administrative districts headed by a 
prytanU. Relatively little is known about the council formed by these district 
heads, on which cf. Ehrenberg, op. ch,, jof. 

52. Membership in the later Areopagus fell to all former archontes, and in 
the Roman Senate to all who had hc T d a curule office. 

53. Ruling family of Corinth, 926(>)-0j7, when it was overthrown by 
Kypselos, one of the early tyrants. Cf. Andre wes, The Greek Tyrants, 12, 43-49. 

54. Seventh century b.c. war between Chalets and Ererria, on Euboea island, 
over possession of the Lelanrine plain. 

55. "Dwellers around," the inhabitants of dependent communities which 
owed war services to the Spartan state, but as r->.i -citizens enjoyed no active 
political rights. 

56. Spartan military governors of conquered cities during the later expan- 
sionary period. — 

57. Early 14th century. When the Auers, who for a number of years had 
wielded power in the city (with the help of a retinue of Mmttmannen), were 
expelled in 1334, the Biirgcrtneister position was for ten years restricted to out- 
of-towners, quite in the manner of the Italian podestd. Cf. J. Langoth, SJkizze 
einer Entwicklungsgeschichte der freistadtischen Verfassung Regensburgs im 
MitteUdter (Stadtamhof, 1 866), 

58. A Corinthian-Corcyrean settlement on the present-day Albanian coast, 
the oligarchy of which conducted trade with the interior through a "factor" on a 
common account. Cf. GAzSW, 101, 107. 

59. Cf. Hegel, Stadte und Gilden, op. at., I, 79f.; Thrupp, The Merchant 
Class of Medieval London, 73—83. Weber is probably in error with respect to the 
election of the Common Council by craft guilds after 1463: both Hegel and 
Thrupp indicate that the return to election by waids in 1384 was final. Perhaps 
he misinterpreted Hegel's statement (op. at., 79) <&t die livery companies (the 
upper guilds) obtained the right to parriejpsJe, fcmether with the London Com- 
mon Council, in the election of mayor ana dtenBt £1468) and of the members 
of the House of Commons G476). The year 1463 ip given in the text may then 
be due to misreading of 1 468 in the handwrittrt faatfcj script, 

60. Vermdgensttnhge and Kapitalgewiim. Ote Weber's differentiation between 
the utilization of "wealth" (yermogen) and fif "coital," categories which are as- 
sociated, respectively, with the concepts cf "bedjgeiry \ management" (Haushalt) 
and "acquisitive activity" (Erwerb'), see supra, Part Obey ch. II:ro-ri,esp. p. 98ff. 

61. Cf. Mommsen, Romisches $taatsr«cht; I (a«aJ«d., 1876), 47of. 

62. Niccolo Machiavelli, History of Florence, bk. HI, ch. r (New York: 
Harper Torchboolc, i960), 109. 



iv ] _ The Plebeian City .1301 

iv 

The Plebeian City 



1 . The Destruction of Patrician Rule Through 
the Sworn Confraternity 

The manner in which the rule of the patriciate was broken shows 
strong "external" parallels in the Middle Ages and in Antiquity — 
especially if the large medieval cities are considered, and particularly 
those of Italy, where the development proceeded, as in the cities of 
, Antiquity, on an essentially autonomous course, i.e. without interference 
from extra-urban powers. 

In Italy, the next crucial stage of development after the rise of the 
fodesta came with the formation of the fOfofo. Like the German craft 
guilds, the Ziinfte, the Italian foipolo was composed of economically 
varied elements; above all, it comprised both entrepreneurs and handi- 
craft workers. In the struggle against the knightly families the entre- 
preneurs initially played the leading role; they instigated and financed 
the sworn confraternity of the "crafts," whereas the artisan guilds pro- 
vided the necessary manpower for battle. Frequendy the sworn associa- 
tion of the craft guilds appointed a single individual to head the move- 
ment, in order to safeguard the achievements obtained in the batde with 
the patriciate. Thus, after the expulsion of recalcitrant noble families in 
1336, Zurich was ruled by the knight Rudolf Brun and a council com- 
posed in equal parts of representatives of the "Constabulary" — the 
corporation of the knights remaining in the city and the entrepreneurial 
"crafts" of the merchants, drapers,' salt dealers, and goldsmiths — and of 
the minor "crafts" of small artisans; under this leadership the city was 
able to withstand the siege of the Imperial army. 1 In Germany the 
sworn confederation of the "crafts" was'iB most cases only temporarily an 
association separate from the commune. Its separate existence was ended 
either through the admission of "craft" representatives into the council 
or through the absorption of the entire citizenry, including the nobility, 
into the craft guilds. As a permanent organization, in the form of a city 
guild, the fraternity of the "crafts" was maintained only in some cities 
of Lower Germany and the Baltic region. Its character as a derivative 



I 3 O 2 THE CITY (nON-LEGITIMATE DOMINATION) [ Ck, XVI 

organization is shown in the composition of its governing body, which 
was made up of the "guild-masters" of the individual "erafe." In the 
fifteenUi century no one could be imprisoned in Miinster widjout the 
agreement of the guilds. The city guilds thus functioned as protective 
associations against the judicial activity of the councils. In administra- 
tive matters, too, the councils were joined, either on a permanent basis 
or only for important matters, by guild representatives without whom 
no decision was supposed to be made. In Italy, such protective associa- 
tions of the citizenry against the patriciate assumed much more signifi- 
cant dimensions. 



2. The Revolutionary Character oj the Popolo as a 
Non-Legitimate Political Association 

The Italian popolo was not only an economic category, but also a 
political one. It was a separate political community within the urban 
commune with its own officials, its own finances, and its own military 
organization. In the truest sense of the word it was a "state within the 
state" — the first deliberately nonlegitimate and revolutionary political 
association. The causes for this phenomenon must be sought in the fact 
that in Italy, much more than elsewhere, knightly families setded in 
the cities themselves, due to the much stronger development of economic 
and political means of power of the urban nobility. The consequences 
of this fact will engage us frequendy in the following analysis. 

The association of the popolo, which confronted these knightly 
families, rested on the confraternization of the occupational associations 
(arfi or paratici). 2 The separate political community created by these 
associations was in the earliest cases (Milano, 1198; Lucca, 1203; Lodi, 
1206; Pavia, 1208; Siena, 1210; Verona, 1227; Bologna, 1228) officially 
known by such names as sodetas, credenia, mercadanza, comunanza, or 
simply as popolo. The highest official of the separate commune of the 
popolani was usually called capitano del popolo. He was ejected for a 
short term, usually a year, was paid a salary and, like the podestd of 
the commune, was often called in from another town, in which case he 
had to bring his own staff along. The popolo supplied him with a militia 
levied in most cases on the basis of city- wards, or by die arti. Like the 
podestd of the commune, he often resided in a special "house of die 



iv ] The Plebeian City i 3 o 3 

people" with a tower, the fortress of the popolo. The capitano was 
assisted, especially in the financial administration, by separate bodies - 
composed of representatives (jmziani or priori) of the craft guilds who 
were elected from the city wards for short terms of office. They claimed 
the right to protect the popolant in the courts, to contest decisions of the 
authorities of the commune, to address proposals to them, and often a 
direct role in legislation." But above all they participated in the formula- 
> tion of the decisions of the popolo itself. 

Up to the time of its full development, the popolo had its own 
statutes and its own tax system. At times it even established the 
principle that resolutions of the commune should be valid only if agreed 
to by the popolo, so that new laws of the commune had to be entered 
in both statute books. For its own decisions it enforced, wherever possible, 
admission into the statutes of the commune, and in a few cases the 
decisions of the popolo even obtained priority over all other statutes, 
including those of the commune (abrogent statutis omnibus et semper 
ultima intelligantur in Brescia).' The jurisdiction of the podesta was 
( challenged by that of the mercanzia or domus mercatorum* which 
asserted competency especially in all affairs of the market and the trades 
and thus constituted itself as a special court for the merchants and artisan 
producers. Beyond this, it often obtained universal significance for the 
popolani. In the fourteenth century the podesta of Pisa had to swear that 
he and his judges would not inject themselves into disputes among 
the city's popolani. 

At times the capitano attained a broad general jurisdiction compet- 
ing with that of the podesta and, in a few cases, even a superior appeals 
jurisdiction. Very frequently he obtained the right to participate in the 
sessions of the communal governing agency with control functions and 
with the power to dismiss meetings; occasionally he had the authority 
to convoke the citizenry of the commune, to execute the resolutions of 
the council if the podesta failed to do so, to pronounce and to remit 
banishment, and to supervise or to assist in the administration of the 
communal finances and, most important, of the property of banished 
citizens. In the official ranking, the capitano stood below the podesta, 
but in a case like that just described, 5 he had in fact become an official 
of the commune, a capitaneus populi et communis; if, in Roman 
terms, he was formally a collega minor, he was nevertheless in practice 
usually the more powerful of the two. Often the, capitano also had au- 
thority over the military forces of the commune, the more so if these 
consisted of mercenary troops which could be maintained only from 
the tax payments of the rich popolani. 



13 4 T HE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

3. The Distribution of Power Anting the Status Groups 
of the Medieval Italian City 

Wherever the popolo was completely successful, the nobility was, 
from a purely formal point of view, left with only negative privileges. 
While the offices of the commune were open to the popolani t the offices 
of the popolo were not open to the nobility. The popolani enjoyed spe- 
cial privileges of trial procedure if they had been insulted by a nobile. 
The capitano and the anziani supervised the administration of the com- 
mune, while no similar control over the popolo existed. At times only 
the resolutions of the popolo concerned the entire citizenry. In many 
cases the nobility was explicitly excluded temporarily or permanently ' 
from any participation in the administration of the commune; the most 
famous is that of the Florentine Ordinamenti delta giiCsiizia of Giano 
della Bella in 1293. The capitano — in Florence the leader of the burgher 
levy of the craft guilds — was supplemented by an extraordinary, purely 
political official with a very short term of office: the gonfalowere della 
giustizia (standard-bearer of justice), who was put in command of a 
special people's militia of one thousand men drawn by lot and subject 
to immediate call. He was to protect the popolani, to prosecute nobles 
and to execute sentences against them, and to supervise the observance 
of the ordinamenti. The politicized judicial system with an official spying 
network, abetment of anonymous accusations, an accelerated inquisitorial 
procedure for magnates, and much simplified methods of proof (by 
"notoriety") was the democratic counterpart to the Venetian trial before 
the Council of Ten. The ' materially most incisive measures against the 
nobility included: the exclusion from the city offices of all families ad- 
hering to a knightly style of life, the exaction of pledges for loyal con- 
duct from the nobility and the imposition of liability for each member's 
behavior upon the entire patrician family, the passing of special penal 
laws for political offences of the magnaH, including that of insulting a 
popolano, and the prohibition of purchasing real estate bordering on 
the property of a popolano without having obtained the permission of 
the latter. 

The guaranty for the rule of the popolo was assumed by the inter- 
local Parte Guelfa, whose party statutes were treated as part of the city 
law. Only enrolled party members could be elected to a city office. The 
power instruments of the party have already been discussed. The very 
fact of a guaranty by a party organization which was essentially based 
on knightly military Forces makes it reasonable to assume that the ordi- 
namenti had not really destroyed the social and economic power of the 
patriciate. Indeed we find that within ten years after the promulgation of 



iv ] The Plebeian City 1305 

these Florentine class laws, which had been adopted by numerous other 
Tuscan cities, the feuds between noble families flourished once again; 
the rule by small plutocratic groups was never interrupted at all. Even 
the offices of the y&polo were nearly always filled with noblemen, foi 
noble families could be accepted among the popolani by an explicit act. 
The exacted renunciation of the knightly style of life was only partially 
effective; basically it amounted to no more than a pledge of political 
obedience and enrollment in one of the craft guilds. The important so- 
cial effect was a certain fusion of the urban tnagnati with the p&polo 
grasso (the "fat people"), a term used to designate the popolani strata 
with a university education or capital wealth which were organized in 
the seven "upper" guilds (arti maggion) of the judges and notaries, 
bankers, merchants of foreign cloth, merchants of Florentine woolens, 
silk merchants, doctors and druggists, and fur dealers. Initially all city 
officials had to be elected from these upper guilds in which the noble- 
men enrolled. Only after several additional insurrections did the fourteen 
"lower" guilds (arti minon) of the fofolo minuto — i.e., diose of the 
small entrepreneurs — gain a formal share in the power. The artisan 
strata that did not belong to these fourteen lower guilds obtained a very 
temporary share in the government only after the Ciontfi revolt of 1 378 
— in fact, they obtained an independent guild organLLjion only then.* 
Only in a few places and temporarily did the small burghers manage, as 
in Perugia in 1378, to exclude by law from the council of friores not 
only the nobility, but also the %>opolo grasso. Characteristically, these 
lower propertyless strata of the citizenry as a rule enjoyed the support 
of the no\nl\ in their attack against the rule of the fopolo grasso, just as 
in later years the tyrannis was founded with the aid of the masses. Even 
earlier, in the thirteenth century, the nobility and these lower strata had 
frequendy coalesced against the onslaught of the burghers. Whether 
such alliances came about, and how strong they were, was determined 
by economic factors. The interests of the small artisans could collide 
Very sharply with those of the entrepreneurial guilds wherever the 
putting-out system was fully developed. In Perugia, for instance, the pace 
of this development was so stormy that in 1437 on?, individual entre- 
preneur put to work not only 28 filatori but also 176 filatrici [ie., male 
and female spinners], as Count Broglio d'Ajano has ihown/ The situa- 
tion of the small artisans under the putting-out system was often pre- 
carious, their employment frequendy discontinuous. Out-of-town workers 
competed for the jobs, and hiring by the day wa* pi icticed. The entre- 
preneurial guilds sought to regulate the conditions of the putting-out 
contract in as one-sided a manner as the guilds of the artisan producers 



1306 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

working for them which, like the cimatori of Perugia, prohibited the 
underbidding of established wage scales." 

These strata obviously expected nothing good from the rule of the 
"upper" crafts. However, they nowhere obtained permanent political 
power. The proletarian stratum of travelling journeymen, finally, was 
everywhere without any share in the city government. The participation 
of the "lower" crafts for the first time brought an at least relatively 
democratic element into the city councils, but their factual influence 
nevertheless remained small. The custom of appointing special commis- 
sions for the election of officials, which was common to all Italian com- 
munes, was supposed to eliminate demagogy and to establish a line o£ 
political responsibility for the election managers — men who are often 
anonymous and not held accountable in the modem European demo- 
cratic polity. The system made possible a careful selection and orderly 
organization of the officiating council members and officials, but normally 
it was bound to issue in compromises between only the socially in- 
fluential families; above all, it could never ignore the desires of the 
financially decisive strata. Only in times of competition for power be- 
tween several families of equal strength or in periods of religious excite- 
ment could "public opinion" gain any positive influence on the composi- 
tion of municipal officialdom. The Medici, for instance, gained domi- 
nance in Florence without themselves holding office, merely through 
utilizing their influence and a systematic manipulation of such election 
procedures. 

The successes of the foydo were not achieved without violent and 
often long drawn-out struggle. The nobility would withdraw from the 
cities, to continue its feud against them from its casdes. The urban 
armies, in turn, would break the castles; at times the cities would 
shatter the traditional seigneurial constitution of the countryside through 
legislative acts declaring the liberation of the peasantry. The means of 
power, which it needed for crushing the nobility, the popolo found in 
the recognized organizations of the craft guilds. The communes had 
utilized the "craft" organization from the very beginning for administra- 
tive purposes; they had also drafted the tradesmen, in guild-based units, 
for guard duty in the fortifications and increasingly also for campaign 
service as foot soldiers. Financially, the aid of the entrepreneurial 
"crafts" increasingly became indispensable with the advance of military 
technology. The intellectual and administrative backbone of the ^opoh 
was supplied by the jurists, above all by the notaries and often also by 
the judges, and by the other learned professions such as the physicians 
and druggists. These intellectual strata, which as a rule were organized 



h? ] The Plebeian City I 3 o 7 

in "crafts" of their own, always belonged to the yopolo and played a 
leading role similar to that of advocates and other jurists within the 
tiers etat in France. The first captains of the popdo had in most cases 
previously been heads of one of the craft guilds or of a guild association. 
The mercadanza in particular, originally a non-political association of the 
traders and artisan producers (for in Italy, too, as Ernst Salzer has 
emphasized correctly, -the term mercatores covers both groups and not 
merely the merchants), 8 normally constituted a first stage in the political 
organization of the popolo; its presiding officer, the foiestas mercatorum, 
frequently became the first capitaneus fopuli. 

The entire development of the jiopolo was initially oriented towards 
an organized protection of the interests of the pofolani before the courts, 
corporations and agencies of the commune. As a rule the movement was 
triggered by the often far-reaching denial of legal rights to commoners. 
It happened not only in Germany that purveyors and craftsmen were 
paid with the cudgel rather than in the desired coin, and subsequently 
foi^nd no remedy in the courts (as is reported in a Strassburg case). 
Even more inciting seem to have been the personal irsults and threats 
dealt out to the -popolani by the militarily superior nobility, which con- 
tinued to recur everywhere even a century after the formation of the 
separate political association of the -popolo. The status pride of the 
knighthood and the natural resentment of the bourgeoisie forever made 
for collisions. 

The development of the captaincy of the popoh thus began with a 
right of assistance and control against the authorities of the commune, 
similar in type to the rights of the Roman tribune of the plebs; from 
there it developed into a vetoing power, and ultimately into a coordinate 
office with universal competencies. The rise of the popolo was aided by 
the feuds of the patrician families, which injured the economic interests 
of the burghers and often provided the first occasion for the intervention 
of popolani officials. An additional favorable factor to be mentioned was 
the ambition of individual noblemen to utilize the popolo for the erec- 
tion of a personal tyranny. The nobility everywhere lived in continuous 
apprehension of such desires, and everywhere the divisions within the 
ranks of the nobility gave the popolo the opportunity to enrol the mili- 
tary power of one part of the knighthood in its own service. On the 
purely military side, the growing importance of the infantry vis-a-vis 
the knightly cavalry threw its first shadows over these events. It did so 
in combination with the beginnings of rational military technology: In 
the Florentine armies of the fourteenth century we first hear of the 
"bombards," the forerunners of modern artillery. 



It 



I308 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

4. Ancient Parallels: Plebs and Tribune in Rome 

The development of the demos and the plebs in Antiquity shows 
mi iy external similarities to the above development. This is especially 
true for Rome, where the rise of the separate political community of 
the plebs, with its own officials, is quite comparable to that of the 
popofo. The tribuni plebis were originally elected heads of the non-noble 
citizenry of the four city districts, and she aediles, in the opinion of 
Eduard Meyer, were the administrators of the corporate cult sanctuary 
which at the same time was the treasury of that group; hence they were 
also the treasurers of the plebs. 1 " The plebs itself was constituted as a- 
sworn brotherhood which undertook to strike down anyone obstructing 
its tribunes in their defense of plebeian interests — for this is what is 
implied in the designation of the plebeian tribune as sacrosanctus, as 
contrasted to the "legitimacy" of the officials of the entire community of 
Rome. 11 Analogously, the Italian capitano del popoto normally lacked 
the designation dei gratia which the officials with legitimate power, the 
consules, used to append to their titles. 

The tribunus plebis thus did not possess legitimate authority of 
office and its identifying characteristics: the right to commune with the 
gods of the city, the auspicia, and the most significant attribute of 
legitimate imperium, the right to inflict legitimate punishment. 18 In 
place of the latter he had, as the head of the plebs, the power to execute 
a sort of lynch law against anyone caught obstructing his official actions: 
without trial and judgment, he could have such persons arrested and 
executed by haying them thrown off the Tarpeian rock. In close parallel 
to the capitano and the anziani, the powers of office which the tribune 
later did possess developed from his right to intercede and to inhibit 
official actions of the magistrates against plebeians. This right of inter- 
cession — a negative power common to all Roman officials for use against 
coordinate or inferior authorities — was orginally the main right of the 
tribune. Just like the capitano, he developed this right into a general 
power of review and veto, and thus into the de facto highest power 
within the limits of the urban peace district. On campaigns, however, 
the tribune had no say: there, the command of the chief military officer 
prevailed without restrictions. This territorial limitation, which did not 
apply to the older authorities, is a characteristic reflection of the specif- 
ically "bourgeois" origin of the tribunate. 

The political accomplishments of the plebs were made possible by 
the tribunitian veto power alone. Through it, the plebs obtained the 
right of provocatio, i.e., to challenge criminal verdicts [in the plebeian 
assembly], the mitigation of the law of debtorship, the scheduling of 



tv ] The Plebeian City i 309 

court sessions on market days (in the interest of the rural population), 
and an equal participation in the state offices, ultimately including also 
the- priestly offices and the comicil. Finally, it was through the tribuni- 
tian veto that the flebs managed to get its resolutions Qplebiscita) recog- 
nized as binding for the entire community. This achievement which, 
as we saw, was sometimes also attained in the Italian communes, was 
put into force in Rome through the lex Hortensia at the time of the last 
secession 6f the plehs [287 b.c.]. Formally, of course, this signified the 
same curtailment of patrician power as it did in medieval Italy. 

After the culmination of the older status struggles in this event, the 
tribunate moved out of the political limelight. Like the capitano, the 
tribune now became an official of the commune, and his position became 
one stage in the developing career sequence of municipal magistracies, 
an office which differed from other offices only in that election was by 
the plebs alone. The historical differentiation between plebeian and 
patrician was in any case becoming almost devoid of meaning in prac- 
tical life as a new nobility developed, based on office-holding and wealth 
(nobiles and equites). In the class struggles, which now began, the old 
political rights of the tribuni phbis were not again powerfully reasserted 
until the time of the Gracchi, when they were used as instruments in 
the service of the political reformers and of the economic class move- 
ment of the politically disadvantaged "bourgeoisie" in its conflict with 
the office nobility." It was the ultimate effect of this revival that the 
tribunitian power later became, in addition to the military imperium, 
one of the life-long official attributes of the princeps. 1 * 

These similarities between the medieval Italian and the early Roman 
development are very striking, especially since they appear in spite of 
fundamental political, social and economic differences, which will be 
discussed soon. It is a fact, after all, that only a limited variety of differ- 
ent administrative techniques is available for effecting compromises be- 
tween the status groups within a city. Similarities in the forms of 
political administration can therefore not be interpreted as identical 
Superstructures over identical economic foundations. These things obey 
their own laws. 



5. Ancient Parallels: Demos and Ephors in Sparta 

We may n.w ask whether this Roman development did not have 
parallels in Antiquity itself? Separate political associations like that of 
the plebs or the Italian popolo cannot be found elsewhere in the ancient 
world, as far as is known. But there are phenomena of a somewhat re- 



I 3 I O THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

lated character. Even in Antiquity the ephors of Sparta were viewed by 
some (Cicero, de Be Publica ii. 59; de Legibus iii, 16) as a parallelism 
of this kind. It is essential, however, to interpret this correctly. 

In contrast to the "legitimate" [two Spartan] kings, the [five] ep.iorf 
("overseers") had a limited term of office of one year; like the Roman 
tribunes, they were elected not by the three [original Doric], clan phylae, 
but by the five territorial phylae of the Spartiates. The ephors convoked 
the citizen assembly; they had jurisdiction in civil and also in criminal 
matters (though perhaps not without limitations in the latter sphere), 
summoned even the kings before their chair, compelled officials to give 
an accounting of their actions, and suspended them. The administration- 
was under their control, and together* with the elected council of elders, 
the gereusia, the ephors in effect constituted the supreme political 
power within the Spartan territories. In the city district the kings were 
restricted to honorific privileges and purely personal influence; on 
campaigns, however, they held the full disciplinary power, "which in 
Sparta was exceedingly severe. It was" probably a phenomenon only of 
the late period that ephors accompanied the kings also during cam- 
paigns. It does not speak against a tribunitian quality of the ephors' 
power that they may have originally been appointed by the kings— 
perhaps, as some believe, even after the First Messenian War; u the 
same may in fact have been true for the first trilnts heads in Rome. Nor 
does the more weighty fact that they lacked the typical tribunitian 
power of intercession — a power also possessed, by the medieval caplanei 
fopuli — negate the assumption of a tribune-like character of the ephp- 
rate. The tradition, of course, states that the original function of these 
officials was to protect the citizens against the kings. The later absence 
of this function is to be explained from the unconditional victory of the 
Spartan demos over its opponents, and from the fact that the demos 
itself was subsequently transformed into a ruling class, originally ple- 
beian, but later in fact oligarchic, which exercised an absolute control 
over the entire country. A nobility was unknown in Sparta during the 
historical period. The polis jealously guarded its rulership position 
vis-a-vis the Helots — against whom a "declaration of war" was ceremoni- 
ously pronounced each year in order to -provide a religious justification 
for their status as outlaws — and likewise its political monopoly position 
vis-ft-vis the Perioeci, citizens who were not members of the military 
association of the Spartiates. 1 * But equally jealously, at least in principle, 
it guarded the internal social equality of the full citizens. Both principles 
were sustained by a spying system reminiscent of Venice, the irypteia." 
According to the tradition, the Lacedaemonians were the first Greeks to 
have abolished the usage of a distinct costume as part of the noble style 



iv ] The Plebeian City i 3 1 1 

of life, which- thus must have existed previously. 1 * Both these sumptuary 
regulations and the severe restriction of royal power almost certainly were 
the results of a struggle and subsequent compromise. Convincing 
evidence for this can be seen in the oaths mutually exchanged [once 
each month] between the kings and the ephors — a kind of periodically 
renewed constitutional contract. Some doubts {about the rational or 
revolutionary origin of the ephorate] are raised, however, by the fact 
that the ephors seem to have exercised certain religious functions. The 
explanation for this may be that they became "legitimate" communal 
officials to a much greater extent than the Roman tribunes. At any rate, 
the crucial features of the Spartan polis too strongly suggest a rational 
design to be residuals of very ancient institutions. 18 



6. Stages and Consequences of Democratization in Greece 



A. PIFFERENTIAL VOTING RIGHTS 

In the other Hellenic communities we can find no such parallels to 
the Roman development. However, everywhere we do find democratic 
movements of the non-noble citizenry against the patriciate which, in 
the majority of cases, led to the temporary or permanent removal of 
patrician domination. As in the Middle Ages, this signified neither an 
equalization of all citizens with respect to voting rights and eligibility 
for the offices or the council, nor even the admission of all free families 
entitled to settle in the town into the citizens' association. The freed- 
men, by contrast to Rome, here never did belong to it. The political 
equality of the free-born citizenry was vitiated by the gradation of voting 
rights and office eligibility, originally in terms of ground rents and armed 
service capabilities and later according to wealth. This gradation of 
rights was never completely abolished even in Athens, just as in the 
medieval cities the unpropertied strata nowhere permanently obtained 
equal status with the middle class. 

The voting right in the. general citizens assembly was either granted 
to all land owners attached to the demes 10 and enrolled in the military 
association of a phratry — this was the first stage of "Democracy" — or also 
to the owners of other types of wealth. The decisive criterion was 
initially the capacity to equip oneself for service in the hoplite infantry, 
with whose emergence this upheaval was associated. The mere gradation 
of voting rights, as we shall see shordy, was by no means the most 
important instrument for preserving the preponderance of the propertied 



I 3 I 2 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

strata. As in the Middle Ages, the formal composition of the burgher 
assembly could be regulated in ever so many ways and its formal com- 
petencies could be meted out ever so generously without a seriously 
destructive effect on the social power of the property owners. 

The evolution of the demos produced different results in various 
places. The immediate, and in some cases permanent, result was the 
development of a Democracy externally similar to that found in many 
Italian communes: The wealthiest stratum of non-noble citizens, classi- 
fied according to some census and mostly owners of money, slaves, 
etgasteria, ships, or trading and loan capital, gained a share in the 
council and the offices beside the patrician families whose position was 
mainly based on landed property. The mass of the small tradesmen, re- 
tailers, and people of small fortunes in general might remain excluded 
from the offices either legally or in practice because they could not 
afford the time. Or else, democratization might continue and eventually 
put the power into the hands of these very strata. In order that this 
could happen, however, means had to be found to mitigate their eco- 
nomic unavailability for public service — as through payments of daily 
allowances — and the census requirements for eligibility for office had to 
be reduced. But this and the de facto non-observance of the official 
stratification of the demos into classes based on wealth was achieved only 
in the fourth century, as the final form of Attic Democracy. It could 
come about only after the military importance of the hoplite army had 
disappeared. 

The complete or partial victory of the non-noble strata had two 
particularly important consequences for the structure of the political 
association in Antiquity and for its administration: [firstly, the rise of 
the compulsory territorial organization and of territorial legislation; 
secondly, the replacement of notables in the administration by function- 
aries of the demos.}. 



B, THE RISE OF THE COMPULSORY TERRITORIAL ORGANIZATION AND OF 

TERRITORIAL LEGISLATION 

We first consider the increasing transformation of the political as- 
sociation into a compulsory organization (AnstalO- One aspect of this 
^developme/u was the establishment of the territorial principle for politi- 
cal subdivisions. Just as in the Middle Ages the bulk of the citizenry 
was organized on the basis of local urban districts already during the 
rule of the patriciate, and as later at least some of the po'polo officials 
were elected by city wards, so in the ancient patrician city, too, the 
plebeians were organized on the territorial principle, especially for the 



iv ] _ The Plebeian City i 3 1 3 

purpose of allocating corvies and other public burdens. Beside the three 
old personal tribus in Rome, composed of gentes (sibs) and curiae, there 
appeared four purely territorial urban districts which were also called 
tribus and which after the victory of the flebs were joined by the 
[thirty-one] rural tribus. In Sparta four, later five, territorial phylae 
appeared beside the three old personal phylae. In the specifically "demo- 
cratic" Greek states th^ victory of Democracy was identical with the 
passage [from a clan subdivision] £0 the "deme" (demos), the territorial 
district, as the subunit of the state and the basis for allocating duties 
and rights in the polis. We will soon have to consider the practical 
significance of this change. Its consequence, at any rate, was the treat- 
ment of the polis no longer as a confraternity of defence and clan as- 
sociations, but as a compulsory territorial organization (anstaltsntassige 
Gebietskurferschafi). 

Another factor in this development was the change which occurred 
in the thinking about the nature of law. The law became the law of a 
compulsory organization (Anstaltsrecht), valid for the citizens and in- 
habitants of the city territory as such (although, as we saw earlier, there 
remained residuals of the previous state of affairsXAt the same time it 
increasingly became rationally instituted law. The irrational charismatic 
ad hoc determination of right and wrong came to be replaced by the 
statute. Parallel to the removal of patrician rule ran the beginnings oi 
legislation. Initially it still had the form of charismatic legislation by 
an aisvmneies. But before long we find a continuous (and in the end 
unceasing) creation of new law in the ekklesia (assembly) and a purely 
secular administration of justice tied to the instituted law or, as in Rome, 
to the edictal instructions by the responsible magistrate. In Athens, the 
demos was eventually asked each year anew whether the existing laws 
should be maintained or amended. This indicates how widely accepted 
the proposition had become that valid law is and must be something 
. artificially created, and that it should be based on the consensus of those 
to whom it is to apply. To be sur2, in the period of classical Democracy 
— as in Athens of the fifth and fourth centuries — this conception had 
not yet become the prevalent one. Not every decision (■psephisma') of 
the demos was a law (nomos~), and not even all those which set up 
general norms. Decisions of the demos could be considered illegal, and 
then they might be contested by any burgher before the Attic jury 
court, the heliaia. At least at that time, the decision of the demos did not 
itself create a law. The actual enactment took the fonn of a legal con- 
test, initiated upon the proposition of a new law by a citizen, as tc 
whether the old or the newly proposed rule should be considered valid. 
This litigation was conducted before a special college of jurors, the 



I 3 I 4 T**E CITY CNON-tBGITlMATB DOMINATION) [ Ck. XV 

nomotkettu (lawgivers); it obviously represents a rather quaint residui 
of the older concept of the nature of law, which disappeared only rela 
tively late. 11 But the first decisive step toward acceptance of the notioi 
of law as a rational creation had been taken in Athens with the abolitior 
of the religious and aristocratic veto, the agency of which had been th« 
Areopagus, through the law of Ephialtes [in 462 b.c.]. 



C. THE REPLACEMENT OF NOTABI^S BY DEMOCRATIC FUNCTIONARIES 

The other consequence of "democratization" to be noted is the ensu- 
ing administrative revolution. Functionaries of the demos, elected or 
chosen by lot for short terms, responsible to the assemblies and some- 
times removable, or even entire subdivisions of the demos itself, replaced 
the notables ruling by virtue of family or office charisma. The new 
functionaries were "civil servants," but not in the modern meaning of 
the word. They received only moderate compensation for their expenses, 
or daily allowances like the jurymen, who were also drawn by lot. This, 
as well as the short periods of office tenure and the very frequent pro- 
hibition of reelection, precluded the development of the professional 
character of a modern officialdom. There was no career sequence of posi- 
tions, nor a special status honor of the civil servants. Official business 
was discharged as an intermittent activity, which for the majority of 
office holders did not require their Jull attention, and the office revenues 
constituted even for men without means only an incidental, though 
desirable income. To be sure, the highest political positions, above all 
the military posts, demanded the incumbents' full working capacity; 
hence they could be occupied only by the well-to-do. For the financial 
officials in Athens, the place of our bond insurance system (Amtskau- 
riow) was taken by high census — i.e., wealth — requirements. In essence, 
these higher offices were honorary (unpaid) positions. 

The real political leader created by the fully developed Democracy 
in Periclean Athens, the demagogue, as a rule formally occupied the 
leading military position. In fact, however, his power rested not upon 
law or office, but entirely upon personal influence and the trust of the 
demos. Thus his position was neither "legitimate" nor even 'legal," even 
though the entire constitution of Democracy was tailored to his exist- 
ence, just as the modem constitution of England is tailored to the 
existence of the cabinet which also does not iule by virtue of compe- 
tent y regulated hy statute. The comparison could be extended; thus, 
mutatis mutandis, the prosecution of the demagogue because of poor 
leadership would correspond to the vote of no-confidence of the English 
Parliament, which also has never been formally instituted through 
legislation. Hie Athenian Council, whose members were drawn by lot, 



iv ] The Plebeian City 1315 

now became a mere executive committee of the demos; it lost its judicial 
competence, but acquired control over the agenda of the Assembly 
(through the proboideuma) and over financial matters. 11 

In medieval cities, the seizure of power by the fofolo had similar 
consequences: Numerous revisions of the urban law book, codifications 
of civil and trial law, a veritable flood of statutes of all kinds characterize 
the one side of the picture, and a spring tide of officials, of whom four 
to five dozen categories were sometimes to be found even in the smaller 
German cities, typify the other side. In addition to the auxiliary per- 
sonnel of the clerks and bailiffs aiding the burgomasters, we find a host 
of specialized functionaries who officiated only intermittently and for 
whom the office revenues, mainly fees, constituted only a side-income, 
albeit a desirable one. Another trait common to both ancient and medi- 
eval cities, at least the large ones, was that numerous affairs which today 
are usually handled by the regular representative assemblies would be 
handed over to special boards selected through balloting or by lot. Thus 
in Hellenic Antiquity, legislation was organized irtthis manner, but also 
other political functions such as, in Athens, the ratification through 
oath of articles of confederation and the distribution of the tributes paid 
by the confederates. In the Middle Ages, the elections — both of officials 
(especially the more important ones) and of the chief legislative col- 
leges — frequendy were handled in this way. This practice was a kind 
of substitute for a system of representation, which, in the modern form, 
did not exist at the time. Such "representatives" as did exist could only 
represent associations, as befits a state of development in which all 
political rights have the character either of traditional status honors or 
of granted privileges. In the ancient Democracy, units so represented 
would be the associations entering into a cult or political community 
(a state), or perhaps the component parts of a confederacy; in the 
Middle Ages they would be the craft guilds and other corporations. 
Only the special rights <.f associations found "representation," not the 
rights of the varying "electorate" of a tevritorial district as in modem 
parliaments. 



7. Illegitimate Rulership: The Ancient Tyrannis 

Another trait common to both the ancient and the medieval city is 
the appearance of the city tyrannis, or at least of attempts to establish it. 
In both periods this was a locally restricted phenomenon. On the Hel- 
lenic mainland, the government in a number of large cities, among 
them Athens, was seized by tyrants in the seventh and sixth centuries 
B.c, but none of these regimes lasted more than a few generations." 



I 3 I 6 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

Here the urban liberties normally perished only after conquest by a 
superior military pow< '. In the colonial areas, by contrast — in Asia 
Minor and especially in Sicily — the spread of the city tyranms was more 
permanent and in part provided the definitive constitution of the city 
state to the time of its collapse. 

The tyrannts was everywhere the product of the struggle of status 
groups. In a few cases, as in Syracuse, it seems to have been the 
nobility, pushed into a corner by the demos, which helped a tyrant to 
establish his rule. But on the whole the regime of the tyrants was based 
on sections of the middle class and on the debtors of the patricians, and 
their foes' were the noble families, whom they exiled, whose estates they 
confiscated, and who conspired against them. What finds expression 
here is the typical class contrast of the ancient world: between an urban 
military patriciate as creditors and the peasantry as debtors — a contrast 
which existed everywhere from Israel and Mesopotamia to the Greek 
and Italic world. In Babylon, the countryside had almost entirely come 
into the possession of the patricians, whose coloni the peasants had be- 
come. In Israel, debt servitude was one of the subjects regulated in the 
"Book of the Covenant" [Ex. 21:1-6; Nek. 10:31], and all usurpers 
from Abimelech to Judas Maccabaeus found support in the fugitive 
debt slaves. The promise of Deuteronomy runs to the effect that Israel 
shall "lend unto many nations" [Deut. 15:6]; i.e., that the citizens of 
Jerusalem shall be the creditors and patricians and all others their debt 
servants and peasants. The class contrasts in Hellas and Rome were 
similar. Once established, the tyranny was usually supported by the 
small peasants, a party of the nobility which was in alliance with them, 
and parts of the urban middle classes. As a rule it relied on a bodyguard, 
and for the Greek demagogue — e.g., for Peisistratos — the giant of such 
a guild by the citizenry was usually just as much the first step towards 
the establishment of a tyrannis as later in medieval Italy for the capitano 
del popolo. The tyrants also employed mercenaries. Their substantive 
policies often attempted to smoothen class and status conflicts, no less 
than did those of the aisymnetai like Charondas and Solon. ~'* Appar- 
ently the appointment of an aisymneies for the reordering of the state 
and the law or the elevation of a tyrannos were often alternative solu- 
tions for the same set of problems. The social and economic policies of 
both the aesymnetes and the tyrants, at least on the mainland, sought 
to prevent the sale of peasant land to the urban nobility and the im- 
migration of peasants into the city. In some places they attempted to 
restrict the purchase of skves, die consumption of luxuries, brokerage 
(middlemen's) trade, and grain exports — all measures characterizing an 
essentially petit-bourgeois e-u^omic policy which corresponds to that of 
the medieval "city economy''' to £>_ discussed later £sec. Jv-.ioe bfciow]. 



iv ] _ The Plebeian City i 3 r 7 

The tyrants perceived themselves, and were perceived everywhere, 
as specifically "illegitimate" rulers. This differentiated their entire posi- 
tion, both in its religious and its political aspects, from the old city- 
kingships. Quite regularly they were supporters of new emotional cults, 
especially of the cult of Dionysos, in contrast to the ritualistic cults of 
the nobility. As a rule they sought to preserve the external form of their 
commune's constitution, and thereby their claim to legality. At its down- 
fall, their regime usually left the patrician stratum much weakened, and 
therefore under compulsion to purchase the cooperation of the com- 
moners, which was necessary for the expulsion of the tyrant, with far- 
reaching concessions to the demos. In Athens, the middle-class demo- 
cracy of Cleisthenes followed the expulsion of the Peisistratids. In some 
places, it is true, a merchant plutocracy succeeded the tyrants. This 
early type of tyrannis built on economic class conflicts had the effect, at 
least on the Greek mainland, of facilitating a timocratic or democratic 
solution to the status struggles, of which it frequendy was the precursor. 
The successful or unsuccessful attempts to establish tyrannies in the' late 
Hellenic period, by contrast, were outgrowths of the expansionary policy 
of the demos and had their origin in the htilitary interests of that group, 
which will be discussed later. Victorious army kaders like Alcibiades 
and Lysander tried to establish tyrannies of this type.* 6 On the Greek 
mainland such attempts remained unsuccessful until the Hellenistic 
period, and the military empire-formations of the demos there disinte- 
grated again, for reasons to be discussed later [sec. v'y below]. In 
Sicily, by contrast, both the early expansionist maritime policy in the 
Tyrrhenian Sea and the later national defense against Carthage were led 
by tyrants who created an interlocal military monarchy supported by 
mercenary armies in addition to the burgher levies and resorting to the 
most ruthless measures of an oriental type, such as compulsory mass 
naturalization of mercenaries and resettlement of the population of sub- 
jugated cities. Rome, finally, where in the early republican period vari- 
ous developments that might have led to a tyrannis had failed, 
ultimately fell prey to a military monarchy, in the wake of the great 
conquests, for internal social and economic reasons which will, be dis- 
cussed separately. 



8. Illegitimate Rulership: The Medieval Siguoria 

In the Middle Ages, the city tyrannis remained krgely, if not en- 
tirely, confined to Italy. The Italian signoria, which Eduard Meyer has 
likened to die ancient tyrannis,™ does indeed have certain traits in 
coraraoi! wilb the Jaiter: ft, too, was predominantly the creation of one 



I 3 I 8 THE CITY (NON-LEGITIMATE DOMINATION) [ Cfe. XVI 

wealthy family in opposition to other members of the status group; it 
was the first political power in Western Europe which based its regime 
on a rational administration with (increasingly) appointed officials; it 
also in most cases retained certain forms of the traditional communal 
constitution. But beyond this, important differences haw to be noted. 
Firstly, while we do indeed find that frequently a signoria developed 
directly out of the status struggle, very often it first appeared only after 
the victory of the popolo, and in some instances only a considerable 
while later. Furthermore, while the signoria in most cases developed 
directly out of the legal offices of the popolo, the city tyrannis in Hel- 
lenic Antiquity normally represented only one of the intermediate 
phenomena between the patrician rule and timocracy or democracy. 

The formal development of the various Italian signorie took a 
number of different courses, as Ernst Salzer, in particular, has shown 
very clearly." One group of signorie, an entire series, was the direct 
product of revolts of the popolo and developed out of its new offices. 
The capitano del popolo, the podestd delta mercadanza, or also the 
podesta of the commune came to be elected by the popolo for increas- 
ingly longer periods or even for life. Such long-term supreme officials 
are found as early as the middle of the thirteenth century in Piacenza, 
Parma, Lodi, and Milan. By the end of that century, the rule of the 
Visconti in Milan was already hereditary in practice, as was that of the 
Scala in Verona and the Este in Modena. Parallel to the development 
toward tenure for life and initially de facto, later legal, inheritability of 
the office, went m expansion of the sphere of jurisdiction of the 
supreme official. Beginning as an "arbitral," 18 purely political penal 
power, it developed into a general commission (arhitrium generate) to 
issue all kinds of orders in competition with the council and the com- 
mune, and finally into a rulership (.dominium*) with the right to govern 
the city libera arbitrio, to fill the offices, and to issue decrees which had 
die power of laws. 

This assignment of powers had two different political sources which, 
however, frequently coincided in substance. One was the problem posed 
by p?rty governments — above all, the constant threat to the very survival 
of the state, and thereby also to the economic status quo and especially 
to land ownership, which emanated from the defeated party. The in- 
stallation of party captains with unlimited powers was made necessary 
especially by the existence of a nobility accustomed to war and by the 
constant fear of conspiracies. The second source is to be found in the 
external wars, the threat of subjugation by neighboring communes or 
princes. Wherever the latter factor predominated, it usually was the 
creation of a special military commander, the capitano delta guerra, who 



vs ] ■ The Plebeian City i 3 1 9 

was either a foreign prince or a condotiiere, that provided the source of 
the signoria, and not the party leadership of the capitano del popolo. 
Under such conditions, the voluntary subjection of a city under the 
rulership of a prince in order to secure his aid against external threats 
often was effected in a manner which narrowly limited the rights of 
the dominus. Within the city a power seeker normally could most easily 
gain support from the broad lower strata of craftsmen ordinarily ex- 
cluded from active participation in the administration. In part this was 
so because for these groups a chan^ did not signify any loss, while the 
presence of a princely court promised economic advantages, and in part 
because the masses everywhere are emotionally responsive to the display 
of personal power. As a ruie, the aspirants to the signoria therefore made 
use of the "parliaments" to effect the transfer of power. 2 " But occasion- 
ally, when threatened by political or economic opponents, the patrician 
families or the merchant class also used the instrument of a signoria, 
which initially was nowhere viewed as the permanent establishment of 
a monarchy. Cities such as Genoa repeatedly imposed very restrictive 
conditions upon powerful monarchs under whose dominium they com- 
mitted themselves, including above all limitations upon their military 
power and firmly fixed money payments, and at times they even dis- 
missed such "protectors." When the dominus was a foreign monarch 
this usually succeeded; thus Genoa at one time dismissed the king of 
France. But it rarely succeeded against a signore who had once taken 
up residence in the city. 



9. The Pacification of the Burghers and the 
Legitimation of the Signoria 

1 

It is noteworthy that in the course of time both the power of vhe 
burghers to resist and their inclination to do so declined. The signori 
based their regime on mercenary an :ie.; and increasingly also on con- 
nections with the legitimate authorities. In Italy, except for Venice and 
Genoa, the hereditary signoria constituted the form cf city government 
definitively legitimized by imperial and papal recognition after the sub- 
jection of Florence with the help of Spanish troops [in 1530]. The de- 
clining resistance of the burghers, however, must be explained by a 
number of separate factors. Here as everywhere, the very existence of a 
princely court created its own support in the form of growing strata in 
the nobility and the bourgeoisie with social and economic vested inter- 
ests in its survival. The increasing refinement of wants and the slowing 
down of economic expansion together with a growing vulnerability to 



I 3 2 O THE CITY (NON-LEGITIMATE DOMINATION) f Ck. XVI 

warlike disturbances of the higher bourgeois strata's economic interests; 
the general decline in political aspirations of the economically active 
groups, associated with increasing competition and growing economic 
and social stability, and the consequent exclusive devotion of these 
groups to gainful economic activity or the peaceful enjoyment of rentier 
incomes; and finally, the general policy of the princes who furthered 
both these developments to their own advantage — all these were re- 
sponsible for the rapid decline of interest in the political fate of the city. 
Both the large monarchies, like the French, and the stgnorie of single 
cities could everywhere count on the interest of the lower strata in the 
pacification of the city and in a regulation of economic conduct which 
professed to safeguard the "living" of the small burgher. The French 
cities were subjected to the rule of the crown with the help of these 
petit-bourgeois interests, and in Italy similar tendencies propped up the 
stgnorie. 

The most important element, however, was an essentially political 
development: the pacification of the citizenry through its preoccupation 
with economic concerns, its declining habituation to military service 
and, finally, through the deliberate disarming of the urban population 
bv the princes. It is true that this was not always their policy from the 
very beginning; in fact, some princes developed the first rational recruit- 
ment systems. But these soon developed into drafts of the poor only, if 
that was not their initial character; while this was in accord with the 
general type of patrimonial army formation, it was thoroughly foreign 
to the spirit of the republican burgher army. But the field had already - 
to a large extent been cleared for the princes by the transition to the use 
of mercenary armies and to the capitalistic method of employing entre- 
preneurs (^condotiien) to raise and lead the troops, changes necessitated 
by the increasing economic indispensabilrjy of the burghers and by the 
growing need for professional training in military matters. These factors 
had already been working toward the pacification and disarmament of 
the burghers during the time of the free communes. An additional 
element was provided by the personal and political connections of the 
city princes with the great dynasties, against whose power any uprising 
of the burghers would have had no chance of success. Ultimately, thus, 
it was the same series of factors, the general significance of which we 
have discussed before, which provided the signoria with the chance to 
develop into a hereditary patrimonial princeship: the increasing eco- 
nomic pieoccupatijn of the burghers, the military disqualification of trie 
educated strata of the bourgeoisie, and the rationalization of military 
technique in the direction of a professional army, combined with t},e 
development of status groups of noblemen, rentier?, and prebendaries 



iv } The Plebeian City i 3 2 1 

with vested economic or social interests in the existence of a princely 
court. Wherever these chances were utilized, the signoria thereby en- 
tered into the circle of legitimate powers. 

The policies of the signoria share one tendency, of preeminent in- 
terest here, with those of the ancient tyrannis: the tendency to break 
up the political and economic monopoly position of the city in relation 
to the countryside. As in Antiquity, it was very often the rural popula- 
tion with whose aid the aspirant to power compelled the transfer of the 
rule — for instance, in 1328 in Padua. M To its own economic advantage 
and for political reasons, the free urban citizenry had often destroyed 
the manorial system of the countryside after its victory over the patrici- 
ate, freeing the peasantry and furthering the free transfer of land to 
the highest bidder. It was under the rule of the ipofolo grasso that 
massive acquisitions by the burghers of landed property from the feudal 
lords took place, and that in Tuscany the manorial constitution based 
on compulsory labor services of the peasantry was replaced by the 
fvield-sharing] mezzadria tenancy, an institution peculiarly adapted to 
the relations between primarily urban landowners whose only ties to 
the countryside consist of a villegiaVura and their rural tenant farmers. 31 
Yet, the rural population — even the free peasant landowners — remained 
excluded from all participation in political power. As the mezzadria was 
tailored to the, economic interests of urban landowners, so the urban 
policy toward the countryside was adapted to the interests of the urban 
consumer and, after the victory of the guilds, also to those of the urban 
producers. The policy of the princes nowhere changed this immediately, 
and in some places never at all. The famous physiocraric policy of 
Grand Duke Leopold of, Tuscany in the eighteenth century was in- 
fluenced by certain natural-law concepts and was not, or at least not 
primarily, a policy of agrarian interests. 32 Nevertheless, the policy of the 
princes, which on the whole was directed to the balancing of interests 
and the avoidance of sharp collisions, was certainly no longer the policy 
of an urban citizenry using the countryside merely as a means towards 
its own ends. 

Often, and ultimately in the majority of cases, the dominion of the 
city princes encompassed several cities. They did not, however, create 
out of these hitherto independent urban territories unitary states in the 
modern sense. Quite to the contrary, the individual cities tied together 
under the rule of a single prince frequently continued to have both the 
right and the occasion to communicate with each other through am- 
bassadors. Their constitutions certainly were not -standardized, nor did 
■they become [subordinate] municipalities which fulfilled certain state 
Functions merely by virtue of a delegation of powers from the state. A 



1312 THE CITY (nON-LBGITIMATE DOMINATION) [ Gk. XVI 

development of this kind occurred only gradually, in conjunction with 
the similar transformation of the great modern patrimonial states. 
Representations of the Estates — such as were known in the Sicilian 
kingdom already in the Middle Ages, but also in other old patrimonial 
monarchies — were almost completely absent in the principalities which 
developed out of city territories. The important organizational innova- 
tions of the signorie are to be found in other developments, namely: 
0) in the appearance of princely officials employed for indefinite 
periods at the side of the communal officials elected for short tenures, 
and (2) in the development of collegiate central agencies, above all for 
financial and military functions. These constituted indeed important, 
steps toward the rationalization of administration. The establishment of 
a rational princely administration under the urban signoria was tech- 
nically aided by the fact that many communes had in their own financial 
and military interest already created a volume of statistical records 
unusual for that time, and that the art of account- and record-keeping 
had received its technical development in the urban banking houses. 
A more important influence in the indubitable rationalization of ad- 
ministration, however, probably stemmed from the example of Venice 
on the one band, and of the Sicilian kingdom on the other — an influ- 
ence which probably worked more through stimulation than by way of 
direct adoption. 



1 o . Urban Autonomy, Capitalism, and Patrimonial 
Bureaucracy: A Summary 

The circular path of the Italian cities from a stage in which they 
were component parts of patrimonial or feudal structures, through a 
period of independence obtained by revolution with a government of 
local notables and then of the craft guilds, followed by the signoria and 
finally again by a position as component parts of relatively rational 
patrimonial associations — this cycle has no exact counterpart in the 
Occident. In particular, there is no counterpart for the signoria; at best 
one could find a parallel for the immediately preceding stage, that of 
the capitaneus fopuli, in some of the most powerful burgomasters north 
of the Alps. In one respect, however, the circular type of development 
was universal: In the Carol ingian period, the cities were nothing — or 
almost nothing — but administrative districts, differentiated from other 
administrative units only by certain peculiarities of their status structure, 
and in the modern patrimonial state they were again very close to this 



iv } The Plebeian City i 3 2. 3 

position, distinguished only by certain corporate privileges. In the inter- 
mediate period, they were everywhere to some degree "communes" with 
autonomous political rights and an autonomous economic policy. 

The development in Antiquity was similar. Yet, neither modern 
capitalism nor the "state" as we know it developed on the hasis of the 
ancient city, whereas the medieval city, though not the only significant 
antecedent developmental Stage and certainly not itself the carrier of 
these developments, is inseparably linked as one of the crucial factors 
with the rise of both phenomena. Hence, in spite of all external simi- 
larities, we should be able to discern some very far-reaching differences 
between the ancient and the medieval city development. This problem 
we will turn to next. 

These differences will be most easily recognized if we juxtapose the 
city types of both periods in their most characteristic forms. Before we 
approach this comparison, however, we should stress that among the 
medieval cities themselves there were also very significant structural 
differences, which so far we have dealt with only en passant. But for 
the moment we shall only recapitulate the overall situation of the 
medieval cities at the time of their greatest independence, a period in 
which we may hope to find their specific traits most fully developed. 

At the apogee of urban autonomy the attainments of the medieval 
cities display an extraordinary variety of forms which can be summarized 
under the following headings. 



A. POLITICAL AUTONOMY 

The medieval urban commune gained political independence and, 
in some cases, conducted an expansionist foreign policy, maintaining 
a permanent military force, concluding alliances, conducting long wars, 
holding large land areas and occasionally other cities in complete sub- 
jection, and acquiring overseas colonies. With respect to overseas 
colonies, only two Italian maritime cities [Venice and Genoa] succeeded 
in the long run; domination over great land masses and international 
political importance was obtained for certain periods by some communes 
'in northern and central Italy and in Switzerland, and to a far lesser 
degree by the Flemish and some of the North-German Hansa cities, 
and by very few others. But the great majority of cities never exercised 
territorial rule beyond the immediate rural environment and a few 
small towns nearby; this holds for the cities of southern Italy and Sicily, 
for the Spanish cities but for a short, and for the French cities but for 
a longer intermezzo of territorial expansion, and from the very begin- 



I 3 2 4 THE CITY (NON-LEGITIMATE DOMINATION) [ Cfe. XVI 

riing for the English and German cities (with the exception of the 
North-German and Flemish cities already mentioned, some South- 
German and Swiss ones, and a number of western German cities dur- 
ing the short period of the [13th century] town leagues). It is true that 
many of these cities maintained a permanent force of town soldiers (in 
France until a very late period), or else, and this is the normal case, 
that they had a conscripted burgher militia which defended the walls 
and sometimes was strong enough to enforce the Landfrieden (territorial 
"peace") in confederation with other cities, to destroy the castles of 
robber barons and to intervene in the feuds of the country. But none 
of them sought to engage in international politics over long periods in 
the manner of the Italian and Hanseatic cities. 

Most of these cities sent reprensentatives either to the Estates of the 
realm or of their local territory, and not mf 1 ifquendy, because of their 
financial power, they acquired the decisive voice in these bodies even 
if they were assigned a formally subordinate position. The most im- 
portant example are the Commons of England, even though they con- 
stituted a representation not so much of urban communes as of local 
corporations of the various status groups. But many cities did not exer- 
cise even such rights (the details of the legal history would take us too 
far afield). On the Continent, the modern patrimonial bureaucratic 
state eventually deprived most of them of their political autonomy as 
well as of their military powers, except for police purposes. Only where, 
as in Germany, the patrimonial state developed in the form of rather 
small structures, did it have to permit the independent political survival 
of some of the city states. 

A special course of development is to be noted also in England, due 
there to the absence of a patrimonial bureaucracy. Under the tight 
organization of the central administration, the individual English cities 
had never developed separate and individual political ambitions be- 
cause they defended their interests in Parliament as a group. They had 
formed trade cartels, but not political town leagues as on the Continent. 
They constituted corporations of a privileged stratum of notables, and 
their good will was ftnanciallyiyndispcnsable to the state. During the 
Tudor rule, the crown had sought to destroy their privileges, but the 
collapse of the Stuarts put an end to this. From that time on they re- 
mained corporations with the right to elect parliamentary representa- 
tives, and both the -'Kingdom of Influence" and the noble cliques 
utilized the often ridiculously small and easily purchasable electoral 
colleges ["rotten boroughs"], which was all many of them represented, 
to obtain compliant parliamentary majorities. 



h ] The Plebeian City i 3 2 5 

B. AUTONOMOUS LAW CREATION 

Autonomous law creation by the city, and within it again by the 
[old] guilds and the [later] "crafts," was a right fully exercised by the 
politically independent Italian cities, and at times by the Spanish, 
English, and a considerable part of the French and' German cities al- 
though it was not always expressly granted to them by charter. To 
problems of urban landownership, market relations, and trade, the city 
courts, with burghers as lay judges CSchoffen'), applied a uniform law 
specific to all burghers of the given city. The law itself might be based 
on custom or autonomous legislation, or on imitation, adoption, or impo- 
sition in the founding charter of another city's legal system. City courts 
increasingly excluded from the trial procedure such irrational and magi- 
cal means of evidence as duels, ordeals, and clan oaths, in favor of 
rational procedures of presenting evidence. This development, however, 
should not be thought of as running a straight course: at times the ad- 
herence to a special trial procedure in the city courts signified the con- 
servation of older legal forms in the face of rational innovations by the 
royal courts, as in England (absence of the jury), or the preservation 
of medieval law against the penetration of Roman law, as on the Conti- 
nent. In the latter case the legal institutions adaptable to capitalism 
had their origin precisely in the urban law systems (it being in the cities 
that early capitalist interests had some autonomy), and not in the Ro- 
man (or Germanic) "law of the land" (L&ndreckt). 

The city governments, for their part, sought to establish the rule 
that the guilds and "crafts" could not legislate [for their own courts] 
without the magistrates' consent, or they at least tried to limit su< h 
legislation to the guilds' assigned area of jurisdiction. For all citL'S 
which had to reckon with a political or manorial city lord — and this 
means, for all outside of Italy — both the extent of urban autonomy and 
the distribution of legislative power iiefween the council and the craft 
guilds was forever unstable and a question of power. 

The developing patrimonial bureaucratic state everywhere increas- 
ingly curtailed the autonomy of the cities. In England the Tudors were 
the first systematically to assert the principle that the cities as well as 
the "crafts" were corpcrately organized state institutions for definite 
purposes, with rights which could not exceed the privileges outlined 
in the charter, and with legislative powers binding only citizens who 
were members of the corporation. Any offense against these restrictions 
was used as an opportunity to have the charters cashiered in a quo war- 
ranto action (a fate which London experienced as late as under 
James II). In this view, as we saw, the city was not a "territorial body" 



13^6 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

but a privileged association of the local status groups (standischer Ver- 

| hand), in the administration of which the Privy Council continuously 

j interfered. In France, the cities were in the course of the . sixteenth 

century deprived of all judicial powers, except for police matters, and 

for all financially important acts permission of the state authorities came 

to be required. In Central Europe, the autonomy of the cities under 

I the authority of the territorial princes was as a rule completely destroyed. 



C. AUTOCEPHALY 

Few cities other than those of Italy achieved full autocephaly: i.e., 
none but their own judicial and administrative agencies. Non-Italian 
cities often obtained it only for the lower [non-capital] jurisdiction, 
normally with the reservation of appeal to the royal or supreme terri- 
torial court. Wherever the passing of judgment was in the hands of lay 
judges (Sckoffen) taken from the citizenry, the identity of the judicial 
overlord was 2 matter primarily of fiscal interest, and the cities often 
did not see any need to appropriate or purchase the formal jurisdiction. 
What mattered to them was that the city be a separate judicial district, 
with lay judges chosen from their midst. At least for the lower jurisdic- 
tion, and partially also for the capital jurisdiction, this right was 
obtained in relatively early times. Independent election of the lay judges 
or co-optation by the officiating panel without interference from the 
lord was achieved by most cities. Also important was the attainment of 
the privilege that a burgher be responsible only to the court of his city. 

The development of the urban administrative agency, the Council, - 
we cannot investigate here. The existence of such a body, provided with 
Far-reaching administrative powers, was the identifying mark of every 
city commune in western and northern Europe at the height of the 
Middle Ages. The manner of its composition varied endlessly. It was 
determined to a great extent by the actual power position of the various 
groups: the patrician families (the owners of land rents and monetary 
wealth, the financiers and occasional merchants), the bourgeois mer- 
chants, often enrolled in the "crafts" (either long-distance traders or 
large retailers and putting-out entrepreneurs for industrial products), 
and, finally, the purely artisan "crafts" properly so called. The balance 
of economic power between the burghers and the political or manorial 
lord of the city, on the other hand, determined the degree to which 
the latter continued to participate in the nominations to the council, 
and thus to what extent the city remained partially heterocephalous. 
The di reedy relevant factor was the lord's need for money, for this 
made possible the purchase of his urban rights; the obverse of this, of 



tv ] The Plebeian City i 3 2 7 

course, was the financial strength of the cities. However, the financial 
needs of the city lords and the financial power of the city were not 
alone decisive [for their relative strength] if the city lords possessed 
folitkal means of power. In France the royal government — which under 
Philip Augustus [r. 1 180-1223] had still been allied with the cities — 
and to a small extent also other feudal lords obtained already in the 
thirteenth century through their mounting money requirements the 
right, in the form of portage contracts, to participate in the tilling of 
administrative positions, control rights over the conduct of office of the 
urban magistrates, especially in the field of fiscal administration, which 
was of particular interest to the king, and the right of confirming the 
elected consuls in their offices.* 8 By the fifteenth century the royal 
yrevdt presided over the burgher assembly. In the age of Richelieu and 
Louis XIV, finally, the offices of the city were completely in the hands 
of the royal intendant, and the financial troubles of the state led to the 
filling of both city and state offices by sale. 

The patrimonial-bureaucratic state transformed the administrative 
• agencies of the city into corporate representations tf the privileged status 
groups whose jurisdiction applied only to the circle of their corporate 
interests, but without significance for the functions of state administra- 
tion. The English state, which had to retain the autocephaly of the city 
corporations because they were electoral bodies for Parliament, simply 
by-passed the city when it wished to have local associations execute 
those functions which our municipalities fulfill nowadays and made 
the parish — to which not only the privileged corporation members, but 
all qualified inhabitants belonged — or some other.newly created associa- 
tion the executor of these tasks. Most of the time, however, the patri- 
monial bureaucracy simply transformed the urban magistrates into 
agencies of the sovereign alongside all others. 



D. TAXING AUTONOMY 

Next, we consider the problem of the city's taxation power over its 
burghers, arid its freedom from taxation and other charges by outside 
powers. The former they obtained to very varied extent; the control 
rights of the city lord were often preserved to some degree, although 
at times they were completely abolished. In England the cities never 
possessed full taxing autonomy and always needed the consent of the 
crown for all new taxes. Full freedom from rent (Zins) and tax obliga- 
tions toward the outside was rarely achieved. Cities not politically 
autonomous obtained this freedom only when they could farm the tax 
obligation, paying off the city lord either once and for all or, more 



13^8 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

frequently, through periodical lump sums, and could then take the 
collection of the royal taxes under their own management (ftrma hurgi 
in England). The elimination of obligations to the outside everywhere 
succeeded most completely with respect to personal duties deriving from 
the former personal subjection of burghers to judicial or manorial lords. 
While after its victory the typical patrimonial-bureaucratic state 
differentiated the city from the countryside for taxation purposes, seek- 
ing to bit production and consumption equally through a specifically 
urban tax, (he excise, it at the same time deprived the cities almost 
entirely of their autonomous taxing power. In England the imposition 
of taxes on the cities as corporate bodies had little significance, since 
most of the new administrative tasks fell on other types of communities. 
In France the crown appropriated one half of the urban excise (octroi) 
from Mazarin's ministership on, all city financial operations and the 
internal taxation having been brought under state control already earlier- 
In Central Europe the urban agencies were in this respect, too, trans- 
formed into almost pure state organs. 



E. MARKET RIGHTS AND AUTONOMOUS URBAN ECONOMIC POLICY 

The right to hold markets; autonomous trade and craft Regulation 
and monopolistic powers of exclusion. — The market was part of every 
medieval city, and the supervision over the market had everywhere in 
considerable measure been taken out of the hands of t"he city lord by 
the council. In later periods, the regulation of trade and production was 
concentrated either in the hands of the municipal authorities or in those 
of the craft association's, depending upon the local power structure; the 
city lord continued to be largely excluded. 

The urban policy of economic regulation comprised [a wide range 
of activities and motivations]. 3 * Quality control over production was 
exercised partly in the interest of enhancing the reputation— and thus 
the export interests — of the trades, and partly in the interest of the 
urban consumers. Price control was basically exercised in the interest 
of the consumers. Another goal was the protection of the "living" of 
the small burghers, pursued by means of restrictions imposed upon the 
number of apprentices and journeymen, and at times also upon the 
number of masters; with the narrowing of subsistence opportunities, 
the monopolization of master positions for native sons, especially for 
masters' sons, intensified. Wherever the craft guilds directly controlled 
economic regulation, they attempted to counteract the development of 
capitalistic dependency on outsiders and large entrepreneurs by pro- 
hibiting the putting-out system, imposing controls on capital loans, 



iv } The Plebeian City r 3 2 9 

regulating -and organizing the supply of raw materials and, at times, 
also the sale of the finished products. Above all else, however, the city 
sought to prevent competition from the countryside under its domina- 
tion; hence it sought (O suppress the establishment of rural industrial 
enterprises and to force the peasantry (in the interest of the urban 
producers) to purchase its requirements in the city and (in the interest 
of the urban consumers) to sell its output on the market of the city and 
only there. Also in the interest of the Consumers (and occasionally in 
that of industrial users of raw materials), it tried to prevent "forestall- 
ing" of wares outside the urban market. Finally, in the interest of its 
merchant population, the city sought to impose "staple" and brokerage 
monopolies for goods passing through its own territory, while at the 
same time trying to gain free-trade privileges abroad. 

These core points of the economic policy of the so-called "city econ- 
omy" (Stadtwirtschafts-politik), varying according to the manifold com- 
promise possibilities of conflicting interests, can in their principal 
features be found almost everywhere. The direction taken by the policy 
of any particular city was determined not only by the internal power 
relationship of the interested parties, but also by the range of economic 
opportunities open to them. The expansion of this range in the first 
period of setdement initiated policies directed toward a widening of 
the market; its constriction after the end of the Middle Ages was ac- 
companied by tendencies toward monopolization. But beyond these 
generalities each city had interests of its own which collided with those 
of competitors; especially among the long-distance trade cities of the 
South, a life-and-death struggle prevailed. - 

The patrimonial-bureaucratic state did not at all intend a basic break 
with the policies of the "city economy" stage of development after the 
subjugation of the cities. Quite to the contrary: In the interest of its 
revenues, the state was as much concerned with the economic prosperity 
of the cities and their industries and with the maintenance of popula- 
tion size through the preservation of urban "livings" as it was, in the 
interest of a mercantilist trade policy, with the stimulation of foreign 
trade; the measures for the latter it could copy, at least in part, from 
the urban long-distance trade policies. The patrimonial state sought to 
balance the conflicting interests of the cities and other groups, and in 
particular attempted to reconcile the petit-bourgeois approach of pro- 
tecting the "living" with policies friendly to capitalist stirrings. Almost 
up to the eve of the French Revolution, it violated the principles of the 
traditional economic policy only where the local monopolies and privi- 
leges of the burghers obstructed its own, ever more capitalistically 
oriented, policy of monopolies and privileges. It is quite true that in 



13 3° ^HB OTTY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

individual instances even this could lead to a very ( drastic disruption 
of the burgfeters' economic privileges, but only in exceptional local cases 
did it indicate a deliberate rupture with the traditional approach. Never- 
theless, the autonomy of urban economic policy and regulation was lost, 
and indirectly this could, of course, have considerable significance. 

Yet moee decisive was the inability of the city to bring military- 
political means of power into the service of its interests, such as the 
patriteonial-bureaucratic prince could apply. Even the new economic 
Opportunities opened by the policies of the patrimonial state could only 
rarely be exploited by the cities as public bodies, as they could be — 
and were — exploited by the princes themselves. It lies in the nature of 
the case that these opportunities were open only to individuals, above 
all to socially privileged individuals; thus we find that in the typical, 
monopolistically privileged, domestic and overseas undertakings of Eng- 
lish and French patrimonial ism, relatively many members of the landed 
nobility and of the higher officialdom participated beside the kings 
themselves, but relatively very few burgher elements. Occasionally, it 
is true, certain cities — such as Fiankfurt— participated in spite of such 
obstacles for city account in speculative foreign undertakings, at times 
«i a very large scale. But in most ~ases this turned out to be very much 
to their disadvantage, since a sing;? failure, was bound to hit them much 
more severely than it would a large political unit. 

The economic decline of numerous cities, especially after the six- 
teenth century, can only in part be explained by a shift in the trade 
routes (it also occurred at precisely the same time in England), and 
also only in part by the establishment of large home industries based 
on non-urban labor. To the greatest part it must be explained by other, 
more general conditions. Foremost among these is the fact that the 
traditional forms of enterprise integrated in the "city economy" no 
longer were the ones which could generate the really great profits, and, 
further, that both the politically oriented and the commercial and in- 
dustrial capitalist undertakings simply no longer found a useful support 
in policies of the "city economy" tvpe, just as had happened earlier in 
the case of feudal military technology. Even where these undertakings 
were formally located in the city, they could no longer be sustained by 
an entrepreneurdom tied locally to the individual burgher association. 
The new capitalist undertakings settled in the new locations suitable 
for them, and for help in the defense of his interests — insofar as he 
required any at all — the entrepreneur now appealed to powers other 
than a local burgher association. Just as in England the Dissenters, who 
played so important a role in the capitalistic development, remained out- 
side of the ruling city corporation in consequence of the Test Acts, 15 



tv ] - The Plebeian City i 3 3 1 

so the great modern commercial and industrial cities of England arose 
entirely outside of the precincts — and thus of the monopoly-power 
spheres — of the old privileged corporations. It is for this reason that 
they frequently displayed a completely archaic judicial structure: The 
old manorial courts, the "court baron" and "court leet," existed in Liver- 
pool [into the seventeenth century] and in Manchester up until the 
modern reform, the manorial lords having merely been bought out as 
lords of the court. 38 



F. ATTITUDE TOWARD NON-CITIZEN STRATA 

The specific political and economic characteristics of the medieval 
city also determined its attitude to non-citizen strata, an attitude which 
shows very different features in different cities. They all shared, to begin 
with a common element, the economic contrast to the specifically non- 
urban political and feudal-manorial structures, which can be summarized 
in' the antithesis: market versus oikos. This antithesis should not be 
thought of simply as an economic "struggle" between political or mano- 
rial lords and the city. This did occur, of course, wherever the city, in 
the interest of expanding its power, admitted politically or manorially 
dependent persons against the wish of their masters inside the walls or, 
even worse, as non-resident members into the burgher association. The 
latter expedient was soon made impossible, at least in the Nordic cities, 
by princely leagues or royal prohibition. But the economic development 
of the city as such was nowhere contested as a matter of principle; the 
objections arose rather against the city's -political independence, and in 
specific cases — which -were not rare — over economic issues because 
particular economic interests of the feudal nobility clashed with the 
commercial policies and monopolistic tendencies of the cities. The feudal 
military interests, the kings in the forefront, of course viewed with the 
highest misgivings the development of autonomous fortresses within their 
political" territory. The German kings in general, except for very short 
periods, never abandoned such misgivings. The French and English 
kings, by contrast, were at times quite friendly toward the cities, partly 
for political reasons associated with their struggle against the barons, 
partly because of the importance of urban financial power. 

Neither did the tendency of the urban market economy to dissolve 
manorial and, indirectly, feudal structures — which indeed asserted it- 
self with varying degrees of success — necessarily^ assume the forrtfof a 
"struggle" of the cities against other interests. Quite to the contrary: 
over broad areas there were strong common interests. Both political and 
manorial lords were extremely interested in the monetary revenues 



I 3 3 2 THE CITY (nON-LECITIMATE DOMINATION) [ Ch, XVI 

which they might be able to obtain from their peasant subjects, and it 
was the city which provided the latter with a local market for their 
products and hence with the possibility of paying their dues in money 
rather than in services or products,- or else the city provided the lord 
with the opportunity to turn his in-kind income into money instead of 
consuming it himself, through sale either on the local market or abroad 
via the increasingly capitalistic long-distance trade. The political and 
manorial lords made energetic use of these possibilities, either by de- 
manding money rents from their peasants, or by utilizing the market- 
stimulated self-interest of the peasants in higher production through the^ 
creation of larger farming units which in turn could deliver a higher 
share of the output as marketable rents-in-kind. Also, the more strongly 
local and long-distance trade developed, the more money revenues 
could the feudal nobility derive from the exceedingly large variety of 
tributes levied on this traffic; western Germany provides a good example 
even in the Middle Ages. 37 

For all these reasons, the foundation of cities was from the viewpoint 
of the founders primarily a business undertaking, the creation of op- 
portunities for money revenues. Economic interests of this kind .moti- 
vated the innumerable "city"-foundations by the nobility in the East, 
especially in Poland, even at the time of the Jewish persecutions — 
often fail-starts whose citizenry, frequently numbering only a few hun- 
dreds, at times was still in the nineteenth century up to ninety per 
cent Jewish. This specifically medieval and North European type of 
city foundation as a "business" undertaking constitutes, as we shall see, 
a direct antithesis to the military fortress-town foundations represented 
by the ancient polis. The conversion of almost all personal and material 
claims of the manorial and judicial lords into rent claims, and the 
resulting (m part fully de jure, in part merely de facto, yet far-reaching) 
economic freedom of the peasantry — which did not come forth wher- 
ever the city development was weak — was the consequence of the fact 
that the lordly political and manorial revenues in the territories of in- 
tensive city development could increasingly be fed from the market 
sale of peasant products or of peasant deliveries in kind, and beyond 
this from sources of the market economy, all of which replaced the 
direct exploitation of personal service obligations of the subjects or the 
allocation of delivery obligations for household wants in the manner 
of the ancient oikos economy. Both the lord and, to a lesser degree, his 
dependents now increasingly supplied their requirements through the 
money economy. Another important element in this transformation of 
the landlord-peasant relationship was the buying out of the rural no- 
bility by the urban burghers, who then converted the estates-to rational 
forms of economic operation. This process, however, met with barriers 



iv ] _ The Plebeian City i 3 3 3 

wherever the feudal associations required eligibility to hold a fief 
CLehensfahtgkeit') for the ownership of "noble" land, a condition which 
the urban patriciate could satisfy almost nowhere north of the Alps. 

The existence of a "money economy" itself, at any rate, did not 
create a clash of economic interests between the political or manorial 
lords and the cities; to some extent, as we have seen, it even created a 
community of interests. A purely economic collision arose only where 
the lords, in order to increase their incomes, sought to enter non- 
agricultural market production on their own, an attempt which naturally 
could be made only where a suitable labor force was available. Wher- 
ever this occurred, the struggle of the cities against such industrial 
production activities of the rural lords did indeed break out, frequendy 
flaring up with particular intensity only during the patrimonial-bureau- 
cratic period of modern history. In the Middle Ages, by contrast, this 
was hardly an important issue, and the factual dissolution of the old 
manorial association and of peasant bondage frequendy proceeded with- 
out any struggle at all as the consequence of the advance of the money 
economy. This was the case in England. Elsewhere, to be sure, the cities 
direcdy and deliberately furthered this development; this as we saw, is 
what happened in the Florentine power sphere. 

The patrimonial-bureaucratic state sought to harmonize the con- 
trasting interests of the nobility and the cities. However, since it wanted 
to use the nobility as officers and civil servants, it prohibited the pur- 
chase of noble estates by non-nobles, 'including the urban citizenry. 



G. THE CITY AND THE CHURCH 

On this last issue the ecclesiastic, and especially the monastic seign- 
euries were during the Middle Ages much' more on a collision course 
with the cities than the secular lords. In general the clerics were, beside 
the Jews, the major specifically alien body within the city, especially 
after the separation of state and church in the Investiture Struggle. For 
their estates, as church property, they claimed far-reaching freedom 
from the public burdens and also "immunity," i.e., exemption from the 
spheres of jurisdiction of all officials, including the urban magistrates. 
As an Estate, the clerics themselves did not share in the military and 
other personal obligations of the burghers. At the same time, these 
burden-free properties, and thereby also the number of persons exempted 
from the jurisdiction of the urban authorities, continuously increased 
through the gifts of pious burghers. Moreover, in their lay brothers the 
monasteries had a labor force free of the obligation to support families, 
which therefore could easily underbid any non-monastic competition if, 
as was quite frequent, they were used in commercial industrial produc- 



1 3 3 4 ™ £ city (non-legitimatf. domination) [ Cfe. XVI 

tion for the cloister's account. Also, the cloisters and religious founda- 
tions, like the waqf of medieval Islam, had on a very considerable scale 
brought into their possession the permanent sources of money rent in 
the Middle Ages: market halls, stalls of all kinds, shambles, mills and 
the like, which thereby were not only withdrawn from the urban tax 
roll but also exempted from the economic regulation of the city; on top 
of this, they frequently even claimed monopoly rights for these instal- 
lations. Even in military respects the immunity of the walled cloisters 
could be dangerous to the city. Finally, the ecclesiastic court, enjoined to 
uphold the. prohibition of usury, was everywhere a threat to bourgeois 
enterprise. Against the accumulation *of landed property in mortmain 
the citizenry sought to protect itself through prohibitions, just as the 
princes and the nobility did through the "amortization laws." 

On the other hand, however, a part of the urban trades found im- 
portant profit opportunities in the religious festivals, especially if the 
city had a sanctuary which was the goal of pilgrimages and wh^re 
indulgences wt_re granted. And the religious endowments, insofar as 
they were open to the burghers, provided places of maintenance for 
the aged and for spinster daughters. For this reason the relations be- 
tween the clergy and monasteries and the citizenry were by the end of 
the Middle Ages by no means so completely unfriendly, in spite of all 
collisions, that this element alone would suffice to provide an "economic 
explanation" of the Reformation. The ecclesiastic and monastic institu- 
tions were in fact not At all as inviolable for the city commune as the 
Canon Law would have had it. It has been pointed out quite correctly 
that in Germany the religious endowments and monasteries had lost 
their most interested . protector against the laity when the power of the 
kings atrophied after the Investiture Struggle, and that the avoverie, 3 * 
which they had thrown off, was very easily revived (even if in somewhat 
changed form) if they attempted to engage strongly in economic ac- 
tivities. In many cases the city council managed to subject them to a 
tutelary powet very similar to that of the old avoue by pressuring them 
under the most diverse pretexts and titles to accept "curators" and "at- 
torneys," who then conducted the administration of the ecclesiastic 
properties in accordance with the interests of the burghers. 

The position relative to the burgher association of the clerics as a 
status group varied greatly. In some cases the clergy simply remained 
outside the city corporation, but even where this was not the case, it 
formed an uncomfortable and unassimilable alien body with its in- 
eradicable status privileges. Within its territories the Reformation put 
an end to this state of things, but the cities, which shortly after were 
subjugated by the patrimonial-bureaucratic state, were no-longer in a 
position to derive a benefit from this solution. 



iv ] The Plebeian City i 335 

In this Jast respect the development in Antiquity had' taken an 
entirely different course. The further back we go in time, the more the 
economic position of the temples resembles that of the churches, and 
especially of the monasteries, in the early Middle Ages, the peculiarities 
of which could be observed with particular clarity id the^ Venetian 
colonies fcf. above, sec. m:z\. But the direction of the further develop- 
ment was not, as in the Middle Ages, towards an increasing separation 
of state and church and a growing independence of the ecclesiastic 
dominions; instead, it took precisely the opposite course. The urban 
patrician families appropriated the priestly positions as sources of fee 
revenues and power, and the rule of the demos turned them altogether-!* 
into state offices, transforming them into prebends which ordinarily 
were sold at auction. Democracy thus destroyed the political influence 
of the priests and transferred the economic administration of the sanc- 
tuaries to the commune. The great temples of Apollo at Delphi and of 
Athena at Athens were the treasure houses of the Hellenic state and 
deposit banks for the slaves;** some of them also remained large land- 
owners. But an economic competition of the temples with the bourgeois 
crafts did not appear in the ancient cities. A secularization of the sanc- 
tuaries' holdings did not and could not occur in the ancient world, but 
in substance (if not always in form) the "secularization" of the trades 
that once had been concentrated in the temples was carried out in- 
comparably more radically in Antiquity than in the Middle Ages. The 
absence of monasteries, and of an autonomous interlocal church organi- 
zation in general, was the essential reason for this difference. 

Conflicts of the urban citizenry with the seigneurial powers were 
as widespread in Antiquity as they were in the Middle Ages and at the 
beginning of the modern period. The ancient city, too, had a peasant 
policy and an agrarian policy which destroyed feudalism. But the 
[spatial] dimensions of these policies were so much larger in Antiquity, 
and their bearing on the internal development of the cities so hetero- 
geneous as compared to the Middle Ages, that here the difference be- 
tween the two periods becomes very clear. This difference we shall now 
have to discuss in the general context.-. . 



■■.."■: ■ NOTES 

1 . In Brun's reform, the urban nobility and the upper "crafts" were united 
in the corporation of the "Constabulary" (JKonstafteY), which in case of war pro- 
vided the mounted force. The Konstaffel had 1 3 representatives on the council, 
as had the 1 3 minor "crafts" of the small artisans. Cf. A. Largiader, Geschichte 
von Stadt und Landschaft Ziiiich (2 yoki; Zurich: Rentsch 1945), I, 1331*. 

%. Paratid: the "paraders;" a synonym for arti, the "crafts," perhaps deriving 



I 3 3 *> THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

from the practice of guild processions. Cf. Dizionario Enciclopedico lUtliano, DC 
(1958X40. 

3. "They [i.e., die resolutions of the popolo] should nullify all statutes and 
should always be considered last." From a Brescia statute instructing die podesti, 
ca. 1250; "Staturi Bresciani del secolo XIII," in Historiae Patriae Monumenta, 
XVI 2 (Torino, 1876), ij84 e8 . 

4. Mercanzia was the term used in Florence, domus mercatontm or its Ital- 
ian equivalent, casa dei mercantt, in Verona for the "merchants court". Cf. A. 
Doren, ItaUenhche Wirtschaftsgeschichte (Jena; G. Fischer, 1934), 4i2rT. 

5. The description seems to be based on the captaincy of Ghiberto di Gente 
in Parma, 1253. Cf. Emst Salzer, Vber die AnfOnge der Signorie in Ober- 
itahen ("Historische Studien," vol. 14; Berlin: Ebering, 1900), 150-157. 

6. The aompt were the dependent artisans of the Florentine crafts in gen- 
eral, and more narrowly the unskilled laborers of the Arte della Lana, the guild 
of the woolens trades. In the uprising of July, 1378 the lower artisan strata ob- 
tained the formation o f three new arti to represent their interests: two for the 
skilled laborers of the woolens industry and some other trades, and one for the 
ciompi prop-:. The new guilds were to be given a one-third share in the govern- 
ment, but as that 'long hot summer" continued with further unrest, the new guilds 
of the skilled workers joined with the entrepreneurial guilds to crush the ciompi 
after a second uprising one month later; their arte was abolished and the men re- 
incorporated into the Lana. The other two new guilds survived, with a share in the 
city regime, until 1 384 when they, too, were abolished and the members were forced 
to rejoin their original associations. For an early description of this "first proletar- 
ian revolution," see Machiavelli's Florentine Histories, bk. Ill; cf, also A. Doren, 
Das Florentiner Zunftwesen votn 14. bis zum 16. Jahrhundert (Stuttgart: Cotta, 
1908), 221-236, and for the events culminating in the revolt, Gene A. Brucker, 
Florentine Politics and Society 1343-1378 (Princeton: Princeton University 

. Press, 1962), chs. VII-VIII. 

7. Conte Romolo Broglio d'Ajano, "Lotte sociali a Perugia nel secolo XIV," 
Vierteljahrschrift fur Social- vnd Wirtschaftsgeschichte, VIII (1910), 337-349- 
This case p. 334, the power seizure by the arti minori in 1 378, p. 347. , 

8. Broglio d'Ajano, op. «(., 34of. The dmatori were the shearers of cloth. 

9. Salzer, Vber die Anfdnge der Signorie, op. tit., 97, fn. 3. 

10. Eduard Meyer, Kleine Schriften (first ed.; Halle: Niemeyer, 1910), I, 
373. Both the tribunes and the aediles were officials of the plebs, in contrast to 
the "curule" magistrates — the consuls and praetors — who were officials of the en- 
tire community. 

11. The potestas sacrosancta of the tribune is contrasted to the potestas Ugi- 
tima of the communal magistrate by Mommsen, Homisches Staatsrecht, II (2nd 
ed., 1877), 27$f; at least in name, religion provided the tribune with a surrogate 
for the inviolability based on law of the "legitimate" magistrates. The actual sur- 
rogate, of course, was tbe violent self-help of the plebeians. 

12. Ausficium imperiumque, or the "authority to conduct, as the represent- 
ative cf the community, the business of tbe latter with the gods and with man- 
kind," were the two aspects of fuU powers of communal office according to 
Mommsen. As representatives of only part of this community, the plebeian trib- 
unes had only part of these powers. Cf. Mommsen, Romisches Staatsrecht, I, 73; 
II, 269ft"., 2 7 2 - 

13. I.e., from the latter part of the second century b.c. on. Tiberius Sem- 
pronius Gracchus was plebeian tribune in 133 b.c, and his brother Gaius in 
123 b.c. For Weber's reading of the Gracchian period, see GAzSW, 2381!., 253. 



w ] _ The Plebeian City '337 

14. Augustus and later princiyes assumed the tribunitian powers (although 
not the tribunate itself) for the entire length of their reign; other offices of the 
republican period, such as the consulship, they held only intermittently and for 
short periods. Cf, Mommsen, Romisckes Staatsrecht, II, 84 and fn, 4. 

15. Second half of the eighth century b.c. The war ended with the Spartan 
conquest of the Messenian plain, which to the largest part was turned into Helotic 
land! 

16. According to Plutarch (Lycurgvs, ch. 28), the ephors each year declared 
war upon the Helots "so that their being murdered [by the krypteia — see the next 
note] should not violate sacred law;" the story is now generally thought to be 
apocryphal. On the respective status of the Helots, Spartan state slaves assigned 
to work the land of individual warriors, and the Perioeci, political subjects with 
a certain amount of autonomy, cf. Ehrenberg, The Greek State, 29, 36L 

17. Plutarch (he. at.") relates that the ephors periodically sent into the 
countryside armed groups of the most agile youths who would hide in the day- 
time and roam the roads at night, killing any Helots they met; this was known as 
the kryyteia (secret service). This story was at one time interpreted as referring 
to a special police force for the suppression of the Helots, but nowadays seems to 
be generally discounted; the kryfteia, which other ancient sources also mention, 
is now thought to have been a special hardening and initiation period in the 
education of Spartan youth — see art. "Krypteia' in Pauly-Wissowa, RE, XI 
(1922), cols 2031-32. Weber's identification cf the institution with a spying 
system" perhaps derives from the misreading of a passage in Eduard Meyer, 
Geschichte des Altertums (Stuttgart: Corta, ^93), II, 563 (III, 518 in the post- 
war 3rd edition, Basel: Schwabe, 1954), where the suggestive name is mentioned 
almost in the same breath with a comparison of Venice and Sparta for their 
g^nerai police state qualities, 

18. Thucydides, History of the Pclopotmesiun War, bk. I, ch. 6. 

19. Weber here takes sides in a dispute of his day, connected with the prob- 
lem of the Lycurgan constitution of Sparta, about the early or late, legitimate or 
revolutionary origin of the ephorate. In particular, the entire section seems to he 
a point by point argument with Szanto's art. "Ephoroi" in Pauly-Wissowa, RE, V 
(1905), cols. 2860-64, an d against the position taken by Eduard Meyer ir 
'7.ykurgos von Starts," Forschungen tut alien Geschichte (Halle: Niemeyt 

1 892), I, 244-261 . A simitar cmphasi? on the revolutionary (but not on tha alto- 
gether rationally instituted) nature of the historical ephorate, in part backed wL* 
the same arguments, is defended by Victor Meyer, "Spartiaten unJ Lakeda. 
monier." Hermes. LIX (1924) Bjff (now reprinted in Polis wnrt Impertum, 
2uiich: Artemis. : j^~"' and id., Neugriinder des Staates (Munchem Beet:, 
1925), 44ft. 

20. I.e., to the rural and urban territorial districts, the Attic demot. Ehren- 
berg calls them "urban 2nd country boroughs" (The Greek State, 31). 

21. On the difference between fsephhmata and nomoi, and on the rol«.' jf 
the nomothettd, cf. Ehrenberg, The Greek State, 5&f. and the bibliography, 250; 
for the heliaia, cf. ibid., 72. 

22. On the relationship between the Athenian" Council of Five Hundred 
(JbouW) and the Assembly (ekklesia), cf. A.H.M. Jones, Athenian Democracy, 
105-122. A probtyuleuma or "pre-consultation" in "he bottle was required in most 
cases before a matter could be decided in the Ecclesia. 

23. For a brief analysis of the Greek tyranms, see now A. Andrewes, The 
Greek Tyrants (New York: Harper Torchbooks, 1963). 

24. Charondas of Katane (Catania) on Sicily, of uncertain date, seventh or 



i 3 3 ^ * :raB c£rr Cnon-legitimatb domination) [ Ck. XVI 

sixth century b.c; His codification for Katane was widely used in later city 
foundations. Solon of Athens, ca. 638-559 B.C.; on his reforms and their tack- 
ground, especially the economic aspects, cf. A. French, The Growth, of the 
Athenian Economy (London: Routledge & Kegan Paul, 1964), 10-29; also 
Andrewes, op. cit, ch. VII. 

25. The opposing commanders of the Athenian and Spartan armies during 
the final phase of the Peloponnesian war, which ended with Lysander's victory 
at Aigospotamoi (405 b.c.) and his seizure of Athens (404 B.C.). Alcibfades, 
after a checkered career alternately in Athens and in the service of her enemies 
had himself crea id commander with unlimited powers (strategos autokrator') in 
407 b.c, but wi'. deposed and exiled in the same year after losing a battle to 
Lysander. The If :ter, militarily more successful, used his position as Spartan sea 
commander (mot rrchos') to build a personal power base in the conquered cities, 
but ultimately failed to translate this into permanent rule in his home state where 
he was deposed in 403 B.C. 

26. Eduard Meyer, Geschichte des Altertums, II, 613 (in the postwar re-issue-. 
Ill, 566 fn. r). 

27. Salzer, Die Anfdnge der Signorie, op. cit., passim. The four main offices 
serving as springboards for the establishment of a signoria — those of the pCdesta 
of the commune, the captain of the popolo, the closely related podestd of the 
merchant court, and the military commander (capitano della guerra) — are taken 
up one by one ibid., 2.6ff. 

28. I.e., a judicial power unrestricted by the city statutes and not requiring 
the collaboration of the regular authorities normally needed (sine iltis de curia et 
collegic), which, however, was limited to certain types of incidents, usually 
political .ones, such as a rebellion. Cf. SaJzer, op. cit., 76 (for the podesta) and 
171 (for the capitano del popolo). 

29. The parlamentum, contio, or arengum was the general assembly of the 
citizenry (direct democracy), not — as the name might suggest — a "city parlia- 
ment" of the modern type- The counterpart of the latter would be the "repre- 
sentative" assembly of the late medieval city council. 

30. Submission of Padua to Cangrande della Scala, signore of Verona. This 
surrender, after a struggle of almost two decades, was effected against the 
resistant parries within the city by Marsilio de Carrara, h«d of the Padovan 
"signorial' family, with the help of the peasants from the contado. Cf. Robert 
Dtav'idsohn, "Beitiage ?ur Geschichte des Reiches und Oberitaliens," Mitteilungen 
dei Instuuts fur osterreichische Geschichtsforschung, XXXVII (i9t7), 402; now 
afso . J, K. Hyde, Padua in the Age of Dante (Manchester University Press, 
;b66), 28c; asid passim. 

' ■ S 31., Qn the mezzadriu tenure in Tuscany, 3 metayage (crop-sharing) form of 
; land holding, ct. Robert Davtdsohn, Geschichte von Florenz, I (Berlin: Mitder, 
1896), 777$. 

32. The Habsburg succeawr of the Medici, Grand Duke Leopold I of Tus- 
cany (r- 1765-1790). the later Emperor Leopold 11 (r. 1790-1792). Like his 
brother, Emperor Joseph II, he was mucli influenced by physiocratic doctrines, in 
the spirit of which he effected major reforms in the Grand Duchy. Cf. Hermann 
Biichi, Vinanzen und Finanzpclitik Toskanas im Ze: teller der Atfktarvng (1737- 
1790) im Mwm der WirtschaftspolitA ("Historische Studien," vol. 124; Ber- 
lin: Ebering. 1915). 

33. Rights of portage, or '-^dominion, which were contracted voluntarily or 
under duress with many c:r«?s. monasteries or small city lords, inexchange for 
promises of p/otection or abatement of tax claims. The financial weakness of the 



tv } _ The Plebeian City i 3 3 9 

French crown became, in combination with military strength, an instnimestal 
factor for obtaining such rights when translated into onerous tax burdens on 
which the cities defaulted, thus providing the king with a pretext for Muffing-, 
control claims. Already Philip II Augustus during the long wars with the Ange- 
vins, but especially Louis IX (r. 1 226-1 270) greatly extended the royal domain 
through pariage contracts. Cf. Robert Holtzmann, Fnmzdstgc&e Vaftusangsge- 
schichte (Munich: Oldenbourg, 19 10), aSoff.; art, "Coseigneurie , * in Grande 
"Encyclopi&ie, XII, 1 1 lof . 

34. For a less compressed summary of these policies, cf . A. B. Hibbert, "The 
Economic Policies of Towns," in Cambridge Economic History of Europe, HI 
(Cambridge, 1963), 157-129. lv 

35. T^e "Corporation Act" of 1661 and the Test Act" of 1672 required all 
members of corporations and other officials, within a stated period after election 
or appointment, to receive Communion according to the rites of the Church of 
England and to sign a declaration against transubttamiatjon. 

36. Liverpool had purchased all remaining manorial rights in 1672, and 
shortly thereafter began a vigorous economic development^ whereas the Man- 
chester "court leet"— -the governing body of the town — remained the prop erty of 
a baronial family until 184;, when the municipality bought itself off tor the tidy 
sum of £200,000. Cf. J. Hatschek, Englische Verfassungigesckichte, 70 of.; arts. 

."Liverpool" and "Manchester" in Encyclopedia Britannica. 

37. E.g,, the fantastic Rhine river tolls of the thirteenth century: the furiosi* 
Teutonicoruminmnia. 

38. In early medieval Europe, the Vogt or awue (i.e., "advocate") was the 
secular legal officer of a church or monastery, appointed by the crown and re- 
warded with a benefice out of the church patrimony. Outside of the towns, the 
office was, with the waning of royal power, increasingly ap propriated by the 
nobility, both functions ana rewards substantially expanding at the expense of 
the churches. On the development of the avoutrie, tee Marc Bloch, Feudal Soci- 
ety, trans. L. A. Manyon (Chicago: University of Chicago Press, 1961), 4048. 

39. On the banking role of the Greek temples, cf. above, ch. XV;io»; see 
also F. M. Heichelheim, Am Ancient Economic History, II, 70-74; Ehrenberg, 
The Greek. State, Brf. and the bibliography 252. 



/ 



Ancient and Medieval Democracy * 



The special position of the medieval city in the history of political 
development does not, in the last analysis, derive fiom the essentially 
economic contrasts between the urban burghers 3tid the non-urban 
strata and their economic life styles. The crucial element was, rather, 
the general position of the city within the total framework of the 



13 4° THE < aTY (non-legitimate domination) [ Ch. XVI 

medieval political and status associations. It is this aspect which differ- 
entiates the typical medieval city most sharply from the ancient city, 
but it is also with respect to this criterion that we can distinguish within 
the medieval period two types, albeit with somewhat fluid transitional 
forms, which nevertheless in their purest examples are very distincrfy 
different: A southern European type, found especially in Italy and 
southern France, which in spite of all differences is much closet to the 
ancient polis than the other type, that of northern France, Germany, 
and England, which again in spite of a great variety of forms represents 
a unity with respect to the criterion now under consideration. We there- 
fore have once again to rum to a comparison of the medieval city type 
with that of Antiquity and, wherever suitable, with those of other 
periods, in order tc get a coherent picture of the basic causes for these 
differences. 

The knightly patriciate of the southern European cities owned 
castles and estates outside the cities just as did that of Antiquity, for 
which we have several times already cited the example of Miltiades' 
[estates in the Chersonese]. The possessions and castles of the [Genoese] 
Grimaldi are found all along the coast line of Provence. Towards the 
North such conditions become much rarer, and in the typical central 
or northern European city of later times they were entirely absent. On 
the other hand, the medieval city also knew almost nothing of such 
phenomena as a populace which, like the Attic demos, expected and 
recived municipal gratuities and pensions based entirely on the po- 
litical power of the state [i.e., on the tributes exacted abroad and similar 
r-jveiues]. Direct distribution of the economic yield of municipal prop- 
r>'.iv>, similar to the distribution of the profit from the Laureion mines* 
- ?L? b n. fliers of Athens, did, however, exist in medieval cities as it 
■...;••> ;.. nvdern communities. 



r O'igin ■:{ i^e Ancient Lower Class: Debtors and Slaves 

I: .•?. contrast between the lowest strata [of Antiquity and those of 
t ] Middle Ages] is very sharp. The ancient city experienced as the 
chiji danger arising from economic differentiation, which all parties 
therefore sought to combat with varying means, the emergence of a 
class of full citizens, descendants of families with full citizenship rights, 
who were economically ruined, in debt, without property, no longer 
capable of equipping themselves for service in the army, and who 
hoped for a revdludon or a tyranny from which they could demand 
a redistribution of land, a cancellation of debts, or support ouLof public 



v] _ Ancient and Medieval Democracy i 3 4 1 

means: grain distributions, free admission to festivities, dramatic per- 
formances and circus fights, or direct doles from public funds to make 
possible their attendance at such performances. It is true that such 
strata were not entirely unknown in the Middle Ages; they could be 
found also in more recent times in the South of the United States, 
where the slave-holding plutocracy was confronted by the unpropertied 
"poor white trash." In the Middle Ages the debt-ridden declasse strata 
of the nobility, for instance in Venice, were as much an object of con- 
cern as in Rome at the time of Catilina. But on the whole this problem 
played a very small role in the Middle Ages, .above all in the democratic 
cities. It certainly was not the starting point for class struggles, as it 
typically was in Antiquity. For the class struggles of early Antiquity 
took place between the urban patriciate as creditors and the peasants as 
debtors or as dispossessed debt slaves. The civis froletarius, the "de- 
scendant" — namely, of a full citizen — was the typical declasse.* In the 
later period this role fell to debt-ridden junkers, like Catilina, who con- 
fronted the propertied strata and became the leaders of the radical revo- 
lutionary parties. The interests of the negatively privileged strata of the 
ancient polis were essentially debtor interests. But also consumer inter- 
ests. Those interests, on the other hand, which in the Middle Ages 
constitute the pivot of city politics during the democratic period, the 
producer interests of the artisans, increasingly recede into the back- 
ground in later Antiquity, although the early period of the rise of ancient 
Democracy had also been characterized by artisan-type policies con- 
cerned with a "fair living." The fully developed Democracy of the 
Hellenic cities, but also the fully developed rule of honoratiores in 
Rome, take into account litde more than trading and consumer inter- 
ests, at least as far as the urban population is concerned. The export 
prohibitions for grain, which the ancient polis had in common with 
the medieval city and the mercantilist state, did not suffice in Antiquity; 
hence the economic policy of that period was dominated by direct 
public provision for grain snppl'es. The grain gifts of friendly princes 
provided the main impetus in Athens for a revision of the citizenship 
rolls in order to exclude those not entided to a share in the distribution." 
Crop failures in the grain areas of the Pontus forced Athens to remit 
the tribute of the confederates, which shows to what extent economic 
capacity was ruled by the price of bread. Direct grain purchases by the 
polis are also found in ancient Greece, but grain tributes imposed on 
the provinces on a huge scale for free distribution to the urban citizenry 
appear only in the late republican period in Rome. 

In the Middle Ages, the typical needy person was a poor artisan, 
a craftsman without work. In Antiquity, he was a "proletarian," a 



I 342 THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

former landowner who was politically cUcfo$$6 because he no longer 
owned any real estate. Antiquity, too, knew an "unemployment" 
problem for its artisans; as the typical remedy it used the great public 
construction projects, such as those executed by Pericles.- . 

The mass employment of slave labor in the trades affected their 
social position in Antiquity. To be sure, slavery was a permanent fea- 
ture also in a number of medieval cities. In the Mediterranean maritime 
cities a real slave trade existed even to the very end of the Middle Ages 
and, on the other end of the continuum, as continental a city as Moscow, 
prior to the abolition of serfdom [1861], showed most of the charac- 
teristics of a large Oriental city of the time, say, of Diocletian: it wai 
a place where rente derived from the ownership of land and souls, as 
well as office revenues, were consumed. But in the typical city of the 
medieval Occident, slave labor played a rapidly diminishing economic 
role, and ultimately none at all. Nowhere would the powerful craft 
guilds have tolerated the development of an artisan stratum of slaves, 
paying a "body-rent" to their master, as competitors of the free crafts. 
This is precisely what happened in Antiquity. There, any accumula- 
tion of wealth invariably signified an accumulation of slaves, and every 
war produced huge numbers of captives who swamped the slave markets. 

In part these slaves were utilized for consumption purposes, i.e., in 
the personal service of the owners. The possession of slaves was one 
of the basic prerequisites for a conduct of life appropriate to the social 
standing of a full citizen in Antiquity. In the hoplite period, a time 
of chronic warfare, hecould dispense with slave labor as little as the 
knight of the Middle Ages could do without that of the peasants. A 
man who had to live without any slaves was definitely a "proletarian" 
(in the ancient meaning of the word). The eminent families of the 
Roman nobilitv "consumed" the services of great numbers of slaves, who 
were engaged jn the conduct of the great households in a very detailed 
functional division of labor and also produced a considerable part of' the 
household needs in the manner of the oikos economy. Food and clothing 
for the slaves, howeyer, were to the largest part obtained in the money 
economy. Irr Athens the household as a rule supplied itself entirely 
through the money economy, and this was even more true for the 
Hellenistic East. However, of Pericles [i.e., in the fifth century b.c.] it 
was still thought noteworthy to stress that he, for the sake of his popu- 
larity with the artisans, attempted to supply his needs whenever possible 
by purchase in the market rather than within the economy of his 
household. 

At the same time commercial production in the ancient city was 
also to a considerable part in the hands of slaves. The ergjsteria we 



v ] - Ancient and Medieval Democracy i 3 4 3 

have discussed earlier; beside them appear independently established 
unfree artisans and small merchants. It should be obvious that the side- 
by-side employment of slaves and free citizens, such as we find in the 
mixed piecework groups laboring at the construction of the Erechtheion, 9 
must have had a socially degrading effect on the evaluation of work, and 
that the economic competition of the slaves must also have been notice- 
able. For all that, the fullest expansion of the exploitation of slaves in 
ancient Greece fell precisely in the periods of Democracy. 



2. Constituencies of the City: Ancient Territorial Units 
versus Medieval Craft Associations 

This proximity of slave labor and free labor apparently also nipped 
in the bud any possibility of a development of craft guilds in Antiquity. 
It may be assumed, even though it cannot be definitively proven, that 
in the early days of the polis there existed beginnings of occupational 
associations. To all appearances these were organizations of the mili- 
tarily important old war crafts, such as the centuriae fabrum in Rome 
and the demiourgoi in Athens at the time of the status struggles. But 
these beginnings of political organization disappeared without Jeaving 
a trace precisely during the democratic period, and, given the social 
structure of the crafts at that time, it could hardly have been otherwise. 
The ancient small burgher could be a member of a mystery congrega- 
tion (as in Greece) or a collegium (as later in Rome) together with 
slaves, 9 but he could nGt join with them in an association which, like 
the craft guilds of the Middle Ages, claimed political rights. . 

The medieval ipoipGlo, ; r contrast tc the patriciate, was organized 
on the craft guild prinri'^k.. But precisely during the ruje of the demos 
in the classical period of Antiquity, al| traces cf craft' organizations are 
absent, in spite of the incipient development notejl for an earlier period. 
The j ancient "democratic" city was organized,' instead, by "demes" 
(.demoi) or "tribes^" (triJws), that .'s,.aa-<m-.vng- to' territorial' and in fact 
(formally) primarily rural districts. This h a 'characteristic which, in- 
tum, was entirely absent in the medieval city. To be sure, the subdivi- 
sion of the interior of the city into waids was common not only to the 
cities of Antiquity and the Middle J Ages ; but' to the Oriental and Far 
Eastern city as well. But the exclusive founding of all political ■organi- 
sation on territorial communities and, above all, the extension of this 
principle to the entire countryside under the political rule of the city, 
so that formally the village became a direct subdivision of the city — this 
phenomenon was unknown in the Middle Ages and also in the cities 



1344 THE GITY (non-legitimate domination) [Ch, XVI 

of all other areas. The "deme" divisions essentially coincided with village 
districts, historically formed or created ad hoc, and — like villages — the 
"demes" were equipped with a commons and with local authorities. The 
historical uniqueness of this type of city-constitution, which prevailed 
especially during the democratic period of the ancient polis, simply 
cannot be stressed too strongly. 

By contrast, craft organizations as constituencies of the city are 
found in Antiquity only in the early period, and then only alongside 
other status corporations. They were used primarily for election pur- 
poses: so, in Rome, the centuriae of the fabri [craftsmen] alongside 
the centuriae of the equites [knights] in the old military class organiza- 
tion, and perhaps in early Athens — though this is entirely conjectural 
— the demiourgoi of a pre-SoIonic compromise among the status groups. 7 
The origins of such organizations could have been voluntary associa- 
tions, as was certainly true for the very old collegium meraUorum, with 
its professional god Mercurius, which was taken into account in the 
political constitution of Rome. Or again, they could have their source 
in liturgical associations formed for military purposes, for the ancieat 
city did, after all, originally rely for the satisfaction of public require- 
ments on the involuntary services of the burghers. 

Individual phenomena of a "city guild" type are indeed found in 
Antiquity, The cult association of the dancers of Apollo in Miletus, for 
instance, had an official status of a city-governmental kind (although 
its specific powers are not known), as is shown by the fact that the 
name of its president supplied the eponymic designation for the year. 
In one respect it finds its closest parallel in the city guilds of die medie- 
val North, in another in the craft guilds of the magical dancers among 
American Indian tribes, of the magicians (Brahmans) in India, and 
of the Levites in Israel. But this cult association shotdd not be pictured 
as a guest tribe of professional ecstatics. In historical times it probably 
was a club of honoratiores qualified to participate in the Apollo proces- 
sions; its nearest medieval correspondence would thus be the P.icker- 
zeche of Cologne, with the difference that the ruling political burgher 
association is, in a manner typical of Antiquity (but not oi the Middle 
Ages), identified with a separate cult community. If in late Antiquity, 
in Lydia, colleges of craftsmen are again found with hereditary wardens, 
which seem to have taken the place of the [political-tribal units, the] 
phylae, then we can almost certainly say that they must have had their 
origin in old craft-specialized gaest tribes and thus represent a develop- 
ment more reminiscent of India than of the Occident. ]>-, die Occident 
an occupational organization of craftsmen first reappeared in the late 
Roman and early medieval officia and artificia of the manorial handi- 



v ] Ancient and Medieval Democracy 1 3 4 5 

crafts. Later, during the transition to the Middle Ages, we find associa- 
tions of urban handicraft workers producing for the market but per- 
sonally tied to a master to whom they owed a "body rent"; these 
associations, however, which seem only to have served for the collection 
of the dues, may have had their origin in liturgical organizations formed 
by the lords. Alongside these groupings, which disappeared in time, we 
find those voluntary unions of free artisans — perhaps just as old as the 
former — which were organized for the purpose of monopolizing eco- 
nomic opportunities, and which later were to play the decisive role in 
the movement of the bourgeoisie against the patrician houses. 

Nothing at all similar is found in the classic Democracy of Antiquity. 
Liturgidal craft guilds, which may have existed in the early period 
of city development (even though not even traces of such units can 
be documented with any assurance apart from those, Roman military 
and electoral associations), reappear only in the liturgical monarchies 
of kte Antiquity. Free and voluntary unions were active in all possible 
spheres of life especially during the period of classical Democracy, but, 
as far as can be seen, they nowhere obtained or aspired to the charac- 
ter of craft guilds. Hence they are of no concern in the present con- 
text. If they had anywhere sought for the economic character of craft 
guilds, they would have had to disregard the distinction between free 
and unfree members, just as the medieval city later did, in spite of the 
existence of great masses of unfree artisans. But this would have re- 
quired the renunciation of all 'political aspirations, which in turn would 
have produced important disadvantages in the economic sphere, the 
nature of which we shall soon discuss. The ancient Democracy was a 
"guild" of the free burghers only, and this determined its political 
functioning in all respects. Free craft guilds or similar unions therefore 
first began to form, as far as is known, precisely at the time when the 
political role of the ancient polis had definitely come to an end. But 
the idea of suppressing, expelling, or in some other way effectively limit- 
ing the number of the unfree and the free but not fully enfranchised 
craft workers (freedmen, metics) was one which ancient Democracy 
could no longer even consider since it was so obviously impracticable. 
The beginnings of such policies, which in a very typical way show 
themselves during the period of the status struggles and especially dur- 
ing the rule of the aisymneuti and tyrannoi, later vanish entirely pre- 
cisely after the victory of Democracy. The extent to which the slaves 
of private masters were employed side-by-side with free citizens and 
metics on the public construction projects and in the production of 
state supplies during the very period when the rule of the demos was 
absolute seems to show that these operations could not have been con- 



1346 



THE city (non-legitimate ixuminatton) [Ch. XVI 



ducted without them — although it probably also shows that their owners 
were unwilling to forego the profits obtainable from their utilkation 
on the public projects and had the power to prevent their exclusion. 
At least on the public projects the slaves would otherwise certainly not 
have been used. The productive capacities of the free trades operated 
by full citizens thus were not sufficient for major state needs. 

The great structural difference between the fully developed ancient 
and medieval city, during the period of the rule of the de»ios here and 
of the popolo there, is manifested in this [neglect of artisan producer 
interests]. In the ancient city of early Democracy, dominated by the 
hoplite army, the town-dwelling craftsman — i.e. r a man not settled on 
a "citizens parcel" (feJeros) and not economically capable of self- 
equipment for military service — played a politically negligible role. In 
the Middle Ages the city was led by the -pofolo grasso, the grande hour- 
geoisie of the large entrepreneurs, and by the small capitalists, the 
tradesmen of the popoh minuto. But within the ancient citizenry these 
strata had no — or at least no significant — power. If ancient capitalism 
was politically oriented, so was ancient Democracy. In the case of ancient 
capitalism, the interests were directed toward state supply contracts, 
state construction and armament, state loans (a political factor in Rome 
as early as the Punic wars), state expansion and booty in the form of 
slaves, land, tributes, and privileges in the subject cities with respect to 
the purchase of land, the lending of money on land, trade and de- 
liveries. Tbe political orientation of ancient Democracy was determined 
by the peasantry as long as it provided the core of the hoplite armies, 
whose interest was in the military acquisition of land for settlement 
purposes, and by the urban petite bourgeoisie with its interest in the 1 
direct and indirect revenues obtainable from dependent communes: the 
state building programs, the allowances paid for attending theater per- 
formances and heliaia court sessions, the grain and other distributions 
offered by the state at the expense of the subjugated peoples. Restrictive 
craft guild policies in the medieval manner would never have been per- 
mitted, in view of their consumer interests in cheap supplies of craft 
products, by the landowning strata which made up the bulk of the hop- 
lite army at the time of its triumph in the compromises between the 
status groups under Cleisthenes in Athens and the decemviri in Rome.* 
And the later sovereign demos in Hellas, which stood under the in- 
fluence of more specifically urban interests, no longer showed any inter- 
est in such policies and probably, as we have noted, also was no longer 
in a position to enact them. 

Tlie political aims and means of ancient Democracy thus were 
fundamentally different from those of the medieval hourgeaiste. This 



v ) _ Ancient and Medieval Democracy i 3 4 7 

also finds expression in the difference, mentioned several times already, 
between the political subdivisions of cUies in the two periods. 

In the Middle Ages the patrician houses did not vanish outright, 
but instead were often forced to enroll in the craft guilds, the new 
constituencies of the citizenry. This signified that they could be out- 
voted within these units by the middle classes and had thus formally 
lost part of their influence. Often, of course, the effect of such measures 
was to drive the craft guilds onto a path which turned them into pluto- 
cratic corporations of rentiers, such as the London "liveries." Neverthe- 
less, such developments always signified an increase in the power pf a 
specifically urban stratum either directly participating in commerce and 
the trades or indirectly interested in it: of the bourgeoisie in the modern 
sense. 

In Antiquity, on the other hand, the old fersonal patrician family 
associations (the gentes, phylae and phratries) were replaced or joined 
by [territorial] subdivisions of the city state, the demoi and tribus, and 
these bodies or their representatives assumed all political power. This 
had two consequences. Firsdy, it signified the dissipation of the influence 
of the patrician families, for their holdings, as is natural .for land ob- 
tained through mortgage lending and debt foreclosure, were typically 
dispersed all over the territory and could now no longer be brought to 
exert concentrated political weight in a single constituency, but were 
reduced to diffuse effect on the individual demoi where the component 
parcels happened to be situated. There, in the "deme," the holding was 
now registered and taxed; this signified a far greater curtailment of the 
political power of large holdings than would today the incorporation of 
the manorial districts (Gutsfcezirfee) in eastern Germany into the rural 
communes.* Furthermore, and most importantly, the division of the 
entire city territory into demoi signified rhat henceforth all council posi- 
tions and offices would be filled with representatives of these units, 
as happened in Hellas, or at least that the voting bodies would be or- 
ganized according to tribus, as happened in Rome with the thirty-one 
rural and four urban tribus in the comitia tributa. xo At least according 
to the original intention, this was to secure the dominance and the' 
-rule over the city not of town-dwelling, but of rural strata. Thus the 
revolutionary reorganization was not to signify a rise to political power 
of the urban, economically active burgherdom, as in the case of the 
medieval yopolo, but the exact opposite: the political rise of the peasantry. 
This is to say: while in the Middle Ages the carrier of "democracy" was 
from the very beginning the stratum of the urban tradesmen, in the 
Cleisthenian period of Antiquity it was the peasantry. 



I 3 4 ^ THE CITY (NON-LEGITIMATE' DOMINATION) [ Ck. XVI 

3. Excursus on Athenian versus Roman Constituencies 

Only in Rome, however, was this of factual importance also in the 
long run. For in Athens membership in a "deme" was a permanent and 
hereditary quality, independent of residency, landownership and occu- 
pation; one was born into it just like one was bom into the phratry and 
the clan. The descendants of a member of the Paianian "deme" — such 
as, e.g., those of Demosthenes — remained for all centuries legally at- 
tached to this district, were taxed by it and drawn by lot for its offices, 
regardless of whether they retained any connections at all to the district 
through residence or landowiwtAip. This, of course, deprived the 
demoi of their character of local peasant associations as sopn as a few 
generations of migration to the city had gone by. All kinds of urban 
tradespeople would by that time count as members of a rural demos- In 
fact the demoi became purely personal Subdivisions of the citizenry, just 
like the phylae. As a result the burghers of Athens, who could always 
be present in the popular assembly, the ekklesia, were favored not only 
on this score but also increasingly came to constitute the majority 
within the formally rural demoi as the city grew. 

The development in Rome wa*s different, even though at one time a 
similar principle seems to have applied to the four old urban tribus. 
However, each of the later rural tribus comprised only those citizens 
who actually owned land there at any given time. With the abandon- 
ment of this property and the purchase of new property elsewhere, one 
changed one's tribus. The gens Claudia, for instance, in later times no 
longer belonged to the tribus which it had given its name. Just as in 
Athens — and actually much more so, because of the so much larger 
territorial expanse — this arrangement favored those tribus members who 
could attend the comitia, and that means those who lived in Rome. In 
contrast to Athens, however, such benefits accrued only to people who 
held land in the rural tribus, and then only if their properties were of 
such size that they could afford to live in the city while leaving the 
actual farming of their lands to others — in other words, the beneficiaries 
were landowning rentiers. Great and small rentier landlords thus domi- 
nated the Roman comitia after the victory of the plebs. The superior 
strength of the town-dwelling landed nobility in Rome and of the 
urban demagogos in Athens helped to perpetuate this difference between 
the two cities. 

The -plebs of Rome was not a popolo, a union of the craft guilds of 
artisans and traders, but rather a status association of the rural land- 
owners capable of serving in full armour, of whom the town-dwellers 
alone as a rule dominated politics. The plebeians originally were not at 



v J Ancient and Medieval Democracy * 3 4 9 

all smallholders in the modem sense, and even less a peasantry in the 
medieval sense, but rather the landowning stratum of the countryside 
which was economically capable of full military service: if socially not 
a "gentry/' then at least a "yeomanry" with middle-class character in 
regard to size of landholdings and style of life at the time of the rise of 
the flehs. In other words: a stratum of "agrarian burghers." 

In the course of expansion of the Roman state, the influence of the 
city-dwelling agrarian rentiers increased. By contrast, the entire urban 
artisan population remained organized in the four urban tribes, and 
therefore without political influence. The Roman office nobility always 
preserved this organizational principle, and even the Gracchian re- 
formers were far from wanting to change it in favor of a "Democracy" of 
the Hellenic type. This "agrarian" character of the Roman army made 
possible the continued domination of the great city-dwelling senatorial 
families. Whereas Attic Democracy appointed its executive Council, the 
boule, by lot, and destroyed the veto power of the Areopagus, the old 
council composed of former officials and corresponding to the Senate, in 
Home the Senate was retained as the directing agency of the city and 
no attempt was ever made to change this. The command of the troops 
always fell to officers from the urban noble families during the great 
expansion period. The Gracchian reform party of the late republican 
period, like all typical ancient social-reform movements, was above all 
interested in safeguarding the military capacity of the polity; it sought 
to check the proletarianization of the rural landowners through the land 
purchases of large landholders, and to strengthen their number, in order 
to maintain thereby the strength of the self-equipping burgher army. 
It, too, was thus by origin a rural party — in fact, so much so that the 
Gracchi, in order to obtain anything at all along these lines, felt con- 
strained to seek an ally against the office nobility in the "knights" 
(e^ttites), 11 the capitalist stratum interested in farming the state revenues 
and in state supply contracts which, because of its commercial activities, 
was excluded from participation in the offices." 



4. Economic Policies and Military Interests 

It has been asserted, probably correctly, that the Periclean construc- 
tion policy served also to provide employment for the Athenian artisans. 13 
Since the building programs were financed from the tributes paid to 
the hegemonial city by the confederates, it was these who were the ulti- 
mate source of such earning opportunities. However, the benefits by no 
means accrued only to craftsmen with full citizenship, for the inscrip- 



335° 



THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 



dons show that metics and slaves also found employment at these 
projects. The real "unemployment benefits" of the lower strata during 
the Periclean period were, rather, sailor's wages and booty — above all, 
booty from sea wars. This is the reason why the demos was always so 
easily won for war. These declassi burghers were economically dispensa- 
ble and. had nothing "to lose. But an employment and output policy 
oriented around independent craft producers never appeared as a sig- 
nificant element in the entire ancient democratic development. 

If the economic policy of the ancient city is thus seen to be pursuing 
primarily the interests of urban consumers, then this can certainly also 
be said of the medieval city. But the measures taken were much more 
drastic in Antiquity, obviously because it seemed impossible to leave 
the provisioning with- grain of cities such as Athens and Rome in the 
hands of private commerce. Occasionally we find also in Antiquity 
measures favoring the production of some especially important export 
goods, but these were never mainly directed at the artisan branches of 
production. And nowhere were the politics of an ancient city dominated 
by such producer interests. The interests with a decisive influence on the 
policies of the old maritime cities were, rather, in the early period those 
of the town-dwelling seigneurial and knightly patriciate, which is found 
everywhere, in sea trade and piracy whence it derived its wealth, and 
later, in the early period of Democracy, those of the rural hoplite pro- 
prietors, a stratum which in this form is found only in Mediterranean 
Antiquity. Still later the urban policies were determined by the interests 
of the owners of money and slaves, on the one hand, and by those 
of the urban petit-bourgeois strata on the other, both of which had a 
stalce, though differing in kind, in state contracts and in military spoils, 
either as large or small entrepreneurs, or as receivers of state handouts, 
or again as warriors and sailors. 

In these respects the medieval city democracies behaved in a funda- 
mentally different manner. The causes for this difference were present 
and effective already at the founding of the medieval cities; they were 
connected both with geographic circumstances and with military factors 
based on general cultural developments. The ancient Mediterranean cities 
were not confronted at the time of their emergence by wow-urban politi- 
cal and military power structures of any significance and, most im- 
portandy, of a high technical level; in fact, the cities themselves were 
at that time the bearers of the most highly developed military techniques. 
This was true for the knightly phalanx of the patrician clan city, and 
even more so later for the city of the disciplined hoplite formations. 
Wherever the situation was in this military respect similar in the Middle 
Ages, as in the case of the early medieval southern European maritime 



v ] AncieM and Medieval Democracy i 3 5 1 

cities andof the Italian city republics of the urban nobility, the develop- 
ment also shows relatively far-reaching similarities to that of Antiquity. 
In the early medieval city state of southern Europe, the aristocratic 
structure of urban organization was predetermined by the aristocratic 
character of military technique. Especially the maritime cities, but also 
those relatively poor inland cities — such as Bern— which held possession 
of large subject territories ruled by the urban rentier patriciate, displayed 
the fewest tendencies toward democratic development. 

The industrial inland cities, by contrast, and in particular the cities 
of continental northern (Europe, found themselves confronted in the 
Middle Ages by the military and administrative organization of the 
kings and their castle-seated knighdy vassals distributed all over the wide 
inland terrain. To a high percentage, which increases toward the 
North and the interior, these cities were dependent from the moment of 
their foundation on concessions from the political and seigneurial power- 
holders integrated into the feudal military and office structure. Increas- 
ingly as time went on, they were given "city" status not because of any 
political or military interests of a local defense association, but for purely 
1 economic motives of the founder alone who, as the wielder of power, 
expected for himself revenues from tolls and other traffic charges and 
from taxes. The establishment of a city became for the lords primarily 
an economic undertaking, a business proposition rather than a military 
measure — or at least, wherever military aspects had played any role, 
they tended to recede more and more into the background. The urban 
autonomy of varying extent, which was the specific characteristic of the 
medieval Occidental city, developed only because and insofar as the 
non-urban power-holders did not' yet possess a trained apparatus of officials 
able to meet the need for an urban administration even to the limited 
extent required by their own interest in the economic development of 
the city. This was the only element which everywhere was decisive. The 
early medieval princely administration and courts did not have the spe- 
cialized knowledge, continuity, and training in rational objectiveness 
which would have given it the capacity to order and direct the affairs of 
urban craft and commercial interests — affairs that were so far removed 
from the social habits and time-consuming preoccupations of the knighdy 
personnel of these bodies. The interest of the power-holders in the 
early period was only in money revenues. If the burghers managed to 
satisfy these interests, all probabilities were in favor of the non-urban 
power-holders refraining from interference with the burghers' affairs. 
This was especially true since such interference might have harmed 
the attractiveness of one's own city foundation in the competition with 
those of other power-holders, and thus one's own revenues. The competi- 



I 3 5 2 THE CITY (NON-LEGITIMATE DOMINATION^ [ Ck. XVI 

tion between the non-urban powers, in particular the conflict of the 
central power with the great vassals and the hierocratic power of the 
church, came to the aid of the cities, especially since an alliance of any 
one of the contending powers with the money power of the burghers could 
provide it with a decisive advantage. Hence, the more unitary the or- 
ganization of the larger political association, the less was the development 
of urban political autonomy. For all feudal powers without exception, 
beginning with th^ kings, viewed the development of the cities with 
utter distrust. Only the lack of a bureaucratic apparatus and their money 
requirements forced the French kings from Philip Augustus on, and 
the English kings after Edward II, to seek support in the cities, just as 
the same factors had earlier induced the German kings to seek support, 
from the bishops and the wealth of the church. After the onset of the 
Investiture Struggle, which deprived the German kings'of this support, 
we find also in Germany short periods during which the Salic kings 
courted the cities. But as soon as their political and financial resources 
permitted the royal or provincial patrimonial powers to develop the neces- 
sary administrative apparatus, they tried to destroy theautonomy of the 
cities again. 

The historical interlude cf urban autonomy was thus in medieval 
city development caused by entirely different conditions than in An- 
tiquity. The typical ancient city, its ruling strata, its capitalism, its demo- 
cratic interests — all these were politically and militarily oriented, and 
the more so, the more their specifically ancient aspects come to the fore. 
The downfall of the patriciate and the transition to Democracy were 
caused by a change in military technique. It was the self-equipped dis- 
ciplined hoplite army which carried the struggle against the nobility, 
ousting it militarily and then also politically. Its success was of varying 
dimensions. At times it led to the complete destruction of the nobility, 
as in Sparta. Or it led to the formal removal of status differences, to 
satisfaction of the demand for rational and more easily accessible justice, 
safeguards for the legal status of persons, and elimination of the rigors 
in the debt law, while de facto — if in changed form — the preeminence 
of the nobility was preserved: as in Rome. Or again, it led to the in- 
corporation of the nobility into the demcn. and to a timocratic govern- 
ment of the city state: as in Cleisthenian Athens. In most cases some of 
the authoritarian institutions of the patrician state were preserved as 
long as the influence of the rural hoplite elements was predominant. 
Great variety prevailed also in the intensity of militarization of institu- 
tions. The Spartan hoplite community treated all land belonging to the 
warriors and the unfree population living on it as communal property, 
and granted each warrior who had established his military qualification 



v ] Ancient and Medieval Democracy '353 

the claim to a land rent. No other polis went^ quite that far, but re- 
strictions on the alienability of the warrior lots Oderoi), the inherited 
land of members of the city guild, seem to have been fairly widespread 
and survived in rudiments into the later period. However, even this 
practice was probably never universal and was later eliminated every- 
where. All other land was encumbered only by the inheritance rights of 
the sons 1 * and otherwise freely alienable. In Sparta, land accumulation, 
although forbidden in the hands of the male Spartiates, was admissible 
in those of their women, and this ultimately transformed the economic 
basis of the warrior association of the perhaps 8,000 original full citizens, 
the homoioi ("equals"), so much that finally only a few hundred could 
afford the full military training and the membership fee for the 
syssitia, on which full citizenship rested. In Athens, development took 
the opposite course: here the enactment of free transferability of land 
in combination with the "deme" constitution furthered the breaking up 
of the land into small lots, which corresponded to the requirements of 
the expanding market-gardening culture. In Rome the free transfera- 
bility of land, which existed from the time of the Twelve Tables, had 
again different consequences in that it led to the destruction of the 
village-type of rural settlement." In Hellas, hoplite democracy waned 
in all those areas where military strength came to be based primarily on 
naval power — as in Athens definitively after the defeat at the hand of 
the Boeotians at Koroneia in 447 b.c. 1 " From that time on, the former 
rigorous military training was neglected? the remainders of the old au- 
thoritarian institutions were abolished, and both policies and institutions 
of the city came under the full domination of the towwdwelling demos. 
Such transformations based on purely military factors were unknown 
in the medieval city. The victory of the popolo rested primarily on eco- 
nomic foundations. And the specifically medieval city type, the artisan 
inland city, was altogether economically oriented. The feudal powers 
of the Middle Ages were not by origin city-kings and city nobles. Unlike 
the nobility of Antiquity, they were not interested in putting into their 
service specific instruments of military technique offered only by the 
dry. For, apart from the maritime cities with their war fleets, the cities 
of the Middle Ages were not as such the bearers of specific military 
power instruments. Quite to the contrary: Whereas in Antiquity the 
hoplite army and its training, and thus military interests, increasingly 
came to constitute the pivot of all urban organization, in the Middle 
Ages most burgher privileges begarf with the limitation of the burgher's 
military duties to garrison service. The economic interests of the medieval 
townsmen lay in peaceful gain through commerce and the trades, and 
this was most pronouncedly so for the lower strata of the urban citizenry, 



1354 THE CITY (non-legitimate domination) [Ch. XVI 

as is shown especially by the contrast between tbe policies of the pofofo 
mtnuto and those of the upper strata in Italy. The political situation 
of the medieval townsman determined his path, which was that of a 
homo oeconomicus, whereas in Antiquity the polis preserved during its 
heyday its character as the technically most advanced military associa- 
tion : The ancient townsman was a homo potiticus. 

In the northern European cities, as we have seen, the ministeriales 
and knights as a status group were often directly excluded from the city. 
The non-knightly landowners were either mere city subjects or, at times, 
passive guest-burghers under the protection of the city; sometimes they 
were guild-organized gardeners and vintners, but they were almost never 
politically or socially significant. As a general rule, and increasingly" so 
over time, the countryside was a mere object of the economic policy of 
medieval cities without a voice of its own. The typical medieval city 
was nowhere in a position even to entertain the notion of a policy of 
colonizing expansion. 17 



5. Serfs, Clients and Freedmen: Their 
Political and Econow&$J$ole 

Here we reach a very important point: the comparison of the status 
structure of the ancient and the medieval city, Tri addition to the slaves, 
which we have already discussed, theamcient polis knew a number of 
status strata which in the Middle Ages are either found only in die 
early period or not at all, or which appear only outside of the city* 
Among these we count: 1. the serfs; 2. the debt slaves and debt servants; 
3. the clients; 4. the freedmen. The first three groups in general belong 
to the period prior to the hoplite democracy and later are found only in 
remnants of rapidly diminishing importance. The freedmen (emanci- 
pated slaves), by contrast, play an increasingly important role precisely 
in the later period. 

r. the serfs. In historical times, patrimonial serfdom (Hongkeii) 
appears in the area of the ancient polis primarily in conquered territories. 
In the early feudal period of city development, however, it must have 
been very widely diffused. Like the position of serfs throughout the 
world, which has *lways been similar in certain fundamental aspects 
while widely varying in the details, that of the ancient serf was in 
principle not different from that of his medieval counterpart. Every- 
where the serf was in the main exploited economically. Serfdom was 
most completely preserved in the Hellenic area wherever the polis or- 



v I Ancient a-; I blertiw-- '•'■ r'-xrci'W ~i '■>, '-, c ; 

ganiz:Hion w;« not compis;teiy earned .hr ; ■'."■;?>, as in [southern] Italy, 
and also in cities which were t>:ristiti j(c:( -o rigorously as warrior or- 
ganizations that the serfs were considered the possession of the state 
rather than that of individual masters. Offside these areas, serfdom 
disappeared almost everywhere during the period of hoplite democracy. 
It revived during the Hellenistic period in the western areas of the 
Orient, which at that time were being organized in the polis form. 
Large territories, which retained their tribal constitution, were assigned- 1 
to the individual cities whose burghers formed a Greek (or Hellenized) 
garrison so the interest of the post -Alexandrian territorial kings. How- 
ever, iiiUia'hy this bondage of the non-Ho'ienic rural population (the 
iO\t,. or "tilhc-;".'; \vs piirt.!y {ioiiciaii ant] in- fi.ee quite J'ftcrent. fs r =-■ 
die (Jdjrii:;«iii<!l dependency o' riie >.•■:■ dy epoch; it no longer belongs t<. 
die description of die autonomous cities. ,s *" 

z. debt servants 1 " played a very significant role as labor power in 
Antiquity. They were economically "declassed" burghers, whose situa- 
tion provided the specifically social issue in the early status struggles be- 
tween the urban patriciate and the rural hoplites. Various compromises 
to resolve the problems of these downgraded peasant strata were worked -- 
out in the aisymneric codifications of the Greeks, 20 in the Roman Twelve "*" 
Tables, in the laws on seizure of persons for unpaid debts, 21 and in the . 
policies of the tyrants. The solutions varied greatly. The debt servants 
did not come from serf strata, but were free landowners who with their 
families, and. lands had been sentenced to permanent enslavement or to 
pnvate debt bondage, or who had voluntarily entered into debt bondage 
in order to avoid enslavement. They were put to economic use, fre- 
quently as farmers on their own land for the account of the creditor. 
The peril posed by such strata can be seen from the fact th2t the 
Twelve Tables prescribed that enslaved debtors could not be held in the 
country but had to be sold abroad {"tram Tiberim"]. 

3. the clients" must be distinguished both from debt servants 
■and serfs. In contrast to the latter, they were not despised as men under 
the power of others, hut rather formed the followership of a patron; 
this relationship was one of mutual "fidelity," such that it put a legal 
suit between patron and client under a religious taboo. The contrast 
to debt bondage is shown by the fact that the economic exploitation of 
the client relationship by a patron was considered an offence against 
decency. The clients were personal and political, "but not economic, 
means of power of the patron. Their relationship to the lord was regu- 
lated by the fides, the observance of which was guarded not by a judge 
but by a moral code, ard the violation of which had sacral consequences 
(the violator became an infamis). Clientage stemmed from the time of 



13 5^ THE CITY (NON-LEGITIMATE DOMINATION) [ Ck. XVI 

knighdy warfare and the rule of the nobility, and the clients originally 
were the attendants of the lord who followed him into battle, were 
obligated to render gifts and support in case of need, perhaps occasionally 
also labor services, and were provided with a parcel of land and repre- 
sented before the courts by him. They were not the lord's servants, but 
what the Middle Ages would have called his ministeriales, with the 
difference, however, th ■ t they were not men of a knighdy style and with 
knighdy rank, bu* sman people with peasant holdings — a stratum of 
plebeian war-fief holders. 

The client thus was a person who had no share in the land holdings 
and the local communities, and therefore in the military association* 
and who had entered (in Rome through the application into a tutelary 
relation with the head (pster) of a patrician family or with the king 
and in turn was assigned (the technical term in Rome was adtribuere) 
military equipment and land by this patron. In most cases this relation- 
ship was inherited from his ancestors. This was the old meaning of 
clientage. And just as in the Middle Ages the rule of the nobility gave 
rise to the Muntmattnen, so in Antiquity under equivalent circumstances 
the small peasantry found itself induced to enter clientage in great 
masses, if only to secure representation before the courts by a noble- 
man. In Rome this was probably the source of the freer forms of 
clientage of the later period. But the old clientage, at least in Rome, 
put the client entirely in the hand of the patron. As late as 134 b.c. 
Scipio, as commander of an army, could still summon his clients 
to military service.™ In the period of the Civil Wars this role [of 
a private military following] was taken over by the coloni (small lease- 
holders) of the great landowners. 

In Rome the clients had a vote in the military assembly, and ac- 
cording to tradition (Livy) they constituted an important support for 
the patricians. The institution of clientage was probably never legally 
and formally abolished. But the triumph of hophte technology elimi- 
nated its former military significance also in Rome, and in later times 
clientage survives only as an institution securing the patron a certain 
social influence. Hellenic Democracy, by contrast, completely destroyed 
clientage. The medieval city knew the institution only in the form of 
the tutelary power (Muntwaltschaft) of a full citizen over a guest citizen 
who applies for his protection. This clientage for representation in the 
courts vanished along with patrician domination. 

4. the ereedmen, finally, were a numerically significant stratum 
which played a role of considerable importance in the ancient city. 
They were in the main exploited economically. In the [Greek] in- 
scription material carefully examined by Italian investigators, about one 



v ] Ancient and Medieval Democracy i 3 5 7 

half of the manumitted were; women. 3 * In those cases manumission is 
likely to have usually served the pujpose of making possible a valid 
marriage, and thus probably was obtained through purchase by the 
bridegroom in Sfe. Beyond this we find in the inscriptions an especially 
large number of freedmen who had been house servants, and thus owed 
their freedom to personal favor. The seemingly large proportion of such 
individuals is probably deceptive, since for precisely this category of 
freedmen the chance of being mentioned in the inscriptions was natu- 
rally much greater than for other groups. On the other hand it seems 
quite plausible to assume, with Galderini,** that the number of emanci- 
pations of household slaves was increasing during periods of political 
and economic decline and decreasing during periods of economic pros- 
perity: The constriction of profit opportunities would lead the master to 
reduce the size of his household and at the same time to shift the risk 
of hard times onto the slave, who now would be forced to maintain 
himself in addition to paying off his manumission price to the master. 
The agricultural writers 1 * mention manumission as a bonus for good 
service on the estate. Furthermore, a master may ofter\ have manu- 
mitted a household slave instead of utilizing him in his service because, 
as Strack has pointed out, he could thus rid himself of the legal, even 
if only limited, liability for his actions.* 7 / 

However, other slave strata must have been at least equally im- 
portant [as a source for the class of freedmen]. The slave permitted 
by his master to conduct an independent business enterprise in return 
for the payment of fees was in the best position to accumulate money 
toward the purchase of his freedom, just as this was true in the case of 
the Russian serf [similarly released from direct service]. For the master, 
at any rate, the services and fees which the freedman had to contract 
for certainly played the crucial role in the decision to grant manumission. 
The freedman and his descendants remained in a patrimonial relation- 
ship to the family of the former owner, which was dissolved only by 
the passage of several generations. He not only owed the master the 
contracted services and fees — which were often quite steep) — but his 
inheritable property was, at his death, as in the case of the unfree of 
the Middle Ages, to a considerable extent at the mercy of the patron. 
In addition he was under the obligation of fietas^ i.e., bound to the most 
varied forms of personal obedience which enhanced the social position 
of the master and directly increased his political power. The conse- 
quence was that during the rule of the demos, for instance in Athens, 
the freedmen were completely excluded from the citizenship rights and 
counted among the metics. But in Rome, where the power of the office 
nobility was never really broken, the freedmen were considered citizens, 



' ". \ '.■ Tin CIV;' !,.WOM-!.iinniJ 1 *A>'.L i>JMlNATJf>l\..' [ C(":. XVI 

H iu;i: on thr: i.v.-.ist'*;-. ! ''j. 'J ithe pfek* il^y were restricted to the four 
'ijcbs-i rr>bus-—L\ Jtiiiand which the office nobility granted out of tear 
: ;iat- J .iit! freedfiifi-! might otherwise consti'ute the hast.; for attempts ro 
:..i^,'iie ^ tyrannh. At least to the mind of the ancients such an attempt 
v.is n:ijde when the censor Appius Claudius undertook fin 308 B.C.] 
o give die ifeedmen an equal vote wiin the rest of ths citizens by 
^iiitrioLiiiHg thian through all the tribus. But this characteristic under- 
taking we cannot interpret, as does Edward Meyer,-" as an attempt to 
create & "Psriclean" demagogy, for the rule of Per ides rested not on 
ireedmen — in Athens excluded from all citizenship rights precisely by 
Democracy — but on the interests of the guild of full citizens in the 
''-viuicai expansion of the city. The ireedmen, by con ir. 1st, were homines 
rccouo^iici — j iLratum o^" peaceabk Ui^im. ssmen who ivtce much deser 
:o the economic bourgeoisie of the Middle Ages ai;d modern rimes than 
any full citizen of an undent Democracv. Hence the question in Rome 
was, rather, whether a ''people's captaincy" of the medieval tvpe was 
to be set up with their help, and the rejection of Appius Claudius' 
attempt signified that, as before, the peasant army and the normally 
dominant urban office nobility were to remain the decisive factors. 

Let us dwell a little more on the situation of the freedmen, who 
were, in a certain way, the most "modern'' of the andent social strata, 
the one which most closely approximated a bourgeoisie. Nowhere did 
the freedmen gain access to the city offices and the priesthood, nowhere 
-lid they enjoy full connubiwn, and nowhere did they obtain participa- 
tion in the military exercises (membership in the gymnasion) — even 
; ;ough in cases of extreme need they were called to arms — and in the 
iministration of justice. In Rome they could not become "knights," 
id almost everywhere they were disadvantaged vis-a-vis the fully free 
.-tizens in some aspects of trial procedure. Their special legal situation 
:ad the economic consequence that they were excluded not only from 
■he citizenship emoluments granted by the state or otherwise based on 
vol ideal status, but also from the acquisition of land and hence from 
he possession of mortgages. Revenues from land rent thus remained 
^he characteristic monopoly of full citizens precisely under Democracy, 
■n Rome, where the freedi en did have citizenship, but of an inferior 
type, their exclusion from the census status of an eaues (knight) signi- 
-ied that they could not participate (at least as entrepreneurs on own 
account) in the great tax farms and the state contracts which were 
monopolized by that status group. They thus confronted [the grande 
bourgeoisie of] the equites as some kind of plebeian bourgeoisie. The 
exclusion from landownership and the tax farming enterprises in effect 
meant that the freedmen found themselves barred from the typically 



v ] Ancient and Medieval Democracy i 3 5 9 

ancient, politically oriented type of capitalism, and by the same token 
pushed onto the path of a relatively modem, bourgeois manner of gain- 
ing 3 livelihood. Accordingly we find them to be the most important 
bearers of those forms of economic activity which display "modern" 
features. As a group, the freedmen can be best likened to our petty- 
capitalist middle classes (which at times may accumulate considerable 
wealth), in strong contrast to the typical Hellenic demos of full citizens 
who monopolized the politically conditioned rentier incomes: state 
pensions, per diem attendance fees, mortgage interest and land rents. 
The work training of slavery in combination with the possibility of 
purchasing one's freedom was a powerful spur for the acquisitive urge 
of the unfree in Antiquity, just as more recently in Russia. The interests 
of the ancient demos, by contrast, were military and political. As a 
stratum with purely economic interests, the freedmen provided an ideal 
public for the cult of Augustus as the "Bringer of the Peace." The 
dignity of the Augustales, which was created by the first Princeps, 
played somewhat the same role as in out time the title of "Purveyor to 
His Majesty the King."" 

In the Middle Ages a separate status group of the freedmen is found 
only in the early, pre-urban period. Within the cities the stratum of 
serfs, whose inheritance reverted partly or entirely to their masters, was 
held within narrow limits already in the earliest period of city develop- 
ment through the principle that "Stadtluft mackt frei," M and also 
through the city privileges of the emperors which forbade the lords to 
enforce their claims on the inheritance of townsmen. Under the domina- 
tion of the craft guilds urban serfs disappeared altogether. While for 
the ancient city, which was essentially a military association, a constitu- 
tion based on guild organizations would have been inconceivable be- 
cause it would have had to comprise free-born together with manu- 
mitted and unfree artisans, the medieval craft guild constitution was 
based precisely on the rejection of extra-urban status differences. 



6. The Polls as a Warrior Guild versus the 
Medieval Commercial Inland City 

The ancient polis, we might summarize, from the time of the crea- 
tion of the disciplined hoplite formations, was a guild of warriors. 
Wherever a city wished to carry out an active land-based foreign policy 
it had to follow the example of the Spartiates on a greater or lesser 
scale — namely, to turn burghers into a trained hoplite army. Argos and 
Thehes, during the period of their expansion, also created contingents of 



I 360 



THE CITY (NON-UIGlnMATE DOMINATION) ( Ck. )i 



warrior virtuosi, units which in the Tbeban case (of -die "Sacred Bar 
of Boeotia} were additionally strengthened by ties of personal friei 
ship. 31 Cities which possessed no such troops but had to rely on th 
array of burgher hoplites, like Athens, were on land restricted to 
defensive strategy. But everywhere the burgher hoplites formed t 
predominant class of full citizens after the downfall of the parriria 
Neither in medieval Europe nor anywhere else can an anaJogo 
stratum be found 

If Sparta was a permanent military camp, this was to some exte: 
also true of most other Greek cities. During the early period of, tf 
hoplite polis, the cities therefore developed an increasing closure towai 
the outside, which contrasted to the far-reaching freedom of movemer 
prevailing in Hesiod's days [probably late eighth century b.c.], m an 
frequendy they also imposed restrictions on the transferability of th 
warrior lots. This institution, however, decayed very early in most citie 
and then became altogether superfluous as paid mercenaries or, in thi 
maritime cities, naval service gained in importance. Yet, even then mili 
tary service remained ultimately decisive for fparricipation in] politica 
rule in the city, which retained its character as a militaristic guild. In 
Athens it was precisely the radical Democracy which supported an 
expansion policy — fantastic in the light of the small active population 
— that extended as far abroad as Egypt and Sicily. Internally, the polis 
as a militaristic association was absolutely sovereign. In every respect the 
citizenry dealt with the individual just as it chose. Inept economic 
conduct, especially squandering of the inherited warrior lot (the bona 
faterna avitaque of the Roman disemancipation formula), 3 * adoltery, 
poor education of the son, mistreatment of the parents, disrespect for 
the gods (.asebeia), insolent violence Qiybris) — in short, any kind of 
behaviour which might endanger the military and political morals and 
• discipline or provoke the wrath of the gods to the disadvantage of the 
polis, was sternly punished, in spite of the famous assurance in Pericles' 
funeral oration (as reported by Thucydides) : that in Athens every man 
was permitted to live as he wished-*' In Rome similar transgressions led 
to the intervention of the censor. As a matter of principle, thus, there 
certainly was no freedom of personal conduct, and wherever it did exist 
de facto, it was purchased, as in Athens, at the price of diminished 
efficiency of the burgher militia. Economically, too, the Hellenic city 
had complete disposal over the property of the individual: if it ran into 
debt, the city could still in the Hellenistic period pawn the property 
and even the person of the burgher to the municipal creditors. 

The burgher remained primarily a soldier. In addition to a water 
well, market (agora), town hall (^archeion) and theatre, a true city 



v ] Ancient and Medieval Democracy i 3 6 1 

needed — according to Pausanias — also a [military exercise ground, thej 
gymnasionS* It was nowhere lacking. In the market and the gymnasion 
the citizen spent the largest part of his time. In classical Athens the 
claims upon his time by the ekklesia, jury court service, council service 
and service in the state offices in rotation, and above all by service in the 
military campaigns — summer after summer for many decades — were of 
proportions which no other differentiated culture in history has ever 
experienced before or after. 

All accumulations of burgher wealth of any significance were subject 
to the claims of the polis of Democracy. The liturgical duties of the 
"trierarchy," which involved the outfitting, provisioning and command- 
ing of war-ships, and of the "hierarchy," which consisted of setting up 
the great festivals and theater performances, the forced loans in emer- 
gency situations, the Attic institution of antidosis** — all these subjected 
bourgeois accumulation of wealth to great instability. The absolute 
arbitrariness of justice administered by the people's courts — civil trials in 
front of hundreds of jurymen untrained in the law — imperilled the 
safeguards of the formal law so much that it is the mere continued 
existence of wealth which is to be marvelled at, rather than the violent 
reversals of fortunes which occurred after every political mishap. The 
latter were the more threatening to the wealthy since one of the most 
important property components, their slave holdings, would in such 
cases usually shrink due to massive escapes." At the same time, the polis 
democracy was in need of the capitalists for its supply and construction 
contracts and for the farming of its tax collection. But a purely national 
class of capitalists, such as Rome had in the equestrian order, the Hel- 
lenic cities never developed. The individual city states were too small 
to offer sufficient chances of gain, and most citie*, in contrast to Rome, 
sought to stimulate competition among contractors and tax fanners by 
admitting and attracting foreign applicants. 

Landed property, slaves (usually in rather modest numbers) who 
paid a tribute to the owner or were rented out as laborers (Nikias), 38 
ownership of ships, and capital participation in trade — these were the 
typical investment forms of burgher wealth. Citizens of the hegemonial 
cities also had opportunities for investment in foreign mortgages and 
landed property. Such investments in land abroad were possible only 
where the local land monopoly of the ruling burgher guilds had been 
broken. The acquisition of foreign land by the polis, which was then 
leased to Athenians or assigned to Attic cleruchs, and admission of the 
Athenians to land ownership in the subject cities, consequendy, were 
among the essential aims of the Athenian policy of maritime rule. 
Hence, under Democracy, too, land and human possessions were de- 



362 



THE CITY (NON-LEGITIMATE DOMINATION) [Ch. XV. 



cisive for the economic situation of the burgher. Wat, which could over| 
throw all these property relations, was chronic, and, in contrast to the 
chivalrous conduct of war in the patrician period, it was now pursued 
with extraordinary ruthlessness. Almost every victorious battle was fol- 
lowed by the mass slaughter of the prisoners, and almost every conquest I 
of a city ended with the killing or enslavement of the entire population. 
Each victory brought a sudden increase in the supply of slaves* A demos 
of this type could not possibly be oriented towards pacific economic ac- 
quisition based on rational and continuous economic activity. 

In this respect the medieval urban citizenry behaved in a thoroughly 
different way even during the first period of development. The medieval 
phenomena most closely related to those described above are found in 
the maritime cities, in Venice and, above all, in Genoa, whose wealth 
depended on their colonial power overseas. But even in these instances 
we are dealing primarily with plantation and manorial properties on the 
one hand, and with trading privileges and craft settlements on the other, 
but not — as in Antiquity — with cleruchies, revenues from military pay, 
or doles distributed to the mass of rhe citizens out of tributes exacted 
abroad. The industrial inland city of the Middle Ages, finally, is al- 
together alien to the ancient type. It is true, of course, that after the 
victorj" of the yofolo the entrepreneurial stratum of the upper guilds 
was often extraordinarily war-minded. But the decisive motivations here 
were the elimination of bothersome competitors, the domination of the 
trade routes or their liberation from tolls, and the gaining of trade 
monopolies and staple rights. It is also true that the medieval city, too, 
knew large-scale redistributions of the land holdings, both in the wake 
of foreign victories and of internal upheavals resulting in a change of 
the ruling party in the city. Especially in Italy: Landed properties of 
the vanquished party would be leased or purchased outright from the 
staif agency administering enemy holdings bv tbe momentarily victori- 
ous party, and each subjugation of a foreign commune would be utilized 
to increase rhe opportunities for land purchases by the victorious citi- 
zenr". But the radicalism of these ownership changes cannot he com- 
pared to the immense property revolutions which, even into the late 
period of the ancient city, accompanied each internal revoiufion and 
each victorious foreign or civil war. And above all, land acquisition itself 
no longer stood in tbe foreground of the economic interests driving for 
political expansion. 

Under the domination of the craft giiilds, the medieval city was a 
structure oriented immeasurably much more thsn any city of Antiquity 
— 3t least during the epoch of the independenr polis — towards acquisi- 
tion through rational economic activity. Onlv the demise of city auton- 



v ] Ancient and Medieval Democracy i 3 6 3 

omy in the Hellenistic and late Roman period can be said to have re- 
duced this difference somewhat, in that it destroyed the chances of 
creating economic opportunities for the burghers by means of an urban 
military policy. To be sure, in the Middle Ages, too, cities could at 
times be bearers of technological advance in land warfare — such as 
Florence, in whose army artillery was first employed. Even the [twelfth 
century] burgher levies of the Lombards against Frederick I represented 
an important innovation in military technique. But on the whole, the 
knightly armies remained at least equal to the city armies, and on the 
average — especially in the fladands 88 — they were definitely superior. 
Military strength might be a support for the economic activities of the 
city burghers, but in landlocked areas it could not serve as the founda- 
tion for these endeavors. Since the seat of the most potent military 
powers lay outside the cities, the medieval burgher was forced to rely 
for the pursuit of his economic interests on rational economic means. 



7. Ancient City States and Impediments 
to Empire Formation 



Four great power formations were created by the ancient polis: the * 
Sicilian empire of Dionysios, the Attic Confederacy, the Carthaginian 
and the Roman-Italic empire. The Peloponnesian and Boeotian con- 
federacies we can ignore since their status as great powers was ephem- 
eral. Each of these four formations rested on a different base. Ihe 
empire of Dionysios was a pure military monarchy based on a mercenary 
army and only in a subsidiary manner on the burgher* levy. It is thus 
not typical and of no specific interest for us. The Attic Confederacy 
was a creation of Democracy, and thus of a burgher guild. This fact 
inevitably brought about a policy of exclusive rights for citizens and 
caused the complete subordination- of the allied democratic burgher 
guilds of the confederate cities to that of the hegemonial city. Since 
the level of the membership tributes of the confederacy had not been 
fixed in advance by agreement, but was determined unilaterally in 
Athens — even if not by the demos itself, but by an elected commission 
that negotiated in an adversary procedure — and since, further, all law- 
suits of the confederates were tried before the Athenian courts> the 
small citizens guild of the capital became the unrestricted ruler of the 
wide empire. This was especially true once the contributions of own 
ships and manpower contingents. ^by the confederates had come to be 
replaced, with only a few exceptions, by monetary contributions, and 
the entire naval service had thereby become the preserve of the xitizenry 



1364 THE CITY (NON-tEGfttMATE DOMINATION) [Ch. XVI 

of the hegemonial polis.* A single decisive destruction of the fleet of 
this demos thereafter was bound to bring about the collapse of its rule 
over the confederacy. 

The great-power position of the city of Carthage rested on mercenary 
armies, while the pons itself was ruled in a strictly plutocratic pattern 
by great patrician houses who combined, in the typical ancient manner, 
gains from trade and naval warfare with large land holdings, which 
here consisted of plantations operated capitalisticaJIy with slave labor. 
(It was only in connection with the expansionary policy that the city 
went over to the minting of coins.) The relationship of the army 
leaders, to whose persons and fates the armies and their chances for 
booty were tied, with the patrician houses of the city could never be 
without those tensions which down to [the Imperial general] Wallen- 
stein fin the Thirty Years War] have always prevailed between the 
leaders of privately recruited armies and those who hire tjiem. This per- 
sistent mistrust weakened the military operations, so that the tactical 
superiority of the professional mercenary army could not be permanently 
maintained against the Italic burgher levies once there, too, a perma- 
nent single commander was put in charge and the military skills of 
the corporals and soldiers had risen to the level of the mercenary army. 

The suspicions of the Carthaginian plutocracy and the Spartan 
ephors against the victorious field commander finds a correspondence 
in the behavior of the Attic demos and the use it made of the institution 
of ostracism. The fear of the ruling strata that in the case of the de- 
velopment of a military monarchy they would have to share the state 
of servitude of the subjugated foreign peoples paralyzed the expansion 
power of the ancient pedis. Furthermore, all ancient hoplite communities 
shared the disinclination, based on the self-interest of powerful, eco- 
nomically profitable political monopolies, to open the citizens association 
by relaxing the restrictions on membership and merging their burgher 
rights with those of a number of other individual polis communities 
into a universal citizenship of an empire. All incipient developments 
toward inter-city community formation and citizenship rights could never 
quite overcome this basic tendency. For upon the citizen's membership 
in the individual military burgher-guild depended a]] his rights, his 
prestige and ideological pride in being a burgher, as well as his. economic 
opportunities. The rigid mutual exclusiveness of the cult communities 
was a further powerful check on any unitary state formation. That these 
developments could be overcome is shown by the Boeotian League, 
which developed a common . Boeotian citizenship, common officials, a 
legislative assembly made up of representatives of the individual citizen- 
ries, a common coinage and a common army, while retaining the 



v ] Ancient and Medieval Democracy i 3 6 5 

autonomy of the individual cities. However, this was an almost com- 
pletely isolated case within the Hellenic world. The Peloponnesian 
League signified nothing similar, and the relationships in all other con- 
federacies were shaped along precisely the opposite lines.* 1 It was a very 
special set of social conditions that permitted die Roman commune to 
conduct a policy which, in this respect, diverged considerably from the 
standard type of Antiquity. 

In Rome, incomparably much more than in any other ancient polls, 
a stratum of konoratiores of strongly feudal stamp remained and, with 
only temporary challenges, time and again reconstituted itself as the 
bearer of rulership. This found a very clear reflection also in the develop- 
ment of the institutions. The victory of the plebs had not brought about 
a "deme" constitution in the Hellenic sense. While formally it gave 
domination to the peasants living in the tribus, in fact the rule fell into 
the hands of those owners of rural land rents who were permanently 
resident in the city and therefore could continuously participate in its 
political life. They alone were economically "dispensable" and thus 
capable of filling political offices. In the Senate, as the assembly of the 
high officials, they were the core of the developing office nobility. In 
addition, feudal and semi-feudal dependency relations retained unusual 
strength and significance. Clientage as an institution, although increas- 
ingly deprived of its former military character, played an important role 
in Rome down into the very late period. Furthermore, as we have seen, 
the freedmen remained substantively under almost slavery-like jurisdic- 
tional authority of their former owners: Caesar could have one of his 
freedmen executed without provoking any objections. The Roman office 
nobility ever more pronouncedly, as time went on, came to be a stratum 
which, in terms of the size of its landed possessions, would~find a weak 
analogy only in the early Greek interlocal nobility, in such figures as Milti- 
ades, who at the time were decried as "tyrants." The age of Cato Maior 
[second century b.c] still recJconed with estates of moderate dimensions, 
although they were far larger than the estate which Alcibiades inherited 
or the rural estates assumed to be of normal size by Xenophon." But 
undoubtedly the individual noble families were already at that time 
cumulating in their hands great numbers of such holdings; beyond this, 
they participated directly in such commercial undertakings as their status 
position permitted, while through their slaves and freedmen they were 
indirectly also partners in business affairs of all kinds everywhere in the 
world which were not in accord with their status. None of the Hellenic 
noble strata could even distandy approach the economic and social level 
of the Roman patriciate of the later t republic. On the expanding estates 
of the Roman nobility an ever growing number of small tenant-farmers 



1366 THE CITY (NON-LEGITIMATE DOMINATION) [ Ch. XVI 

(coloni) was settled, outfitted by the lord and closely supervised in their 
economic management, who after each crisis found themselves more 
deeply in debt until their position on the land and of complete depend- 
ency on the lord had de facto become hereditary. In the Civil Wars they 
were levied by the party leaders to provide . military support — just as 
the clients of the army leader had been called up in the Numantian 
war fa century earlier]. 

But it was not only individual persons who stood in client relation* 
ship in great numbers- The victorious field commander took allied cities 
and countries under his personal protection, and this patronage remained , 
in his family. Thus the Claudians held Sparta and Pergamon in client- 
age, and other families had other cities under their patronage, receiving 
their ambassadors and representing their wishes in the Senate. Nowhere 
else in the world has political patronage of this kind been consolidated 
in the hands of individual, formally private families. Long before the 
monarchy, private rulership powers existed here such as are ordinarily 
possessed only by monarchs. 

Democracy was never able to breach this power of the office nobility 
based on all kinds of clientage relationships, Rome never reached the 
point where an attempt to crush the power of the noble houses in the 
Attic manner could be thought of — namely, by incorporation of the 
clans into territorial units like the "demes" and elevation of these units 
into constituencies of the political association. Nor was any attempt ever 
made to constitute, as in Attic Democracy after the destruction of -the 
power of the Areopagus, a committee of the demos as the administrative 
agency and a college of jurors, drawn by lot from the entire citizenry, 
as the judicial authority. In Rome the Senate — the institution which as 
representation of the office nobility most closely corresponded to the 
Areopagus — kept control over the administration firmly in its hands. As 
a permanent body it was at an advantage vis-a-vis the annually changing 
elective officials, and even the victorious military monarchy did not 
immediately attempt to thrust these patrician houses aside, but only 
dimmed them and restricted them to the administration of pacified 



provinces. 



'The patrimonial structure of the Roman ruling stratum found ex- 
pression also in the manner of conduct of official business. Initially the 
office staff ivas probably provided by the officials themselves. In the 
civilian administration the appointment of the subalterns was later 
largely taken out e?f their hands, but the military commander must to a 
considerable extent have been aided in the execution of his duties by 
his clients and freedmen as well as by a free following of personal and 
political friends from allied patrician houses, for on campaigns it was 



v 3 _ Ancient and Medieval Democracy i 3 6 7 

considered permissible to delegate official duties to personal appointees. 

t The princeps of the early period of military monarchy also conducted 
his administration to a large part with the help of his freedmen, who 
at that time indeed reached the apex of their power. Later this was 
subject to increasing restrictions. But especially under the rule of the 
Claudians, who had always had a large clientele, the employment of 
dependents reached such proportions that one Claudian emperor could 
threaten the Senate with the plan also formally to put the entire ad- 
ministration into the hands of his personal subjects. Just like the patri- 
ciate of the late republic, the frinceps found the fulcrum of his eco- 
nomic power in his manorial land holdings, which especially under 
Nero grew to huge dimensions, and in such territories as Egypt which, 
even if they were not legally his personal domains (as has been main- 
tained), were in fact administered in a patrimonial fashion. These 
patrimonial and feudal traits of the Roman republic and its administra- 
tive establishment of konoratiores, which still exerted their effect in such 

» late periods, were a characteristic with an almost unbroken tradition 
from far back when, to be sure, they were confined to much smaller 
dimensions. This was the source of important differences between Rome 
and the Hellenic world. 

Typical differences appear also in the style of life. In Hellas, as we 
saw, the nobleman began in the time of chariot warfare to exercise in 
the ring. The agon (contest), a product of the individual knightly com- 
bat and the glorification of knightly heroism, was the source of the 
most important traits of Hellenic education. The Middle Ages had 
their tournaments, but in spite of similarities — -such as that in both 
cases chariots and. horses occupy the foreground— the very significant 
difference remains that ir. Hellas certain official festivities were always 
celebrated only in this form, as agones. The advance of hoplite military 
techniques merely caused *'v* content of the agon to expand: now all 
disciplines which were drilled in the gymnasion — spear combat, wres- 
tling, fist-fighting, and above all foot racing — assumed this form arid 
were thereby made socially acceptable. The ritual chants in honor of the 
gods were supplemented by a- a on?s in v-ac:ny. To he sure, the aristocrat 
shone through the quality of bis possessions: the horses and chariots 
which he sent into tise race. Nevertheless, at least formally, the plebeian 
disciplines had to be acknowledged 3^ of squal rank. The a%on came to 
be organized with prizes, umpires and rules of the game, and permeated 
ail spheres of life. Beside the Horrenc epic^ it developed into the most 
important national bond of the Hellenic world as against that of the 
"barbarians." Already the earliest appearances of Greeks on works of 
the plastic arts seem to show nakedness — the absence of all clothing 



1368 THE CITY (NON-LBGITIMATB DOMINATION) [ Ck. KVl 

except aims — as a trait specific to them. From Sparta, the place of the 
most intensive military training, this spread over the entire Greek 
world; even the loincloth fell away. 

No other community on earth ever developed an institution like 
the agon to such importance, to the point where it dominated all inter- 
ests, the practice of the arts and of conversation up to the Platonic 
"dialectical" contests. To the final days of the Byzantine Empire, circus 
parties were the form in which the masses organized their disagreements 
and the carriers of revolutions in Constantinople and Alexandria. 

The Italic peoples never knew this institution, at least not in the 
form which it had taken in the classic period of Hellas. In Etruria, the 
city nobility of the Lttcumones** ruled over despised plebeians and had 
paid athletes perform at its festivals. In Rome, too, the ruling nobility 
rejected such "mingling-with-the-masses": its prestige feelings would 
never have suffered the utter lack of distance and solemnity involved 
in the naked gymnastics sessions of those "GraecuU," as little as it would 
ever have stooped to the Greeks' cultic chant-and-dance, their Dionysian 
orgiastic cults, or the abaUenath mentis of ecstasy. In Roman political 
life the rhetoric and give-and-take of the agora and ekktesia played as 
little a role as the competitions of the gymnadon. Speech-making came 
up only later, and then mostly in the Senate, where it was completely 
different in character from the rhetorical art of the Attic popular leaders. 
Tradition and experience of the Elders, the former officeholders above 
all, determined politics. Old age, rather than youth, set the tone of 
social forms and the character of dignity. Rational deliberations, rather 
than the rhetorically stirred lust for booty of the demos or the emotional 
excitement of the young warriors, tipped the balance in Roman politics. 
Rome remained under the direction of the experience, the deliberation, 
and the feudal power of the honoratiores. 



NOTES 

1. This subtitle does not appear in the separate 1921 publication of the 
"City," which was divided into only four sections; the text here simply con- 
tinued. 

2. Silver mines in southeastern Attica which belonged to the state. The 
distribution of the revenues was discontinued in 485 B.C., when Tbemistocles 
persuaded the demos 10 apply them to the building of the fleet&Cf. Ehsenfaerg, 
The Greek State, 8 5; GAzSW, 18. 

3. In explaining the proletarian as one who is only a "descendant" (proles) 
— but not one of the inheritors — of a full citizen, Webec deliberately reverses the 
usual "etymology" of the term, current already among the Ancients, which ex- 
plains the yroietarms as one who ««s nothing to offer to the state but his proles 



v ] Ancient and Medieval Democracy ] 3 6 9 

or descendants. Cf. also GAzSW, 194, 215. In a recent appraisal of Weber's con- 
tribution to historiography, a German classical historian called this an "ingenious 
interpretation . . . [which] historical science has neglected very much to its own 
detriment." See Alfred Heuss, "Max Webers Bedeutung fiir die Geschichte," 
Historiscfce Zeitschrift, vol. 201 (1965), 552. 

4. In 444 B.C. a large shipment of grain from the Libyan king Psamme- 
tichos induced a rash of prosecutions under a Periclean law of 451 B.C. which 
had excluded from citizenship all burghers with a foreign-bom mother. Accord- 
ing to Plutarch (Pericles, ch. 37) about 5,000 were denied citizenship status and 
sold into slavery at this occasion, while 14,040 inhabitants were confirmed as 
citizens entitled to the emoluments of the grain distribution. Other grain gifts 
seem to have caused similar incidents. Cf. Ed. Meyer, Geschichte des Altertums, 
IV/i (5th ed.; Basel: Schwabe, 1954), 665. 

5. A construction lag in the building of this temple on the Acropolis brought 
the appointment of an investigatory commission in 409 b.c. to report on progress, 
fragments of whose report (together with expense accounts for the project.) are 
extant on a marble slah. In this rare document, which among other things also 
gives wage rates, full citizens are shown working even under the foremanship of 
slaves. For Weber's view on the problem of slavery in Hellas in general (and a 
further discussion of this document), cf. GAzSW, r 39- 146; for more recent 
discussions in English, see A.H.M. Jones, Athenian Democracy, 10-20 and ch. 
IV, passim, and Victor Ehrenberg, The People of Aristophanes; A Sociology of 
Old Attic Comedy (New York: Schocken Books, 1961), ch. VII. 

6. "Mystery congregations" in Hellas: for instance, the orgiastic cults of 
Demeter and Dionysos; on the participation of slaves see, e.g., Ehrenberg, The 
People of Aristophanes, op. tit., 1 74, 1 89k The Roman collegia were cult and 
funeral societies, sometimes purely social clubs, of the petite bourgeoisie; see art. 
"Collegium" in Pauly-Wissowa, RE, IV (1901), cols. 380-480, esp. jSjfF. 

7. The centuriae ("hundreds"), originally merely army units, were the 
voting units of the Roman people assembled in its military array (comitia cen- 
turiata). Besides the five centuriae of non-combattants (fabri, musicians and re- 
serve) and the sixteen units of the mounted force, it consisted of 172 centuriae 
of foot soldiers in five "classes" determined on the basis of wealth. The unequal 
manpower strength of the individual units worked to the disadvantage of the 
poorer classes. The possible derivation of the centuriae fabrum from older col- 
legia of these trades was suggested by Mommsen, Romisches Staatsrecht, III, 287, 
but disputed by other historians (cf. Komemann in Pauly-Wissowa, RE, IV 
(1901), 442). A pre-Solonic creation of a status group of demiourgoi is ascribed 
to the mythical hero Theseus by Plutarch (Theseus, ch. 25), but the historicity 
of its existence is doubtful; on this, see also GAeSW, 107, 1 i6f., ii2r\ 

8. The decemviri le$bw scribendh, the perhaps legendary two colleges of 
ten who wrote the code of the Twelve Tables, ca. 450 b.c. 

9. In Prussia (and some other German states), large individual or several 
contiguous landed estates were in Weber's day often exempted from the terri- 
torial administrative organizations at the lowest level (the rural communes or 
Gemehtden) and formed separate "estate districts" in which the Junker owner, 
or one of their number, took over the public-law functions of the communes. The 
Gvtsbezirke survived the 1918 revolution and were not abolished until 1927, 
when they still numbered some 12,000. 

10. The assembly of the Roman people in the tribal array (comitia tribute), 
younger than the assembly in the military array (_comitia centuriata), was origi- 
nally used for the election of lesser officials, and increasingly also for legislative 



13 7° THE city (non-legitimate domination) [ Ch. XVI 

Functions. On the division of functions between the different assemblies, see 
Mommsen, Romisches Staatsrecht, III, 300-368; G- W. Botsford, The Roman 
Assemblies (New York: Macmillan, 1909), chs. X-XIV. 

11. The standard translation "knight" for the Latin eqttes is somewhat un- 
fortunate because of the inappropriate feudal associations of the English term; 
the etfuites were the upper commercial classes who derived their name and their 
political, economic and social prerogatives from the fact that they were wealthy 
enough to do their military service on horseback. 

12. In one of the measures taken to gain the support of the commercial mid- 
dle class, Gaius Gracchus restricted the jury roll for the extortion court (quaestio 
repetundarum, for which see above, sec. w:3; n. 13), from which fifty lay judges 
were chosen in each trial, to the eqttites. This measure was rescinded in the Sulfan 
reform, when the bench again reverted to the senatorial nobility. 

13. See, e.g., Plutarch, Pericles, chs. 13-14, where the trades that were to 
benefit are enumerated; cf. also the discussion in French, The Growth of the 
Athenian Economy, 1 53SF., where this passage is quoted. 

14. "Erbanwartschaften der Sippen" in the text. However, elsewhere Weber 
unambiguously states that there were no reversion or subsidiary inheritance rights 
of the sib with respect to purchased land, while there probably was a limitation 
on testamentary disposal in favor of die sons (cf, GAzSW, 128-133, also nof. 
on the klerosy, hence we assume this to be a misreading of "der Sbhne," 

15. As Weber says elsewhere, the village was destroyed in favor of dispersed 
settlement "of, stt venia verbo, an 'Americanist ic' character" on individual home- 
steads (GAzSW, 203). The thesis of an original village- type settlement structure 

' seems to be a polemical assertion based on Weber's early studies of the Roman rural 
constitution. Cf. GAzSW, igsf. 222f. 22of., where this is spelled out in greater 
detail. 

16. One factor in this correlation of maritime power with the rise of the 
property-less urban strata, which Weber stresses elsewhere, is the fact that naval 
service, in contrast to service in the hoplite army, "presupposes only negligible 
expenditures on self -equipment" of the citizen; see GAzSW, 40. 

17. Weber is thinking of the type of "colonization" characteristic of Antiquity: 
the foundation of "daughter-cities" through the settlement of groups of citizens 
on a foreign shorei Medieval colonization and colonizing city foundation, espe- 
cially in the Slavic territories of eastern Germany, in general was the work of the 
landowning nobility and of the knightly orders. 

18. On the polis foundations of the Seleucid empire, "and their relationship 
to the "tribal" territories, see also GAzSW, i6off.; Ehrenberg, The Greek State, 
ch. HI:3, passim. 

19. Schuldknechte. Weber apparently uses this term both for the full debt 
slave and the -nexus who was working off a debt. On the nexum (debt bondage) 
contract, cf. "Soc. of Law," above, ch. VIILw, n. 33; also GAzSW, 192, 210, 
220. 

20. E.g., the Solonic debt cancellation and repurchase of citizens sold abroad, 
discussed in GAzSW ii7f., 133s.; cf. also French, The Growth of the Athenian 
Economy, to— 18. 

21. E.g., the Roman lex Poetelia of 326 b.c., mentioned above, "Soc. of 
Law,"ch.VHI-.K,n. 38. 

22. On the Roman clientes, cf. CAzSW, 202—209. 

23. The younger Scipio Africanus, in the campaign against Numantia in 
Spain; sec also GAzSW, 206. 



. . ._A(!Si;d p . , wL:>.i.-i.ini, La inotay?\ih^ior'i. i, la i-OMdt/i&i^. <}?i Uk?r> : ; r ; Ofc^iu 
■ '.■; .[:...t.;i. Uliiot- :■ ' x^li Ed , :9o8), sooff. 

^ ■-. . C^iid^/i;"fi r . r .^;, it*, ^y and ^itt.-iii-Jt. 

■;-. i fn; Ho^iaii 'cnptoms rei rustical r-. ,ti*rs of iit'^iaii cii estate ina.iage- 
jr.iTii. v..-:ir :\",j.^r o; the raid-second ce«iUL*y s f; i 1 >>',',,. a c-">f.it;ri;p.>irtry o: 
Ovr.-o and Caesar, Columella of tho early enipu-e, *;\d pAliaoius ..£ tine fourth 
cjr.iury a.d. vVebtr made a close study 0: these at.ihms for his cany work, Die 
«*«»(*•»£ AgTnrg^cfci'cW iw iJtr^ Bedeitimig fur dm &taati- unci Priv«trec/i£ 
i.. Stuttgart: Enke, 1891). The above statement h probably derived from Colum- 
ella's de re rustica. hV. 1 T ch. viii. 

17. Max L. Strac'-., "Die Freigehssenen in ihrer Bedeutung fur die Gsseil- 
--..i-haft d^i Alteri," lHaorische Zeuschrift, vol. >i2 (1914), ;-^«, esp. 26. For a 
iiisctii-sior in Cn^i^.i of ihe slave-owner's legal iiabiiuies, see W. W. Buckland, 
T',f .'inw?«» J.mti -if Stoery. Tfi^ Ce>H<&fio» nf tfie Slave in Private Law from 
v'/^;: ta fc->:.ii*r>ii;i'i 'Cambridge. Ths Lhiivtwitv Pr^ss, i 90"^. 
£-■- '>■>■--■■:■ '. '■ '■-'■•■!<. '--J r i';..:>; I^i-f-. :.. ;:;:•: '. ;:,_■,. ;;;f, 
-.:■■ .App'Jntr.ierir to tiie board ei the s»;viVi /iugwsfaiej was a dignity or the 
p;-ovii.,oa] municipalities which was ptimaniy conferred upon weii-to-tio fv^ed- 
roi'tj, [ipon application ;:r.d against payment of a "fee for -the honor" (sbmdw 
yo «.';« ore). In addition to enriching the treasury, the incumbents had to ar- 
range and finance games-, their compensation was the title and a ring-side seat 
in the Socal circus. The archetypal Augustaits was Trimalchio, the vainglorious 
nouveau riche so savagely depicted in Petrous Satyricon. Mommsen called the 
institution "a fictitious municipality ... in which nothing was real but the 
ftxpens^ and the pomp;" it was created to give these strata a semblance of par- 
ticipation m the municipal offices from which they were otherwise excluded. Cf. 
Mommsen, Romisches Staatsrecht, . Ill, 452-457; art. "Augustales" in Pauiy- 
Wissowa, HE, II (1896), 3.3501*. 

30. Cf. above, sec. m:i, n. 3. 

31. The Upoi A.0'^0? of 300 warriors, a famous elite unit and the permanent 
garrison of the Theban acropolis, is said to have been made up of pairs of lovers 
— a fact which is thought to have contributed to their bravery; see Plutarch, 
Pe lopida s, ch. 1 Sff. 

32. Hesiod relates that his father had migrated from Asia Minor to Boeotia 
and settled there as a small landowner (Works and Days, 633-40); this is often 
taken as evidence for the free transferability of land and freedom of personal 
movement in an early period. See also GAzSW , 1 10. 

33. The "paternal and ancestral goods;" the formula used in a trial to have 
an adult put under tutelage apparently mentions squandering of these as one of 
the causes for this action. Cf. GAzSW, 198. 

34. Thucydides, Peloponnesian War, bk. II, ch. 37- 

35. Pausanias, Description of Greece, bk. X, ch. 4: 1. 

36. The curious Athenian procedure for protesting a tax assessment or the 
imposition of a liturgical duty. On a day especially set for this purpose, the 
prospective taxpayer or trierarckos had the right to indicate another citizen who, 
in his opinion, was more liable or financially more capable of hearing the burden 
in question. The latter then had the choice either to accept the burden or to 
exchange his entire wealth against that of the protesting citizen, who then be- 
came liable himself, or, finally, to put the matter up to a court to decide — in 
which case both parties could seize each other's wealth until the matter had been 
settled, Cf. art. "Antidosis" in Pauly-Wissowa, RE, I (1894), 2396-2398. 

37. According to Thucydides (Pelop. War, hk. VII, ch. 27), 20,000 Athen- 



i 3 7 2 THE city (non-legitimate domination) [ 01. XVI 

ian slaves, "to the largest part artisans," escaped after the Spartan occupation of 
Decelea in 413 b.c. Modern authorities disagree as to whether or not this num- 
ber must be spread over the entire nine-year occupation; cf. Ehrenberg, The 
People of Aristophanes, i8?f., French, The Growth of the Athenian Economy, 
I38f. 

38. Hich Athenian statesman and army leader during the middle phase of 
the Peloponnesian war; he is said to have owned 1,000 slaves: GA2SW, 137, 
178; Plutarch, Ntkios, ch. 4; Xenophon, Vectigalia, IV. 14-15. 

39. I.e., in contrast to mountainous areas, as in Switzerland, where burgher 
and peasant armies first achieved some success against the knightly cavalry (e.g., 
defeat of the Habsburgs by the Swiss cantons at Morgarten, Sempach and Nafels 
in 1315, 1386 and i388).Cf.aIsoGAzSW,i59,n. 3. 

40. On the economic aspects and the tributary arrangements of the first 
Attic (or Delian-^after its early hesdrjuarters) Confederacy, 478-404 B.C., see 
French, The Growth of the Athenian economy, 81-106 and die literature cited 
i86f. 

41. For an analysis of the various Hellenic leagues and confederacies, cf. 
Ehrenberg, The Greek State, 112-131. This author, incidentally, denies the 
existence of a federal citizenship in the Boeotian League (ibid., 123). 

42. Altibiades (bom ca. 450 b.c), who was in ins day considered a very 
well-off young man, inherited an estate estimated at roughly 7; acres (GAzSW, 
137), about half the size of the estates discussed by Cato (jGAtSW, 210). Both 
Xenophon (ca. 430-360 B.C.) and the elder Cato (23 4- f 49 B.C.) left treatises on 
estate-management. About the former, however, Weber observes (GAzSW, 148) 
that he understood no more of agriculture "than a retired Prussian officer who 
settles down on a Kittergut," a comparison not intended to be complimentary. 

43. Latinized Etruscan designation for kings ox local barons; of uncertain mean- 
ing (art. "Lucumo," Pauly-Wissowa, HE, XIII (1927), 1706). Their athletes 
were, "in the opinion of specialists, by their very physiognomies identified as 
professionals who . . . performed against payment before the lords as a viewing 
public" (GAzSW, 125). 



Appendices 



APPEN 



DIX 1 



TYPES OF SOCIAL ACTION 
AND GROUPS 



The terminology of the second, and older, part of Wirtschaft und 
' Gesellschaft is that published in the 191 3 essay on "Some Categories of 
Interpretive Sociology" (Logos, IV, reprinted in GAzW). In the older 
manuscript, "social action" is Ge-meinschaftskandeln, whereas in the newer 
Part One it is soziales Handeln; in the older Part Two, Gemeinschaft 
is a general term for "social group." The following is a translation of the 
definitions of Gemeinschaftshandeln, Geselhchaftshandeln (rationally 
regulated action), Vergesellschaftung (association), Zweckverein (volun- 
tary association), Getegenheitsvergesellschaftung Qad hoc agreement or 
association), Massenkandeln (collective behavior), Einverstandnishandeln 
(consensual action), Anstalt (compulsory association or institution), and 
Verband (organization) from the Logos essay. The page numbers after 
the excerpts refer to the reprint in GAzW. 

We shall speak of Gemeinschaftsnandeln (social action) when 
human action is meaningfully related to the behavior of other persons. 
Social action does not occur when two cyclists, for example, collide un- 
intentionally; however, it does occur when they try to avoid the collision or 
sock one another afterwards or negotiate to settle the matter peacefully. 
Social action is not the only type that is pertinent for causal explanation. 
However, it is the primary object of interpretive sociology. An important 
(but not indispensable) component of social action is its meaningful 
orientation to the expectation that others will act in a certain way, and 
to the presumable chances of success for one's own action resulting 
therefrom. Action can be understood rather clearly — and this is an im- 
portant type of explanation — when there is an objective chance (i.e., more 
or less probability as expressed in a "judgment of objective possibility") 
that these expectations are indeed well-founded. ... In particular, 

('3751 



I 3 7 *> TYPES OF SOCIAL ACTION AND CROUPS [ Aff. I 

in stru men tally rational action is oriented toward such expectations. In 
principle, it appears at first sight irrelevant whether a person's action 
is guided by the expectation that certain natural events will occur, with 
or without his purposive intervention, or that human beings will act 
in a certain way. But if a person acts subjectively rational, his expecta- 
tions in relation to the behavior of others may also be based on the 
assumption that be can expect a subjectively meaningful behavior on 
their part. In other words, he may believe that he can, with different 
degrees of probability, predict their behavior from certain meaningful 
relationships. Specifically, his expectation may be subjectively based on 
an "understanding" with another actor (or others); he then believes that 
he has reason to expect compliance with the "agreement," according 
to the meaning which he himself attributes to it. This imparts to social 
action a specific quality, because it enlarges the realm of expectations 
within which^he actor thinks he can orient his own aetions rationally. 
However, the possible (subjective) meaning of social action is not 
exhausted by the orientation toward the presumable action of others. In 
the limiting case, action may be oriented to the "value" of an act (as a 
matter of duty, for example); then it is oriented not toward expectations 
but values. Similarly, expectations need not refer to actions but may 
also concern feeling states (for example, giving pleasure to a person). 
Empirically fluid is the transition from the ideal type of a meaningful 
relationship between one's own action and that of others to the case 
in which another person is merely an object (for example, an infant). 
For us, behavior that is oriented toward meaningful action is only the 
rational limiting case. 

Always, however, "social action" CGemeinschaftshandeln) is for us 
an individual's behavior, either historically observable or theoretically 
possible or likely, in relation to the actual or anticipated potential be- 
havior of other individuals. . . . (-pp. 441-442*). 

Social action is Gesellschaftshandeln (rationally regulated action) 
insofar as it is (0 meaningfully oriented toward rules which have 
been (2) established rationally with a view toward the expected behavior 
of the "associates" (yergeselkchaftete), and insofar as (3) the mean- 
ingful orientation is indeed instrumental^ rational on the part of the 
actor. Very tentatively, established rules (in the purely empirical sense 
envisaged here) may be defined as follows: they are either (a) onesided 
demands of some persons toward others; in the rational limiting case, 
they are explicit orders; or (b) a mutual declaration to the effect that 
a certain kind of action will be undertaken or is to be expected; in the 
limiting case, this involves an explicit agreement. . . . (pp. 442-443). 

The rational ideal type of Vergesellschaftung (association or con- 



Types of Social Action and Groups i 3 7 7 

sodaoon) is for us the "voluntary association" (Zwecfeverein): a kind 
of Gesellsckaftshandeln in which all participants have rationally agreed 
to the statute that defines the purposes and means of the association. . . . 

(p. 447)- 

An agreed-upon rational action (VergesellsckafHrng) does not always 
result in the establishment of a voluntary association, which, according 
to our definition, must have (1) general rules and (2) a staff of its own. 
Agreed-upon rational action may be ad hoc: Gelegenhettsvergesellschaf- 
tung. For example, it may involve merely the quick execution of a 
revenge killing. In this case all characteristics of voluntary association 
are missing, with the exception of a rational plan (Ordnung), which is 
for us the decisive criterion. A convenient example for the progression 
from Gelegenheitsvergesellschaftung to the Zweckverein [from rational 
ad hoc agreement or association to continuous association] is the indus- 
trial cartel: It ranges from the simple, one-time agreement of various 
competitors not -to lower their prices below a certain level to the "syndi- 
cate" with its huge assets, a sales organization of its own, and a complex 
organizational structure (jp. 450). 

All analogies with the "organism" and otrjer similar biological con- 
cepts are condemned to sterility. In addition, it is by no means only 
social action (Gemeinschaftshandeln) which makes it appear "as if" 
action was determined by a consensual order; rather, such an effect can 
be produced equally and even more drastically by the various forms of 
"homogeneous" and "collective" behavior (Massenhandeln) which are 
not part of social action. 

For "social action," in our terminology, involves the purposive ■ 
(sinnhafte) orientation of the action of individuals to that of others. 
Hence, it is not sufficient that several persons behave in like manner; 
nor does every kind of interaction, including pure imitation, constitute 
social action. No matter how homogeneous the behavior of members 
of a "race" may be in some way, a "racial community" exists for us 
only if the actions of the members are purposively related to one 
another; in the most elementary case, we require that the members 
segregate themselves from the "racially alien" environment because 
other members also do it (regardless of the exact manner and the degree 
of segregation). When a large number of pedestrians react to a shower 
by opening their umbrellas, we do not deal with, social action but with 
"homogeneous mass behavior." The same is true of behavior provoked 
by the mere "influence" of others, for example, in the case of a panic 
or when a mass of pedestrians succumbs to "mass suggestion" in a sud- 
den crowding. In such cases in which the behavior of individuals is 
influenced by the mere fact that others behave in a certain way, we 



13 7^ TYPES OF SOCIAL ACTION AND GROUPS [ Aff . I 

shall speak of "mass-conditioned" or collective behavior (massenheding- 
tes Sickverhtdten). For it cinnot be doubted that the mere fact of the 
spontaneously acting mass, even if it is geographically separate and re- 
lated only by the press, can influence the'behavior of all individuals. 
It is not our present task to analyze these phenomena; rather, this is 
the subject matter of mass psychology. . . . (pp. 454-455). 

Herrschaft (domination) does not mean that a superior elementary 
force asserts itself-in one way or another; it refers to a meaningful inter- 
relationship between those giving orders and those obeying, to the efTect 
that the expectations toward which action is oriented on both sides can . 
be reckoned upon. . . . (p. 456'). 

"Consensus" (Einverstdndnis') exists when expectations as to the 
behavior of others are realistic because of the objective probability that 
the others will accept these expectations as "valid" for themselves, even 
though no explicit agreement was made. The reasons for such behavior 
on the part of the others are irrelevant for the concept. .Social action that 
rests on such likely consensus will be called "consensual action" (Et«- 
vers tdndnishan deln). 

Of course, the actual degree of consensus — in the sense of calculable 
probabilities — must not be confused with the subjective reliance of an 
individual that others will treat his expectations as valid. In the same 
way, the empirical validity of an agreed-upon order must not he con- 
fused with the subjective expectation that others will abide by its 
intended meaning. In both cases, however, a relationship of intelligible 
adequate causation obtains between average objective validity (as under- 
stood in terms of "objective possibility") and average subjective ex- 
pectation. 

In any given case, a person's action may only approximate a con- 
sensus or only pretend to one, just as it can happen with an explicit 
agreement. This will affect the degree and unambiguousness of the 
.empirical validity of the consensus. Persons linked together through a 
consensus may deliberately violate it, just as "associates" may disregard 
their agreement. As the thief (in the example used earlier) orients his 
action to the legal order by concealment, so a disobedient person may 
"agree" on the facts of power by resorting to subterfuge. Hence, con- 
sensus must not be taken for "satisfaction" of those adhering to it. Fear 
of dire consequences may bring about "adaptation" to the normal mean- 
ing of oppressive rule; it may also lead to a personally undesirable but 
formally "free" agreement. Of course, persistent dissatisfaction en- 
dangers the stability of a coercive regime, but it does not invalidate the 
consensus as long as the powerholder can objectively count on the 
(adequate) execution of his commands. . . . (pp. 457-458^. 



Types of Social Action and Groups '" i 3 7 9 

Not every social action falls into the category of consensual action; 
it does so only if, in the average, it is indeed oriented toward the proba- 
bility that a consensus exists. Racial segregation qualifies as an example 
if a person can take it more or less for granted that the participants will 
typically treat it as obligatory; otherwise, it would be an instance of mass 
behavior or simply of social action without consensus. ... Of course, 
not every external "acting together" of several persons is social action or 
even consensual action. Collaboration is by no means essential for the 
concept of consensual action. For example, it is absent in all cases in 
which a person orients himself to the action of unknown others. . . , 
(pp. 458-459). 

The transition from consensual action to agreed-upon rational action 
is fluid — after all, the latter merely constitutes the special case of 
regulated action. The consensual behavior of streetcar passengers who 
take the side of another passenger in an argument with the conductor 
turns into agreed-upon rational action if they subsequently decide on 
a joint complaint. Even more so, "association" (VergeseHscJwftimg) oc- 
curs whenever an arrangement is made in a purpose-rational manner, 
even though its extent and meaning may vary greatly. Thus, an assocflf- 
tion (or consociation) comes into being as soon as a newspaper (with 
a publisher, editor, staff and subscribers) is founded for members of a 
racial group who have segregated themselves consensually hut without 
formal agreement; now the previously amorphous consensual action is 
directed with different degrees of effectiveness. The same happens when 
an "academy" in the manner of the Crusca [in Tuscany] and "schools" 
teaching grammatical rules are created for a language group, or 
when an apparatus with rational rules and a staff is established for a 
Herrschaft. Conversely, almost every association tends to create con- 
sensual action beyond the realm of its rational purposes (this will be called 
"consensual action determined by association"). Every bowling club 
creates conventions, that is, social action oriented toward consensus, 
which transcends the Vergesellsckaftung. . . . (pp. 460-461). 

By no means is it permissible to identify social action, consensus and 
association with the idea of being for or against one another. For us, 
consensus is not identical with exclusiveness toward others, nor, of course, 
is amorphous social action. It depends upon the individual case whether 
consensual action is "open" to others or whether and to what degree it is 
"closed" because the participants make joining impossible through a 
mere consensus or an agreement (Vergesellsckaftung). A language 
group or a market are (vaguely) delimited in one way or another. As a 
rule, not every living person can be considered an actual or potential 
participant in the expectations of the consensus, but only an indeter- 



1380 TYPES OF S-.i'.Uk. ACTION AND GROUPS [ App. I 

minate number of persons. However, the members of a language group 
are usually not interested in excluding others from the consensus (al- 
though, of course, they may want to exclude them in a given conversa- 
tion), and market interests often desire the "expansion" of the market. 
But it happens that a language (if it is sacred, 'secret or peculiar to a 
status group) or a market are "closed" monopolistically through con- 
sensus or association (yergeselhcliaftting). On the other hand, even if 
there is normally a closure through association, as in the affairs of a 
political community, the powers-that-be may be interested in considerable 
openness (for immigrants). , . . (pp. 462-46$). 

"Compulsory associations" or "institutions" QAnstalten) are groups 
in which 1) membership depends on objective criteria regardless of 
the declared will of those included (in contrast to the "voluntary as- 
sociation"), and 2). rationally established rules and an enforcement 
apparatus codetermine individual action (in contrast to amorphous con- 
sensual groupings which lack a rationally established order). Thus, not 
every group into which a person is bom or in which he is raised is an 
Anstalt; witness the language community or the household, both of 
which do without such rational rules. However, proper examples are 
that structure of the political community which is called "state" and 
the religious .structure which is technically a "church." 

Rationally regulated action is related to consensual action as the 
compulsory association is to the "organization" (Verba-nd). "Organized 
action" is oriented toward consensus (not toward rational rules), that 
is, it is consensual action under which 1 ) membership is attributed con- 
sensually, without the participants' rational agreement, 2) an effective 
consensual order is imposed by certain persons (powerholders), in spite 
of the absence of rationally established rules, 3) these persons or others 
are prepared to use physical or psychic coercion against those who 
violate the consensus. ... (p. 466). 



\PPEN 



DIX 1 1 



PARLIAMENT AND 
GOVERNMENT IN A 
RECONSTRUCTED GERMANY 

[A Contribution to the Political Critique of 
Officialdom and Party Politics) 

Preface 

This political treatise is a revision and enlargement of articles pub- 
ished in the Frankfurter Zeitung during the summer of 1917. 1 The 
issay does not provide any new information for constitutional experts, 
tnd it does not claim the protective authority of any science. A choice 
imong ultimate commitments cannot be made with the tools of science. 
rhe arguments presented here cannot influence those for whom the hist- 
orical tasks of the German nation do not rank above all issues of con- 
titutional form, or who view these tasks in a radically different manner. 
)ur arguments have certain presuppositions, from which they are 
lirected against those who consider even the present times suitable for 
[iscrediting parliament in favor of other political powers. Unfortunately, 
uch critique has been going on now for forty years among fairly large 
ircles of literati inside and outside the university, continuing during 
he war. Very often it has been undertaken in the most arrogant and 
xtravagant form, with disdainful venom and without any willingness 
3 understand the preconditions of effective parliaments. It is true that 
he political achievements of the German parliaments are not beyond 
ritique. But what is true of the Reichstag is also true of other political 
ristitutions, which those literati have always treated with great con- 
ideration and often adulation. If such dilettantes make a cheap sport 
ut of attacking parliamentarism, it appears quite proper to scrutinize 

[1381I 



I 382 PARLIAMENT AND GOVERNMENT IN GERMANY [ Afp. II 

their political acumen for once without much consideration for their 
feelings. 'It would he enjoyable, to have an earnest joust with fair-minded 
opponents — no doubt, there are some — , but it would be contrary to 
German, uprightness to show respect for circles from the midst of which : - 
the author nnd many others have time and again been labelled "dema- 
gogue," "un-German" or "foreign agent." No doubt, most of the literati .3 
in question were gullible, but this exactly is perhaps the most shameful 
aspect of such excesses. 

It has been said that now is not the time to deal with domestic issues, ; 
because we are busy with more important things. "We?"— Who? That'1 
must mean those who stayed home. And what is it that should keep> 
them so busy? Inveighing against trie enemies? Wars are not won that 
way. The .soldiers at the front don't make speeches against the enemies, 
and such railing, which increases with the distance from the trenches,-^; 
is unworthy of a proud nation. Or should we make speeches and pass 
resolutions about what "we" must annex before "we" can conclude'^ 
peace? On this particular score the following should be said on principle: v 
If the army, which fights the German battles, would take the position 
that "whatever we have won with our blood must remain under Ger- 
man control," we who stayed home would have the right to say: Con- 
sider that politically this might not be prudent." However, if the army 
insisted, we would have to be silent. But if "we" have no scruples to 
poison the soldiers' pride in their achievements by calling out to them, 
as it has happened time and again: "If such and such a war goal, which 
we conceived, is not reached, you will have bled in vain" — then this ^ 
appears to me simply intolerable from a purely human point of view, 3 
and nothing but harmful to the will to hold out Instead, it would be ^ 
better to keep repeating just one thing: that Germany fights for her life ^ 
against an army in which Africans, Ghurkas and all kinds of other bar- ^1 
barians from the most forsaken corners of the world stand poised at the l\ 
frontiers ready to devastate our country. That happens to be true, that rS j 
everybody can understand, and that would have preserved unity. In- y 
stead the literati are busying themselves with fabricating various "ideas* ". 
for which the soldiers are supposed to shed their blood and die. I do ',- 
not believe that these vain doings have made it any easier for our '..-: 
soldiers to fulfill their difficult duties; they certainly have harmed greatly t 
the possibilities of a sober political discussion. 

It seems to me that our primary task at home consists in making it 
possible for the returning soldiers to rebuild that Germany which they 
have saved — with the ballot in their hands and through their elected 
representatives. Hence we must remove the obstacles posed by present 
conditions, so that the soldiers can begin reconstruction right after the 



Preface 1385 

war instead of having to get involved in sterile controversies. No soph- 
istry can conjure away the fact that [equal] suffrage and parliamentary 
government are the only means for this purpose. Insincere and out- 
rageous is the complaint that a reform was being considered "without 
asking the soldiers" — when in fact only the reform would give them the 
opportunity to participate decisively in political affairs. 

It is said further that every critique of our form of government would 
provide ammunition to the enemies. For twenty years this argument 
has been used to shut us up, until it was too late. What can we now 
lose abroad by such a critique? The enemies can congratulate themselves 
if the old evils should persist. Especially now, when the great war has 
reached the stage at which diplomacy begins to move again, it is high 
time to do everything that will prevent a repetition of the old mistakes. 
For the time being the prospects are unfortunately very limited. But the 
enemies know, or will come to know, that German Democracy cannot 
conclude a bad peace if it is to have any future. 

He whose ultimate beliefs put every form of authoritarian govern- 
ment above all of the nation's political interests may openly do so. He 
cannot be argued with. However, we do not want to hear the non- 
sensical talk about the contrast between the "West European" and the 
"German" ideas of the state. We are dealing here with simple questions 
of [constitutional] techniques for formulating national policies. For a 
mass state, there are only a limited number of alternatives. For a ra- 
tional politician the form of government appropriate at any given time 
is a technical question which depends upon the political tasks of the 
nation. It is merely a regrettable lack of faith in Germany's potentialities 
when it is asserted that the German spirit would be jeopardized if we 
shared useful techniques and institutions of government with other 
peoples. Moreover, parliamentarism has been neither alien to German 
history, nor have any of the contrasting systems been peculiar to Ger- 
many alone. Compelling circumstances will see to it that a German state 
with parliamentary government will be different from any other. It 
. would not be sober politics, but politics in the literati-style, if this issue 
were turned into an object of national vanity. We do not know today 
whether an effective parliamentary reconstruction will take place in 
Germany. It may be thwarted by the Right or forfeited by the Left. 
This latter, too, is possible. The vital interests of the nation stand, of 
course, above democracy and parliamentarism. But if parliament were 
to fail and the old system were to return, this would indeed have far- 
reaching consequences. Even then one could be grateful to fate for 
being a German. But one would have to abandon forever any great 



1384 PARLIAMENT AND GOVERNMENT IN GERMANY. [ Aff. 

hopes for Germany's future, irrespective of the kind of peace we wi 
have. 

The author, who voted Conservative almost three decades ago 
later voted Democratic, who then was given space in the [arch-coi 
tive] Kreuzzeitung and now writes for liberal papers, is neither an actr 
politician nor will he be one. For caution's sake, it may be added thai! 
he does not have connections of any kind with any German statesma: 
He has good reason to believe that no party, not even the Left, 
identify with what he has to say; this applies in particular to w; 
is personally most important to him (sec. iv, below), and this hap 
to be a matter about which the parties do not have divergent opinions.^ 
The author adheres to his political views because the events of the lasi 
decades convinced him long ago that every German policy, irrespecti' 
of its goals, is condemned to failure in view of the given constitution 
setup and the nature of our political machinery, and that this will reH 
main so if conditions do not change. Moreover, he considers it most] 
unlikely that there will always be military leaders who can extricate: 
the nation from political catastrophe through military deeds, at the: 
price of tremendous sacrifices in blood- 
In themselves, technical changes in the form of government do not 
make a nation vigorous or happy or valuable. They can only remove 
technical obstacles and thus are merely means for a given end. Perhaps! 
it is regrettable that such bourgeois and prosaic matters, which we shall j 
discuss here with deliberate self-limitation and exclusion of all of the ',= 
great substantive cultural issues facing us, can be important at all. But ; 
this is the way things are. It has been proven in great as in little things: '!, 
by the political developments of the recent decades, but also, very; 
recendy, by the utter failure of political leadership on the part of an : 
exceptionally capable and decent bureaucrat [Georg Michaelis] — this '■ 
was a kind of test for the analysis presented shortly before the event 
in the articles republished here.* Whoever is not convinced by these 
events will not be satisfied by any proof. If a politician changes the form 
of government, he takes into account the generations to come. But this 
little piece of occasional writing is merely intended to contribute to the 
debate of contemporary issues. 

The long delay of publication in this form, which like-minded 
friends suggested to me, has been due to other preoccupations and then, 
since November, to the usual technical difficulties of going into print. 



Bismarck's Legacy 1385 

I 

Bismarck's Legacy 



The present condition of our parliamentary life is a legacy of Prince 
Bismarck's long domination and of the nation's attitude toward him 
since the last decade of his chancellorship. This attitude has no parallel 
in the reaction of any other great people toward a statesman of such 
stature. Nowhere else in the world has even the most unrestrained 
adulation of a politician made a proud nation sacrifice its substantive 
convictions so completely. On the other hand, policy differences with 
s statesman oi sucn magnitude have rarely triggered such a gieat dea.' 
of hatred as erupted at the time on the extreme left and in the [Catho- 
lic] Center party. What were the reasons? 

At often before, epochal events such as those of 1866 and 1870 haw 
riarl their greatest impact upon the generation for which the victorious 
wars were an indelible experience of its youth, but which had no clear 
comprehension of the serious domestic tensions accompanying them. It 
was not until this generation grew up that Bismarck became a legend. 
The generation of political literati which entered public life from about 
iBjc on split in two unequal segments. The larger group admired not 
the greatness of Bismarck's sophisticated and commanding intellect, but 
exclusively the admixture of violence and cunning, the seeming or actual 
brutality of his political approach. The other group reacted with feeble 
resentment. This second variety disappeared quickly after his death, 
but trie first has since been cultivated all the more. For a long time 
now. this dominant attitude has shaped not only the historical mythology 
of Conservative politicians, but also of genuinely enthusiastic literati 
and, of course, of those intellectual plebeians who by imitating Bi«* 
marck's gestures seek to legitimate themselves as partaking of his spir.t. 
We know that Bismarck had the greatest contempt for this quite in- 
fluential group, even though he was not averse to taking political ad 
vantage of these courtiers, just as he* did of Mr. Busch and his ilk. 3 At 
the margin of a memorandum which we would call Pan-German Call 
deutsch} today he once wrote: "Windy in content and puerile in form." 
This referred to a manuscript which he had requested as a specimen, 
from a man who differed from todays representatives of this type by 
having served the nation courageously, not just by mouthing words. Whtt 



1386 PARLIAMENT AND GOVERNMENT IN GERMANY [ Af>f. U 

Bismarck thought about his Conservative peers he put down in his 

memoirs. 

Bismarck had plenty of reason for thinking lowly of his peers. For 
what happened to him when he was forced out of office in 1890? In 
fairness, he could not expect sympathy from the Center party, to which 
he had tried to link the assassin Kullmann;* from the Social Democrats, 
whom he had hunted with the [local] banishment paragraph of the 
anti-socialist legislation; from the Progressives (Fretsinnige), whom he 
had stigmatized as "enemies of the Reich" But what did the others do 
who had loudly applauded these actions? Conservative lackeys occupied 
the chairs of Prussian ministers and sat in the Federal offices. What 
did they do? They sat it out. "Just a new superior" — that was the end 
of the matter. Conservative politicians sat on the presidential chairs of 
the parliaments in the Empire and in Prussia. What words of sympathy 
did they find for the departing creator of the Reich? They did not utter 
one word. Which of the big parties constituting his following demanded 
any account of the reasons for his dismissal? They did not bestir them- 
selves, they simply turned to the new sun. This event has no parallel 
in the annals of any proud people. But the contempt which it deserves 
can only be heightened by that enthusiasm for Bismarck on which the 
same parties later took a hereditary lease. For half a century the Prussian 
Conservatives have failed to show any "character" in their commitment 
to great political goals or any other ideals, such as men like Stahl and 
Gerlach and the members of the old Christian-Social movement, in ; 
their own way, did possess/' Only when their financial interests, their 
monopoly of office benefices, their office patronage or — and this is the 
same thing — their electoral privileges were at stake, did their govern- 
mental voting machine ruthlessly go into gear, even against the king. 
Then the whole sorry apparatus of "Christian," "monarchic" and 
"national" phraseology was set in motion— the same phrase-making 
that those gendemen now condemn as "cant" on the part of the Anglo- 
Saxon politicians. When several years after Bismarck's dismissal their 
rrjaterial interests were affected, especially by tariff issues, then, and 
only then, did they remember Bismarck as their man, and only since 
that time have they pretended quite seriously to be the guardians of his 
tradition. There are good reasons for assuming that Bismarck had only 
disdain for these manipulations. This is proven by private statements. 
Who can blame him for it? However, the shame about that caricature of 
political maturity provided by the nation in 1890 must not blur our 
recogn^jjBfLof the fact that in this undignified behavior of his partisans 
Bismarck tragically reaped his own harvest; for he had wanted — and 
deliberately accomplished— the political impotence of parliament and of 
the party leaders. . ,- t 



t ] Bismarck's Legacy i 3 8 7 

No statesman who took power without parliamentary responsibility 
ever had such a cooperative parliamentary ally with so many political 
talents as Bismarck had [in the National Liberals] between 1867 and 
1878. It is quite possible to disagree with the political views of the 
National-Liberal Jeaders of that time. Of course, one cannot compare 
them to Bismarck with regard to diplomatic skill and intellectual energy; 
next fo him, they appear at best as average, but this is true also of all 
other German politicians and of most foreign ones. At best, a genius 
appears once in several centuries. But we could thank fate if our gov- 
ernment were now, and in the future, in the hands of politicians of their 
caliber. It is indeed one of the most barefaced distortions of the truth if 
political literati make the nation believe that up until now the German 
parliament has not managed to produce great political talents. It is out- 
rageous that the present subservient fashion denies the status of repre- 
sentatives of the "German Geist" to such parliamentary leaders as 
Bennigsen, Stauffenberg and Vblk or such democrats as the Prussian 
patriot Waldeck;* 'after all, the "German spirit" was at least as strong 
in the St. Paul's Church [in Frankfurt in 1848] as it has been in the 
bureaucracy, and certainly more so than in the inkpots of these 
gendemen. 

These men of the Reichstag's prime period had one great advantage: 
They knew their own limitations and recognized both their past errors 
and Bismarck's tremendous intellectual superiority. Nowhere else did he 
have more passionate personal admirers than in their circles, even in 
those of the later [left-wing liberal] Secessionists. One fact in particu- 
lar speaks for their personal stature: They were completely free of re- 
sentment against Bismarck's superiority. He who has know them must 
fully absolve all major figures among them from this charge. To all 
informed about the course of events, Bismarck's suspicion that these 
men ever thought of toppling him must appear to border on paranoia. 
Time and again I heard from their leaders 7 that they would consider 
caesarism — government by a genius — the best political organization for 
Germany, if there would always be a new Bismarck. That was their - 
sincere conviction. Of. course, they had vigorously crossed swords with 
him in the past. For tbftwery reason they also knew his limitations, and 
they were not ready to 'make any unmanly intellectual sacrifices. It is 
tme that they tended to compromise with him to the point of self-denial 
in order to avoid a rupture; indeed, they went much further than tacti- : : 
cal considerations towards the voters, who threatened to repudiate thejri-^ 
on this score, would have permitted. The National-Liberal leaders shied y- 
away from a fight for greater parliamentary rights not only because they 
foresaw the Center party as its beneficiary,"' bttt also because they real- 
ized that such a conflict would paralyze for a long time Bismarck's 



I388 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

policies as well as the work of parliament. "Nothing succeeds any 
longer" — this was the familiar complaint in the eighties. The ultimate 
intent of these leaders, often expressed in their inner circle, was the 
salvaging, during the rule of this grandiose figure, of those institutions 
upon which depended the continuity of the Empire's leadership after 
adjustment to politicians of more usual qualifications* Among these 
institutions they counted parliament — a parliament capable of actively 
participating in government and of attracting great political talents; 
they also wanted strong parties. 

These National-Liberal leaders knew that the achievement of this 
goal did not depend or. them alone. Frequently I heard it said from 
their midst during Bismarck's great turn-about of 1878: "No great po- 
litical skills are necessary to destroy or to cripple a party which is in our 
precarious position. But if this happens, another big party interested in 
rational co-operation cannot be created in its stead; it would be necessary 
for the government to appeal to interest groups and to resort to the 
system of petty political patronage, and even tHen the most serious 
political disruptions would occur." As we have said above, one can differ 
on some of the policies of this party, but it was through its initiative that 
the position of the Imperial Chancellor was created in the constitution 
(Bennigsen's motion), the civil code was unified on a national basis 
(Lasker's motion), the Retchsbank was established (Bamberger's mo- 
tion), indeed, we owe to this party most of the great Reich institutions, 
which are still proving their worth. After the fact, it is easy to criticize 
its tactics, which always had to consider its difficult position vis-a-vis 
Bismarck. One can explain its decline, among other factors, by pointing 
to t, e natural difficulties of a party of such purely political orientation, 
but burdened by the adherence to obsolete economic dogmas on the 
economic and welfare issues of the time — yet, in all these respects the 
conservative parties do not fare any better. The National-Liberal party's 
ideas about constitutional reform clashed with Bismarck's goals after 
186'S not because of any shortsightedness, as has often been alleged, but 
because of "unitary" ideals — quite in Treitschke's Sense — , ideals which 
we have abandoned in the meantime, in part for n on -political reasons. 6 
At jfjjy rate, the later developments have completely vindicated the basic 
pols ca! premises of the National-Liberals. 

The National-Liberals could not fulfil] their chosen political tasks 
and disintegrated, ultimately not because of any substantive reasons, but 
because Bismarck did not tolerate any autonomous power — neither 
within the ministries nor within parliament. It is true that he offered 
miaisities to various parliamentary leaders, but all of them found out 
then. iTom the beginning he had shrewdly made preparations which 



i } Bismarck's Legacy i 3 8 9 

would enable him to topple his new colleague at any moment by dis- 
crediting him on purely personal grounds. In the last analysis, this and 
nothing else motivated Benmgsen to decline such an offer [in 1877]. 
Bismarck's domestic politics aimed exclusively at preventing the consolida- 
tion of any strong and independent party. His primary means were the 
military budget and.the an ti -socialist legislation [of 1878-1890]; in addi- 
tion, he manipulated quite deliberately and skillfully the clash of eco- 
nomic interests over tariff policies. 

In military matters, the basic position of ..he National-Liberal poli- 
ticians was, to my knowledge, the following Thev were willing to keep 
the authorized strength of the army as large as i appear^ necessary. 
and for this very reason they considered it a merely technical question. ' 
In this way, the old issues of the Prussian Constitutional Conflvt [of 
1862-1866] would be buried and at least this source of demagogic ex- 
citement would be eliminated for the benefit of the r?-"'.4. e 71v: simple 
ascertainment of authorized strength in annual appropHTtl'u; bills wf>s 
all diat was needed. None of these leaders ever doubted th-;? In tM? 
fashion the necessary enlargement of the army «.ould pToair:;;! with-'?.'* 
domestic and international turmoil and reoercussion ,; in particular, the 
military would be able to ask for far higher appropriations in a mu;:b 
less dramatic manner than if this technical problem were to be mixed 
up with the domestic power interests of the bureaucracy, with the result 
that every seventh year the military questions would explode into a 
political sensation with catastrophic consequences for national stability 
and into a wild election campaign under the slogan: "Imperial Army 
versus Parliamentary Army." This was .1' highly deceptive slogan, for 
the army would not have been any more of a parliamentarv institution 
with a one-year than with a seven-year appropriation. Tht more so 
since the seven-year appropriation remained largely fictional in any case. 
In 1887 the Pieicfistdg was dissolved solely over the issue of whether 
the authorised military strength, on which all burgerliche parties agreed, 
should be determined every three or every seven years; the three-year 
. appropriation was declared to be "an assault on privileges of the Crown," 
But three y^;rs later, in iSgo, a new bill on authorized military strength 
was presented to pa^l^m^m, Windthorit, [the Center party leader], 1 " 
did not [ail to rcbuW' hh opponents fci this inconsistency, scornfully 
but witli full justification.. L: this manner, the old and buried military 
issues of the Prussian Constitutional Conflict were transplanted to the 
federal level, and the role of the army became subject to party politics. 
One must not fail to recognize that precisely this was Bismarck's in- 
tention; in that demagogic slogan he saw a means of making the Em- 
peror, who had lived through the Constitutional Conflict, suspect the 



13 9° PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. 11 

Reichstag and the liberal parties of hostility to the army, and at the same 
time of discrediting the National Liberals with their own voters as 
traitors of parliamentary budgetary rights, since they had accepted the 
seven-year appropriation CSe-ptennai). Exacdy the same can be said of 
the anti-socialist legislation. The National Liberals were willing to 
meet Bismarck more than half-way, and even the Progressives were 
amenable to provisions which would make a general criminal offense 
out of what they called "excitation to class hatred." But Bismarck 
wanted emergency legislation as such. During the public furor over the 
second attempt at the Emperors life [in 1878] Bismarck dissolved the 
Reichstag without making any attempt to compose his differences with 
it, simply because he saw an opportunity to destroy the only powerful 
party of the time. 13 

Bismarck succeeded. And the consequences? Instead of having to 
compromise with a parliamentary party which was very close to him in 
spite of all opposition and which had co-operated with him since the 
founding of the Reich, Bismarck became permanently dependent upon 
the [Catholic] Center party, which hated him until the end of his life 
and which had a power base outside of parliament impregnable to his 
attack. When he later made his famous speech on the passing of the 
nation's youth (VdiherfruhUng'), Windthorst replied sarcastically, but 
again correctly, that he himself had destroyed the great party that had 
supported him in the past. When the National Liberals made specific 
proposals to safeguardythe Reichstag's right to raise revenues, Bismarck 
rejected this as lea&ag. to*^arIiamentary rule," but he was eventually, 
forced to concedeplK! ^sarrief^hing to the Center party in the worst 
possible form-^irr^h^ei. ''p^y^off'-paragraph of the so-called Franckenstein 
clause, to wrach"in.r^T^ssia'1the even worse lex Huene was addeQ (which 
later on was' eliminated aj&in only with great difficulties). 11 Moreover, 
Bismarck had to 5 wallow [ss part of the price for these revenues] the 
major defeat of 4£e staters adthority in the struggle against the Catholic 
church, the Kulturhtm-pf, which he had fought with completely un- 
suitable means and for wl-iich he denied responsibility in vain and with 
little honesty. On the other hand, in his anti-socialist laws he offered 
the most splendid elej^on issue to the Social Democrats. To be turned 
into demagoguery, ancr very bad demagoguery at that, was also the fate 
of the Imperial welfare legislation in Bismarck's hands, however valu- 
able this legislation may be thought in itself. He rejected protective 
labor legislation, which after all was indispensable to the preservation 
of the nation's population resources, as interference with the rights of 
the master — in part with incredibly trivial arguments. For the same 
reason he used the provisions of the a nti -socialist legislation to have 



i ] _ Bismarck's Legacy i 3 9 1 

the police destroy the trade unions, the only possible bearers of a down- 
to-earth interest representation of the working class. Thus he drove their 
members into the most extreme radicalism of pure party politics. On 
the other hand, Bismarck, in imitation of certain American practices, 
believed that he could create a positive attitude toward the state, and 
political gratitude, by granting welfare benefits out of public funds or 
compulsory private funds. A grave political error: every policy that ever 
banked on political gratitude has failed. In politics, too, the Biblical say- 
ing applies to the doing of good works: "They have forfeited their 
wages." We got benefits for the sick, the disabled, the veterans and 
the aged. This was certainly desirable. But we did not get the guarantees 
necessary for preserving physical and mental health, and for enabling 
those sound in body and mind to defend their interests soberly and 
with self-respect; in other words, precisely the politically relevant part of 
the working population was left out. 

As in the Kulturkampf, Bismarck here overrode all major psycho- 
logical considerations. Above all, in the treatment of the unions one 
point was overlooked that even today some politicians have not yet 
understood: A state that wants to base the spirit of its mass army on 
honor and solidarity must not forget that in everyday life and in the 
economic struggles of the workers the sentiments of honor and solidarity 
are the only decisive moral forces for the education of the masses, and 
that for this reason these sentiments must.be given free rein. This and 
nothing else is the political meaning of "social democracy" in an age 
which, inevitably, will still remain capitalist for a long time. We are 
even today suffering from the consequtnces of this policy. Bismarck 
had created a political atmosphere about himself which in 1890 left 
him only the alternatives of unconditional surrender to Windthorst or 
of a coup d'etat, if he was to remain in office. Thus it was no accident 
that the nation reacted 'v<di complete indifference to bis resignation. 

In view of ehu usual uncritical and, above all, unmanly glorification 
of Bismarck, it seemed high time to call attention, for a change, to this 
side of the matter. For the most influential part of the popular Bismarck 
literature has been written For the Chnsuii^s table of the philistine who 
prefers that completely nonpcliticsl kind of hero worship which has 
become so common with us. The Bismarck literature of this type caters 
to such sentimentality and presumes to serve its hero by veiling his 
limitations and by maligning his opponents. But in this manner one 
cannot educate the nation to develop habits of independent political 
thinking. It does not diminish Bismarck's giant stature to be fair toward 
bis opponents and to point without embellishment to the consequences 
of his misanthropy; nor to point to the fact that since 1878 the nation 



I 3 9 2 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

has been unaccustomed to sharing, through its elected representatives, 
in the determination of its political affairs. Such participation, after all, 
is the precondition for developing political judgment. 

What then wa? Bismarck's legacy, as far as we are here interested 
in it? He left behind him a nation without any political sophistication, 
far below the level which in this regard it had reached twenty years 
before [i.e., in 1870]. Above all, he left behind him a nation without 
any -political will of Us own, accustomed to the idea that the great states- 
man at the helm would make the necessary political decisions. Further 
more, he left behind him a nation accustomed to fatalistic sufferance of 
all decisions made in the name of "monarchic government," because he 
had misused monarchic sentiments as a cover for his power interests in 
the struggle of the parties a nation unprepared to look critically at the 
qualification of those who settled down in his empty chah- and w'th 
astonishing lack of embarrassment took the reigns of government Into 
their cwn hands. On this score by far the gravest damage was dene 
The great statesman did not leave behind any political tradition. He 
neither attracted nor even suffered independent political minds, not to 
speak of .strong political personalities On top of all this, it was the 
nation's misfortune that he harbored not only intense mistrust toward 
all even vaguely possible successors, but that he also had a son wh se 
indeed exceedingly mediocre political talents he overestimated to an 
astonishing degree. 13 A completely powerless parliament was the purely 
negative result of his tremendous prestige. It is well-known that afte> 
he had left office and personally suffered the consequence of this very 
condition, he accused himself of havmg made a mistake. However, this 
powerlessness of parliament also meant that its intellectual level was 
greatly depressed. The naive moralizing legend of our unpolitical literati 
reverses the causal relationship and maintains that parliament remained 
deservedly powerless because of the low level of parlimentary life. But 
simple facts and considerations reveal the actual state of affairs, which 
in any case is obvious to every soberly reflecting person. The level of 
parliament depends on whether it does not merely d.;=.:uss great issues 
but decisively influences them; in other words, its quality depends or 
whether what happens there matters, or whether parliament is nothing 
but the unwillingly tolerated rubber stamp of a ruling bureaacracy. 



» ] Bureaucracy and Political Leadership '393 

Bureaucracy and Political Leadership 



i . Bureaucracy and Politics" 

In a modern state the actual ruler is necessarily and unavoidably 
the bureaucracy, since power is exercised neither through parliamentary 
speeches nor monarchical enunciations but through the routines of ad- 
ministration. This is true of both the military and civilian officialdom. 
Even the modern higher-ranking officer fights battles from the "office," 
Just as the so-called progress toward capitalism has been the unequivocal 
criterion for the modernization of the economy since medieval times, so 
the progress toward bureaucratic officialdom — characterized by formal 
employment, salary, pension, promotion, specialized training and func- 
tional division of labor, well-defined areas of jurisdiction, documentary 
procedures, hierarchical sub- and super-ordination — has been the equally 
unambiguous yardstick for the modernization of the state, whether 
monarchic or democratic; at least if the state is not a small canton with 
rotating administration, but comprises masses of people. The democratic 
state no less than the absolute state eliminates administration by feudal, 
patrimonial, patrician or other notables holding office in honorary or 
hereditary fashion, in favor of employed civil servants. It is they who 
decide on all our everyday needs and problems. In this regard the mili- 
tary power-holder, the officer, does not differ from the civilian official. 
The modern mass army, too, is a bureaucratic army, and the officer is 
a special type of official, distinct from the knight, the condottiere, the 
chieftain, or the Homeric hero. Military effectiveness rests on bureau- 
cratic discipline. The advance of bureaucratism in municipal administra- 
tion differs little from the general development; it is the more rapid, the 
larger the community is, or the more it loses local autonomy to technical 
and economic associations. In the Church the most important outcome 
[of the Vatican Council] of 1870 was not the much-discussed dogma 
of infallibility, but the universal episcopate [of the pope] which created 
the ecclesiastic bureaucracy Q^aylanokratie) and turned the bishop and 
the parish priest, in contrast to the Middle Ages, into mere officials of 
the central power, the Roman Cwria. The same bureaucratic trend pre- 
vails in the big private enterprises of our time, the more so, the larger 



13 9 4 PARLIAMENT AND GOVERNMENT IN GERMANY [ Apf>. II 

they are. Private salaried employees grow statistically faster than the 
workers. 

It is simply ridiculous if our literati believe that non-manual work 
in the private office is in the least different from that in a government 
office. Both are basically identical. Sociologically speaking, the modern 
state is an "enterprise" (J$etrieh~) just like a factory: This exactly is its 
historical peculiarity. Here as there the authority relations have the 
same roots. The relative independence of the artisan, the producer under 
the putting-out system, the free seigneurial peasant, the travelling as- 
sociate in a commenda relationship, the knight and vassal rested on 
their ownership of the tools, supplies, finances and weapons with which 
they fulfilled their econorhic, political and military functions and main- 
tained themselves. In contrast, the hierarchical dependence of the wage 
worker, the administrative and technical employee, the assistant in the 
academic institute as well as that of the civil servant and the soldier is 
due to the fact that in their case the means indispensable for the enter- 
prise and for making a living are in the hands of the entrepreneur or 
the political ruler. The majority of the Russian soldiers, for example, did 
not want to continue the war [in 1917]. But they had no choice, for 
both the means of destruction and of maintenance were controlled by 
persons who used them to- force the soldiers into the trenches, just as 
the capitalist owner of the means of production forces the workers into 
the factories and the mines. This all-important economic fact: the "sepa- 
ration" of the worker from the material means of production, destruction, 
administration, academic research, and finance in general is the common 
basis of the modem state, in its political, cultural and military sphere, 
and of the private capitalist economy. In both cases the disposition over 
these means is in the hands of that power whom the bureaucratic 
apparatus (of judges, officials, officers, supervisors, clerks and non- 
commissioned officers) directly obeys or to whom it is available in case of 
need. This apparatus is nowadays equally typical of all those organiza- 
tions; its existence and function are inseparably cause and effect of this 
concentration of the means of operation — in fact, the apparatus is its 
very form. Increasing public ownership in the economic sphere today 
unavoidably means increasing bureaucratization. 

The "progress" toward the bureaucratic state, adjudicating and ad- 
ministering according to rationally established law and regulation, is 
nowadays very closely related to the modern capitalist development. 
The modem capitalist enterprise rests primarily on calculation and 
presupposes a legal and administrative system, whose functioning can be 
rationally predicted, at least in principle, by virtue of its fixed general 
norms, just like the expected performance of a machine. The modern 



ii ] Bureaucracy and Political Leadership i 3 9 5 

capitalist enterprise cannot accept what is popularly called "kadi- 
justice": adjudication according to the judge's sense of equity in a given 
case or according to the other irrational means of law-finding that existed 
everywhere in the past and still exist in the Orient. The modern enter- 
prise also finds incompatible the theocratic or patrimonial governments 
of Asia and of our own past, whose administrations operated in a patri- 
archal man%f r according to their own discretion and, for the rest, accord- 
ing to inviolably sacred but irrational tradition. The fact that kadi- 
justice and the corresponding administration are so often venal, precisely 
because of their irrational character, permitted the development, and 
often the exuberant prosperity, of the capitalism of traders and govern- 
ment purveyors and of all the pre-rational types known for four thousand 
years, especially the capitalism of the adventurer and booty-seeker, who 
lived from politics, war and administration. However, the specific features 
of modern capitalism, in contrast to these ancient forms of capitalist ac- 
quisition, the strictly rational organization of work embedded in rational 
technology, nowhere developed in such irrationally constructed states, and 
could never have arisen within them because these modern organizations, 
with their fixed capital and precise calculations, are much too vulnerable 
tr irrationalities of law and administration. They could arise only in 
such circumstances as: 1) In England, where the development of the law 
was practically in the hands of the lawyers who, in the service of their 
capitalist clients, invented suitable forms for the transaction of business, 
and from whose midst the judges were recruited who were strictly bound 
to precedent, that means, to calculable schemes; or 2.) where the judge, 
as in the bureaucratic state with its rational laws, is more or less an 
automaton of paragraphs: the legal documents, together with the costs 
and fees, are dropped in at the top with the expectation that the judg- 
ment will emerge at the bottom together with more or less sound argu- 
ments — an apparatus, that is, whose functioning is by and large calculable 
or predictable." 



2. The Realities of Party Politics and the 
Fallacy of the Corporate State 

Within the political parties bureaucratization progresses in the same 
fashion as in the economy and public administration. 

The existence of the parties is not recognized by any constitution or, 
at least in Germany, by any law, although they are today the most 
important political vehicles for those ruled by bureaucracy — the citizens. 
Parties are inherently voluntary organizations based on ever renewed re- 



13 9^, PARLIAMENT AND GOVERNMENT IN GERMANY [ Afp. II 

cruitment, no matter how many means they may employ to attach their 
clientele permanently. This distinguishes them from all organizations 
with a definite membership established by law or contract. Today the 
goal of the parties is always vote-getting in an election for political posi- 
tions or a voting body. A hard core of interested members is directed by 
a leader or a group of notables; this core differs greatly in the degree 
of its hierarchical organization, yet is nowadays often bureaucrarized; 
it finances the party with the support of rich sponsors, economic interests, 
office seekers, or dues-paying members. Most of the time several of 
these sources are utilized. The hard core also defines program and tactics 
and selects the candidates. Evt;i in mass parties with very democratic 
constitutions, the voters and most of the rank and file members do not 
(or do only formally) participate in the drafting of the program and 
the selection of the candidates, for by their very nature such parties 
develop a salaried officialdom. The voters exert influence only to the 
extent that programs and candidates are adap t 1 and selected according 
to their chances of receiving electoral support. 

No moralizing complaint about the nature o f campaigning and the 
inevitable control of minorities over programs and candidates can elimi- 
nate parties as such, or change their structure and methods more than 
superficially. The conditions for establishing an active party core (like 
those for establishing trade unions, for example) and the "rules of war" 
on the electoral battlefield can be regulated by law, as was done several 
times in the United States. But it is impossible to eliminate the struggle 
of the parties itself if an active parliamentary representation is to exist. 
However, some literati time and again entertain the confused notion 
that this is possible or ought to be done. In varying degrees of awareness, 
this notion underlies the many proposals to displace the parliaments 
based on universal (equal or graduated) suffrage by electoral bodies 
of an occupational nature, or to put them next to one another, with the 
corporate occupational groups serving at the same time as electoral assem- 
blies for parliament. To begin with, this is an untenable proposition at 
a time when formal occupational identification — which in an electoral 
law would have to rely on external criteria — reveals next to nothing 
about economic and social function, when every technological discovery, 
every economic shift and every new field changes these functions and 
hence the meaning of formally identical jobs as well as the numerical 
relationships. Of course, this idea is also unsuitable for its avowed pur- 
pose. Even were it possible to represent all voters through occupational 
bodies such as chambers of commerce and agriculture, and to constitute 
the parliament from these bodies, the consequences would obviously be 
the following: 



=1 



u ] Barem c r icy and Political Leadership i 3 Q 7 

1) inside these organizations fastened together with legal cramp- 
irons there would continue to exist the voluntary interest groups, just as 
the Bund der Landwirte (Farmers' League) and the various employers' 
associations parallel the chambers of commerce and agriculture. Further, 
the political parties, also based on free recruitment, would not think of 
disappearing, but would merely adjust their tactics to the new condition. 
This change would not be for the better: The influencing of elections 
in these corporate occupational organizations through financial backers 
and through the exploitation of capitalist dependencies would continue 
at least as uncontrolled as before. 

2.) The solution of the substantive tasks of these occupational or- 
ganizations would be drawn into the whirl of political power and party 
struggles now that the composition of these organizations influences tnc 
parliamentary elections and job patronage; thus these organizations would 
be crowded with party representatives instead of competent experts. 

3) Parliament would become a mere market place for compromises 
between purely economic interests, without any political orientation to 
overall interests. For the bureaucracy this would increase the opportunity 
and the temptation to play off opposed economic interests and to expand 
the system of log-iolling -with job and contract patronage in order to pre- 
serve its own power. Any public control over the administration would 
be vitiated, since the decisive moves and compromises of the interested 
groups would be made behind the closed doors of the non-public 
associations and would be even less controllable than before, "in parlia- 
ment the shrewd businessman, not the political leader,*would reap ad- 
vantage from this situation; ? "representative" body of this kind would be 
the least proper place imaginable for the solution of political problems 
according to truly political criteria. All of this is clear to those who un- 
derstand these matters. It is also obvious to them that such arrangements 
would fail to diminish capitalist influences in the parties and parliament, 
or even to eliminate, or at least to clean up, the party machinery. The 
opposite would happen. Tht; fact that the parties operate on the prin- 
ciple of free recruitment hinders their regulation by the state; this is 
not understood by those literati would would like to recognize only 
organizations established by public law, not the ones which establish 
themselves on the battlefield of today's" social order. 

In modern states political parties may be based primarily on two 
different principles. They may be essentially organizations for job pa- 
tronage, as they have been in the United States since the end of the 
great differences about the interpretation of the Constitution. In this 
case they are merely interested in putting their leader into the top posi- 
tion so that he can turn over state offices to his following, the regular 



I 3 9 8 PARLIAMENT AND GOVERNMENT IN GERMANY [ A"pf 

and the campaign staffs of the party. Since the parties do nt>t have sub- 
stantive principles, they compete against one another by writing those 
demands into their programs from which they expect the greatest im- 
pact. This type of party is so distinct in the United States because of 
the absence of a parliamentary system; the popularly elected President 
of the Union controls — together with the Senators — the patronage of 
the vast number of federal jobs. Despite the resulting corruption this 
system was popular since it prevented the rise of a bureaucratic caste. 
It was technically feasible, as long as even the worst management by 
dilettanti could be tolerated in view of the limitless abundance of eco- 
nomic opportunities. The increasing necessity of replacing the untrained 
party protege and sometime-official with the technically trained career 
official diminishes progressively the parties* benefices and results in- 
escapably in a bureaucracy of the European kind. 

The second type of party is primarily ideological (Weltanschauungs- 
■parteO and intended to accomplish the realization of substantive politi- 
cal ideals. In relatively pure form this type was represented in Germany 
by the Catholic Center party of the eigh teen-seventies and the Social 
Democrats before they became bureaucran'zed. In general, parties com- 
bine both types: They have substantive goals which are set by tradition, 
hence modifiable only by degrees, but they also want to control job 
patronage. First of all, they want to put their leaders into the major 
political offices. If they are successful in the electoral struggle, the 
leaders and functionaries can provide their following with secure state 
jobs during the party's dominance. This is the rule in parliamentary 
states; therefore, the ideological parties, too, followed this path. In non-' 
parliamentary states [such as Imperial Germany] the parties do not con- 
trol the patronage of the top offices, but the most influential parties can 
usually pressure the dominant bureaucracy into conceding nonpolitical 
jobs to their proteges, next to the regular candidates recommended 
through their own connections with officials; hence, these parties can 
exercise "subaltern"-patronage. 

In the course of the rationalization of campaign, techniques during 
the last decades, all parties have moved towards bureaucratic organiza- 
tion. The individual parties have reached different stages of this develop- 
ment, but at least in mass states the general direction is clear. Joseph 
Chamberlain's "caucus" in England, the rise of the "machine," as it is 
significantly called, in the United States, and the growing importance oi 
party officialdom everywhere, including Germany, are all stages of this 
process; in Germany it proceeds fastest in the Social Democratic party 
— quite naturally, since it is the most democratic party. For the Center 
party the clerical apparatus (Kaflanokratte) functions as party bureau- 



'■" ! 



» ] Bureaucracy and Political Leadership i 3 9 9 

cracy, and- for the Conservative party in Prussia, since Puttkamer's 
ministry [1881-88], the county and local governmental apparatus of the 
Landrat and the Amtsvorsteker, irrespective of how openly or covertly it 
has been done. The power of the parties rests primarily on the organiza- 
tional effectiveness of these bureaucracies. The mutual hostility of the 
party machines much more than programmatic differences accounts for 
the difficulties of merging parties. The fact that the Reichstag deputies 
Eugen Richter and Heinrich Rickert each retained his own local organi- 
zation in the Progressive party foreshadowed its eventual split." 



3. Bureaucratization and the Naivete of the Literati 

Of course, there are many differences between the various kinds of 
bureaucracy: between the civilian and the military administration, be- 
tween state and party, between community, church, bank, cartel, pro- 
ducers' co-operative, factory, and interest group (such as employers' 
associations or the Bund der Landwirte^. The degree to which unpaid 
notables and interest groups participate also varies greatly. Neither the 
party boss nor the board members of a joint stock company are bureau- 
crats. Under the various forms of so-called "self-government," notables 
or elected representatives of the governed or the taxpayers may as a 
corporate group or as individual organs be conjoined with, or super- 
or subordinated to, the bureaucracy and have co-determining, super- 
visory, advisory and sometimes executive functions. The last phenome- 
non occurs particularly in the municipal administrations. However, we 
are here not interested in these institutions, although they are not with- 
out practical significance. (Thus, we do not discuss here numerous 
institutions of which we can be proud in Germany and some of which 
are indeed exemplary.' But it is a horrendous error of the literati if they 
fancy that the governing of a large state is basically the same as the 
self-government of any medium-sized city. Politics means conflict.) In 
our context it is decisive that in the administration of mass associations 
the trained career officials always form the core of the apparatus; their 
discipline is the absolute precondition of success. This is increasingly so, 
the larger the association is, the more complicated its tasks are, and above 
all, the more its existence depends on power — whether it involves a 
power struggle on the market, in the electoral arena or on the battlefield. 
This is especially true of the political parties. Doomed is the system 
of local party administration by notables, which still exists in France — 
whose parliamentary tnisere is due to the absence of bureaucratized 
parties — and partly in Germany. In the Middle Ages administration by 



I 4 O O PATIT.1AMBNT AND GOVERNMENT IN GERMANY [ Aff. lt\ 

local notables dominated all kinds of associations, and it still prevails inj 
small and medium-sized communities, but nowadays "respected citizens,* 
"leading men of science," or whatever their label, can be used merely? 
as advertisement, not as executors of the decisive everyday routines. Fori 
the same reason, various decorative dignitaries appear on the boards oH 
joint-stock companies, princes of the Church are displayed at thef 
Catholic conventions, real and pseudo-aristocrats at the meetings of the] 
Farmers' League (Bund der Landwirte), and deserving historians,] 
biologists and similar experts who usually are unsophisticated in politi-j 
cal matters are drawn into the agitation of the Pan-German champions.! 
of war-gains and electoral privileges. Increasingly the real work in all \ 
organizations is done by the salaried employees and by functionaries of \ 
all 'kinds. Everything else has become window-dressing. 

Just as the Italians and after them the English masted y* developed;! 
the modern capitalist forms of economic organization, so the Byzantines, \ 
later the Italians, then the territorial states of the absolutist age, the 
French revolutionary centralization and finally, surpassing all of them,, 
the Germans perfected the rational, functional and specialized bureau- 
cratic organization of all forms of domination from factory to army and 
public administration. For the time being the Germans have been out- 
done only in the techniques of party organization, especially by the 
Americans. The present world war means the world-wide triumph of this 
form of life, which was advancing at any rate. Already before the War, 
the universities, polyrechnical and business colleges, trade schools, mili- 
tary academies and specialized schools of all conceivable kinds (even fot ; .^ 
journalise.) reverberated with urgent demands propelled by the schools';! 
recruitment interests ^nd the graduates' mania for benefices: The pli 
fessional examination was to be the precondition for all well-paying and,| 
above all, secure positions in public and private bureaucracies; the di-| 
ploma was to be the basis of all claims for social prestige (of connuhiuml 
and social commercium with the circles that consider themselves "so^| 
ciety"); the socially proper, guaranteed "salary" [rather than the "wage"],^ 
followed by a pension, was to be the form of compensation; firiallyj 
salary increases and promotion were to be dependent on seniority. The* 
effects can be seen inside and outside of governmental institutions,.! 
but we are here only interested in the consequences for political h*6 
It is this sober fact of universal bureaucratization that is behind 
so-called "German ideas of 1914," behind what the literati euphen 
cally call the "socialism of the future," behind the slogans of "organr 
society," "cooperative economy," and all similar contemporary phrases." 
Even if they aim at the opposite, they always promote the rise ofJ|| 
bureaucracy. It is true that bureaucracy is by far not the only mcdemfl 



it ] Bureaucracy and Political Leadership 1401 

form of- organization, just as the factory is by far not the only type of 
commercial enterprise, but both determine the character of the present 
age and of the foreseeable future. The future belongs to bureaucratiza- 
tion, and it is evident that in this regard the literati pursue their calling 
— to provide a salvo of applause to the up-and-coming powers — just as 
they did in the age of laissez-faire, both times with the same naivetd 

Bureaucracy is distinguished from other historical agencies of the 
modem rational order of life in that it is far more persistent and "escape- 
proof." History shows that wherever bureaucracy gained the upper 
hand, as in China, Egypt and, to a lesser extent, in the later Roman 
empire and Byzantium, it did not disappear again unless in the course 
of the total collapse of the supporting culture. Yet these were still, rela- 
tively speakmg, highly irrational forms of bureaucracy: "Patrimonial 
bureaucracies." In contrast to these older forms, modern bureaucracy 
has one characteristic which makes its "escape-proof" nature much more 
definite: rational specialization and training. The Chinese mandarin 
was not a specialist but a "gendeman" with a literary and humanistic 
education. The Egyptian, Late-Roman or Byzantine official was much 
more of a bureaucrat irj our sense of the word. But compared to the 
modern tasks, his were infinitely simple and limited; his attitude was in 
part tradition-bound, in part patriarcbally, that means, irrationally ori- 
ented. Like the businessman of the past, he was a pure empiricist. The 
modern official receives a professional training which unavoidably in- 
creases in correspondence with the rational technology of modern life. 
All bureaucracies in the world proceed on this path. Our superiority 
on this score was due to the fact that before the war other bureaucracies 
had not gone as far. The old American patronage official, for example, 
was a campaign "expert" with the pertinent "know-how," but he was 
by no means an experdy' trained official. Not democracy as such, as 
our literati allege, Jbut lack of ^rofe&sional^ training was the source of 
corruption, which is as alien to the university-trained" civil^serviee-now- . 
emerging as it is to the modern English bureaucracy, which increasingly 
replaces self-government through notables ("gendemen"). Wherever 
the modem specialized official comes to predominate, his power proves 
practically indestructible since the whole organization of even the most 
elementary want satisfaction has been tailored to his mode of operation. 
A progressive elimination of private capitalism is theoretically conceiv- 
able, although it is surely not so easy as imagined in the dreams^of some 
literati who do not know what it is all about; its elimination will cer- 
tainly not be a consequence of this war. But let us assume that some 
time in the future it will be done away, with. What would be the 
practical result? The destruction of the steel frame of modem industrial 



1402 PAHLIAMBNT AND GOVERNMENT IN GERMANY [ Aff. 11 

work? No! The abolition of private capitalism would simply mean that 
also the top management of the nationalized or socialized enterprises 
would become bureaucratic. Are the daily working conditions of the 
salaried employees and the workers in the state-owned Prussian mines 
and railroads really perceptibly different from those in big business 
enterprises? It is true that there is even less freedom, since every power 
struggle with a state bureaucracy is hopeless and since there is no appeal 
to an agency which as a matter of principle would be interested in 
limiting the employer's power, such as there is in the case of a private 
enterprise. That would be the whole difference. 

State bureaucracy would rule alone if private capitalism were elimi- 
nated. The private and public bureaucracies, which now work next to, 
and potentially against, each other and hence check one another to a 
degree, would be merged into a single hierarchy. This would be similar 
to the situation in ancient Egypt, but it would occur in a much more 
rational — and hence unbreakable — form. 

An inanimate machine is mind objectified. Only this provides it with 
the power to force men into its service and to dominate their everyday 
working life as completely as is actually the case in the factory. Objecti- 
fied intelligence is also that animated machine, the bureaucratic organ- 
ization, with its specialization of trained skills, its division of jurisdiction, 
its rule$ and hierarchical relations of authority. Together with the 
inanimate machine it is busy fabricating the shell of bondage which 
men will perhaps be forced to inhabit some day, as powerless as the 
fellahs of ancient Egypt. This might happen if a technically superior 
administration were to he the ultimate and sole value in the ordering of 
their affairs, and that means: a rational bureaucratic administration, 
with the corresponding welfare benefits, for this bureaucracy can ac- 
complish much better than any other structure of domination. This shell 
of bondage,, which our ^ensaspeenjig literati praise so tnueh, inight per- 
"haps be reinforced by fettering every individual to his job (notice the 
beginnings in the system of fringe benefits), to his class (through the 
increasing rigidity of the property distribution), and maybe to his 
occupation (through liturgic methods of satisfying state requirements, 
and that means: through burdening occupational associations with state 
functions). It would be made all the more indestructible if in the social 
sphere a status order were then to be imposed upon the ruled, linked to the 
bureaucracy and in truth subordinate to it, as in the forced-labor 
states of the past. An "organic" social stratification, similar to the 
Oriental-Egyptian type, would then arise, but in contrast to the latter it 
would be as austerely rational as a machine. Who would want to deny 
that such a potentiality lies in the womb of the future? In fact, this has 



ii ] - Bureaucracy and Political Leadership 1403 

often been said before, and the very muddled anticipation of it also 
throws its shadow upon the productions of our literati. Let us assume 
for the moment that this possibility were our "inescapable" fate; Who 
wewld then not smile about the fear of our literati that the political 
and social development might bring us too much "individualism" or 
"democracy" or other such-like things, and about their anticipation that 
"true freedom" will light up only when the present "anarchy" of eco- 
nomic production and the "party machinations" of our parliaments will 
be abolished in favor of social "order" and "organic strati?.cation" — 
that means, in favor of the pacifism of social impotence under the 
tutelage of the only really inescapable power: the bureaucracy in state 
and economy. 



4. The Political Limitations of Bureaucracy 1 * 

1 Given the basic fact of the irresistible advance of bureaucratization, 
the question about the future forms of political organization can only 
he asked in the following way; 

i. How can one possibly save any remnants of "individualist" free- 
dom in any sense? After all, it is a gross self-deception to believe that 
without the achievements of the age of the Rights of Man any one of 
us, including the most conservative, can go on living his life. But this 
question shall not concern us here, for there is another one: 

2. In view of the growing indispensability of the state bureaucracy 
and its corresponding increase in power, how can there be any guaran- 
tee that any powers will remain which can check and effectively control 
the tremendous influence of this stratum? How will democracy even in 
this limited sense be at all possible? However, this too is not the only 
question with which we are concerned here. 

3. A third question, and the most important of all, is raised by a 
consideration of the inherent limitations of bureaucracy proper. It can 
easily be seen that its effectiveness has definite limitations in the public 
and governmental realm as well as in the private economy. The "direct- 
ing mind," the "moving spirit" — that of the entrepreneur here and of 
the politician there — differs in substance from the civil-service mentality 
of the official. It is true that the entrepreneur, too, works in an office, 
just like the army leader, who is formally not different from other 
officers. If the president of a large enterprise is a salaried employee of a 
joint stock corporation, then he is legally an official like many others. In 
political life the same is true of the head of a political agency. The govern- 
ing minister is formally a salaried official with pension rights. The fact 



I 4 O 4 PARLIAMENT AND GOVERNMENT IN GERMANY [ hpf. II 

that according to all constitutions he can be dismissed or resign at any 
time differentiates his position from that of most, but not all other 
officials. Far more striking is the fact that he, and he alone, does not need 
to prove formal specialized training. This indicates that the meaning of 
his position distinguishes him, after all, from other officials, as it does the 
entrepreneur and the corporation president in the private economy. Ac- 
tually, itrs more accurate to say that he is supposed to be something 
different. And so it is indeed. If a man in a leading position is an "official" 
in the spirit of his performance, no matter how qualified — a man, that is, 
who works dutifully and honorably according to rules and instruction — , 
then he is as useless at the helm of a private enterprise as of a government. 
Unfortunately, our own government has proven this point. 

The difference is rooted only in part in the kind of performance ex- 
pected. Independent decision-making and imaginative organizational 
capabilities in matters of detail are usually also demanded of the bureau- 
crat, and very often expected even in larger matters. The idea that the 
bureaucrat is absorbed in subaltern routine and that only the "director" 
performs the interesAtg, intellectually demanding tasks is a precon- 
ceived notion of the literati and only possible in a country that has no 
insight into the manner in which its affairs and the work of its official- 
dom are conducted. The difference lies, rather, in the kind of responsi- 
bility, and this does indeed determine the different demands addressed 
to both kinds of positions. An official who receives a directive which he 
considers wrong can and is supposed to object to it. If his superior insists 
on its execution, it is his duty and even his honor to carry it out as if 
it corresponded to his innermost conviction, and to demonstrate in this 
fashion that his sense .of duty stands, above his personal preference. It 
does not matter whether the imperative mandate originates from an 
"agency," a "corporate body" or an "assembly." This is the ethos of 
office. A political leader acting in this way would deserve contempt. He 
will often be compelled to make^ compromises, that means, to sacrifice 
the less important to the more important. If he does not succeed in de- 
manding of his master, be he a monarch 6r the people: "You either 
give me now the authorization I want from you, or I will resign," he 
is a miserable Kieber [one who sticks to his post] — as Bismarck called 
this type — and not a leader. "To be above parties" — in truth, to remain 
outside the realm of the struggle for powel: — is the official's role, while 
this struggle for personal power, and the resulting personal responsibility, 
is the lifeblood of the politician as well as of the entrepreneur. 

Since the resignation of Prince Bismarck Germany has been gov- 
erned by "bureaucrats," a result of his elimination of all political talent. 
Germany continued to maintain a military and civilian bureaucracy 



» j Bureaucracy and Political Leadership 140J 

superior ,to all others in the world in terms of integrity, education, con- 
scientiousness anr intelligence. The mil -y'and, by and large, also the 
domestic performance during the war h. .' proven what can be achieved 
with these means. But what about the direction of German [domestic 
and foreign} policy during recent decades? The most benign thing said 
about it was that "the victories of the German armies made up for its 
defeats." We will be silent about the sacrifices involved and ask instead 
about the reasons for these failures. 

Abroad it is fancied that German "autocracy" is at fault. Inside Ger- 
many, thanks to the childish .historical fantasies of our literati, it is 
frequently assumed, by contrast, that a conspiracy of international 
"democracy" brought about the unnatural world coalition against us. 
Abroad the hypocritical phrase of the "liberation" of the Germans from 
autocracy is employed. At home the vested interests — we shall get to 
know them — manipulate the equally hypocritical slogan of the neces- 
sity to protect the "Geriian spirit" from contamination by "democracy," 
or they look for other scapegoats. 

It has become customary, for instance, to criticize German diplomacy, 
probably unjustifiably. It appears likely that on, the average it was about 
as good as that of other countries. A confusion is involved here. What 
was lacking was the direction of the state by a politician — not by a 
political genius, to be expected only once every few centuries, not even 
by a great political talent, but simply by a politician. 



5. The Limited Role of the Monarch 

This brings us straight to the discussion of those two powers which 
3lone can be controlling and directing forces in the modem constitu- 
tional state, next to the all-encompassing officialdom: to the monarch 
and the parliament. 

The position of the German dynasties will emerge unscathed from 
the war unless there is a great deal of imprudence and nothing is learnt 
from the mistakes of the past. Whoever has had an opportunity to get 
together with German Social Democrats could almost always get them 
to admit, after an intensive discussion, that "in itself" the constitutional 
monarchy was the suitable form of government for Germany in view 
of her special international situation. This was so long before August 
4, 19*4, and I do not speak here of "revisionists," parliamentary dep- 
uties, or trade unionists, but of regular party functionaries, in part very 
radical ones. One need only look for a moment at Russia in order to 



1406 PARLIAMENT AND GOVERNMENT IN GERMANY [ Afp. 11 

understand that the transition to parliamentary monarchy, as the liberal 
politicians desired it, would have preserved the dynasty, destroyed the 
naked rule of the bureaucracy, and in the final result would have 
strengthened the country as much as it is now weakened by the present 
republic of literati, irrespective of its leaders' idealism. 17 In England it is 
well understood that the strength of British parliamentarism is related 
to the fact that the highest position in the state is occupied once and 
for all. We can discuss here neither the reasons for the importance of 
the mere existence of a monarch nor the question of whether only a 
monarch can play this role. For Germany at least we must reckon with 
the position of the monarch. We cannot be eager for an age of wars 
between pretenders and an era of counter-revolutions; for that our in- 
ternational position is too tenuous. 

However, in the modern state the monarch can never and nowhere 
be a counterforce against the pervasive power of the bureaucrats. He 
cannot supervise the administration, for it is a professionally trained 
apparatus and the modem monarch is never an expert, with the possible 
exception of military matters. Above all, the monarch is never a poli- 
tician with training obtained within the machinery of the parties or of 
diplomacy. Not only his education, but especially his constitutional 
position works against this. He does not gain his crown through a party 
contest, and the struggle for power is not his natural milieu, as it is for 
the politician. He does not personally experience the harsh realities 
of party life by descending into the political arena, but rather is removed 
from them through his privilege. There are born politicians, but they 
are rare. The monarch who is not one of them becomes a threat to his 
own and to the state's interests if he attempts to govern by himself, as 
did the Tsar, or to exert influence with political means — through 
"demagogy" in the broadest sense of the word — in speech and writing, 
for the sake of propagating his ideas or projecting his personality. He 
then endangers not only his crown — that would be his personal affair — 
but the survival of the state. However, this temptations-nay, necessity 
— arises inevitably for a modem monarch if he is confronted only by 
bureaucrats, that means, if parliament is powerless, as has been the case 
in Germany for decades. Even from a purely instrumental viewpoint 
this has severe drawbacks. If there is no powerful parliament, the 
monarch is today dependent upon the reports of officials for the super- 
vision of the work of other officials. This is a vicious circle. The con- 
tinuous war of the various ministries against one another, as was typical 
of Russia and also to some extent of Germany up to the present, is the 
natural consequence of such allegedly "monarchic" governments without 
a folitical leader. This conflict of "satraps" involves most of the-time not 



n ] Bureaucracy and Political Leadership 1407 

only differences of opinion, but personal rivalries; the clashes between 
the ministries serve their chiefs as vehicles in the competition for the 
ministerial positions. If these are treated merely as bureaucratic bene- 
fices, court intrigues, not substantive reasons or qualities of political 
leadership, determine incumbency. Everybody knows that personal 
power struggles are common in parliamentary states. The error lies in 
the assumption that monarchies are different in this regard. In truth, 
they have an additional problem. The monarch believes that he himself 
rules, whereas in fact behind this screen the bureaucracy enjoys the 
privilege of operating without controls and without being accountable 
to anybody. Flatterers surround the monarch with the romantic halo of 
power because he can replace the governing minister according to his 
discretion. However, monarchs like Edward VII of England and Leo- 
pold II of Belgium, who certainly were not outstanding personalities, 
wielded much greater power although and because they ruled in stricdy 
parliamentary fashion and never played a conspicuous public role, or 
at least never appeared in public in other than parliamentary trappings. 
It is pure ignorance if such monarchs are treated as "shadow kings" in 
the phraseology of the literati, and it is stupidity if they turn the 
philistine gossip about their morals into a political yardstick. History 
will judge differendy, even if their policies should ultimately fail — as 
so many great projects have come to naught. One of these two monarchs 
was even forced to change his court officials according to the parliamen- 
tary power constellation, but he brought together a world coalition; the 
other ruled only a small state, but he assembled a huge colonial empire 
(at least irifcomparison to our colonial fragments). Whoever wants' to 
lead in politics, whether he be monarch or minister, must know hoij to 
play the modern instruments of power. The parliamentary system elimi- 
nates only the politically incompetent monarch — for the country's bene^ 
fit. Is this a "night-watchman state" 1 ' that managed to- attach to itself, 
despite its very small population, the best parts of all continents? How 
philistine is this hackneyed phrase that betrays so much of the resent- 
ment of the Untertan. 

Let us now turn to parliament. 



6. Weak and Strong Parliaments, Negative 
and Positive Politics 

Modern parliaments are primarily representative bodies of those ruled 
with bureaucratic means. After all, a certain minimum of consent on 
the part of the ruled, at least of the socially important strata, is a pre- 



I408 PARLIAMENT AND GOVERNMENT IN GERMANY [ App. 11 

condition of the durability of every, even the best organized, domina- 
tion. Parliaments are today the means of manifesting this minimum 
consent. For certain actions of the public powers, enactment after pre- 
vious deliberation in parliament is obligatory; this includes especially 
the budget. The control over the raising of revenues — the budget right 
— is the decisive power instrument of parliament, as it has been ever 
since the corporate privileges of the estates came into being. However, 
as long as a parliament can support the complaints of the citizens against 
the administration only by rejecting appropriations and other legislation 
or by introducing unenforcable motions, it is excluded From positive 
participation in the direction of political affairs. Then it can only engage 
in "negative politics," that means, it will confront the administrative . 
chiefs as if it were a hostile power; as such it will be given only the 
indispensable minimum of information and will be considered a mere 
drag-chain, an assembly of impotent fault-finders and know-it-alls. In 
turn, the bureaucracy will then easily appear to parliament and its 
voters as a caste of careerists and henchmen who subject the people to 
their annoying and largely superfluous activities. 

Things are different when parliament has accomplished the follow- 
ing: Either, that the administrative heads must be recruited from its 
midst — the -parliamentary system proper — , or that they need the express 
confidence of its majority for holding office or must at least resign upon 
losing its confidence — the parliamentary selection of the leaders; that 
they must account for their actions exhaustively to parliament, subject 
to verification by that body or its committees — parliamentary account- 
ability of the leaders; further, that they must run the administration 
according to the guidelines approved by parliament — 'parliamentary 
control of the administration. Then the leaders of the dominant parties 
have a positive share, in government, and parliament becomes a factor 
of positive politics, beside the monarch who now governs no longer by 
virtue of his formal crown rights — at least not exclusively — , but by 
virtue of his personal influence, an influence which remains great in 
any case, but varies according to how prudent he is and how sure of his 
aims. This is what is meant by the Volksstaat [state of the people], ir- 
respective of whether the term is appropriate or not; by contrast, a par- 
liament of the ruled which can only resort to negative politics vis-a-vis 
a dominant bureaucracy represents a version of the Obrigkeitsstaat 
[state of the authorities]. We are here interested in the concrete con- 
sequences of the position of parliament. 

Whether we hate or love parliamentary politics — we cannot elimi- 
nate it. At most, parliament can be made politically powerless, as Bis- 
marck did with the Reichstag. In addition to the general consequences 



» ] _ Bureaucracy and Political Leadership i 409 

of "negative politics," the weakness of parliament has other results 
[which can he better understood if we first recall the role of a strong 
parliament]: Every conflict in parliament involves not only a struggle 
over substantive issues but also a struggle for personal power. Wherever 
parliament is so strong that, as a rule, the monarch entrusts the gov- 
ernment to the spokesman of a clear-cut majority, the power struggle 
of the parties will be a contest for this highest executive position. The 
fight is then carried by men who have great political power instincts 
and highly developed qualities of political leadership, and hence the 
chance to take over the top positions; for the survival of the party out- 
side parliament, and the coundess ideal, and pardy very material, inter- 
ests bound up with it require that capable leaders get to the top. Only 
under such conditions can men with political temperament and talent 
be motivated to subject themselves to this kind of selection through 
competition. 

Matters are completely different if under the label of "monarchic 
government" the appointment to the top positions is the outcome of 
bureaucratic advancement or accidental court acquaintance, and if a 
powerless parliament must submit to such a government formation. In 
this case, too, personal ambitions, apart from substantive issues, naturally 
play a role, but in very different, subaltern forms, and u directions 
such as have been pursued in Germany since 1890. Besides representing 
the local economic interests of influential voters, petty subaltern job 
patronage becomes the major concern of the parties. The clash between 
Chancellor Biilow and the Center party [in 1906] was not due to 
politial differences, but essentially to the Chancellor's attempt to repudi- 
ate the party's patronage rights which even today still shape the per- 
sonnel composition of some central agencies of the F-?ich. The Center 
party is not alone in this respect. The conservative parties continue 
their office monopoly in Prussia and try to scare the monarch with the 
spectre of "Revolution" whenever these benefices appear in danger. The 
parties which are permanendy excluded endeavor to compensate them- 
selves by running the municipal administrations and the public health 
insurance funds, and pursue in parliament, as the Social Democrats used 
to do, policies hostile to the government or alienated from the state. 
This is quite natural, for every party strives for power, that means, for 
a share in the administration and hence in the filling of offices. As far 
as the latter is concerned, our ruling strata are not to be outdone by 
any others, but they cannot be held accountable since job hunting and 
patronage occur behind the scenes and involve the subordinate positions 
which are not responsible for the personnel composition of the nvO 
service. Our bureaucracy, in turn, '.»eri(,'f'*s from this state of affairs by 



I 4 I O PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

being free from personal supervision; the only price it pays to the 
dominant parties are "tips" in the form of those small-time benefices. 
This is the natural result of the fact that the party (or party coalition) 
which actually provides the majority for or against the government is 
not itself officially called upon to fill the top political position. 

On the other band, this system permits qualified bureaucrats who 
nevertheless have no trace of statesman-like talent to maintain themselves 
in leading political positions until some intrigue forces them out in 
favor of similar personages. Thus, we have no less party patronage than 
any other country, but we have it in dishonesdy veiled form and in 
a manner which always favors certain partisan views acceptable at 
court. However, this partiality is by far not the worst aspect of the 
matter. It would be politically tolerable if it afforded at least an oppor- 
tunity for recruiting, from these court parties, leaders capable of guiding 
the nation. However, this is not the case. It would be possible only in 
a parliamentary system, or at least in one which makes the top positions 
available to parliamentary patronage. Here we encounter a purely formal 
obstacle embedded in the constitution. 



7. The Constitutional Weaknesses of the Reichstag 
and the Problem of Leadership 

Article 9 of the Reich constitution [of 1871] reads that "nobody can 
be simultaneously a member of the Bundesrat and of the Reichstag." 
Hence, whereas in parliamentary systems it is considered absolutely 
necessary that the leaders of the government are members of parliament, 
this is legally precluded in Germany. The Imperial chancellor, a minis- 
ter representing his state iti the Bunctesrat, or an Imperial secretary of 
state, can be a member of a state parliament — for example, of the 
Prussian diet — and can there influence or even lead his party, but he 
cannot sit in the Reichstag. This stipulation was simply a mechanical 
imitation of ihe exclusion of the British peers from the House of Com- 
mons (and probably carried over from die Prussian constitution). 
'Hence, it was an act of thoughtlessness; it must now be removed. This 
will not in itself be tantamount to the introduction of the parliamentary 
system or of parliamentary patronage, but it will create the opportunity 
* for a politically competent deputy to hold at the same time a major 
position in the Imperial government. It is hard to see why a deputy who 
proves suitable for a top position should be forced to abandon his po- 
litical base before he can assume his post. 



t". 



« ] Bureaucracy and Political Leadershif i 4 i l 

If Bennigsen had entered the government at the time [1877/78] 
and had left the Reichstag, Bismarck would have turned an important 
political leader into an administrative official without parliamentary 
support, and the [National Liberal] party would have been taken over 
by its left wing or it would have disintegrated — and this perhaps was 
Bismarck's intent. Today the [National Liberal] deputy Schiffer has 
lost his influence in the party by joining the government and thus has 
surrendered it to its big business wing. 1 * In this manner, the parties 
are "beheaded," but instead of effective politicians the government gets 
officials without professional training in a bureaucratic career and with- 
out a parliamentarian's influence. This results in the cheapest conceiv- 
able form of "buying off" the parties. Parliament becomes a stepping- 
stone for the career of talented would-be secretaries of state: This 
typically bureaucratic idea is championed by political and legal literati 
who consider the problem of German parliamentarism thus solved in a 
specifically "German" manner! These same circles sneer at job hunting, 
which appears to them as an exclusively "Western European" and 
"democratic" phenomenon. They will never understand that parliamen- 
tary leaders seek office not for the sake of salary and rank, but of power 
and the attending responsibility, and that these leaders can succeed 
only if they have a parliamentary following; these circles will also never 
comprehend that there is a difference between making parliament a 
recruiting ground for leaders or for bureaucratic careerists. For decades 
the same groups have ridiculed the German parliaments and their 
parties for seeing in *he government something of a natural enemy. But 
they are not in the least disturbed by the fact that because of the limita- 
tion — directed exclusively against the Reichstag — of Article 9, Bundesrat 
and Reichstag are treated by the law as hostile powers which can relate 
to one another only through declarations from the Iatter's rostrum and 
the former's conference table. It should be left to the conscientious con- 
sideration of a statesman, of the government empowering him, and 
of his voters, whether he can combine with his office a parliamentary 
mandate, party leadership or, at any rate, participation in a party, and 
whether the instructions according to which he votes in the Bundesrat 
are compatible with his own convictions for which he stands in the 
Reichstag.™ The man who is responsible for instructing the "presiding"' 
[i.e., the Prussian] vote in the Bundesrat — the Imperial chancellor and 
Prussian foreign minister— should be free to exert his influence as a 
party member in the Reichstag, in addition to presiding over the Bun- 
desrat under the supervision of the representatives of the other states. 
Nowadays, of course, it is considered "noble" if a statesman stays aloof 
from the parties. Count Posadowsky even believed that he owed it to 



I/}I2 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. U 

his earlier office [secretary of the interior from 1897 until 1907] to re- 
main unaffiliated with any party, that means, to misuse the Heichstag 
in the role of an ineffective academic rhetorician. Why ineffective? 
Because of the way in which parliament conducts its business. 

The speeches of the deputies are today no longer personal professions, 
still less attempts to win over opponents. They are official statements 
addressed to the country ("through the window"). After representatives 
of all parties have spoken once or twice in turn, the Reichstag debate 
is closed. The speeches are submitted beforehand to a party caucus, or 
at least agreed upon in all essentials. The caucus also determines who 
will speak for the party. The parties have experts for every issue, just 
like the bureaucracy. It is true that besides their worker-bees they have 
drones who are useful for rhetorical fireworks, if used cautiously. By 
and large, however, those who do the work also have the influence. 
Their wo~k is done behind -the scenes, in the meetings of the committees 
and the caucuses and especially in the private offices of the most active 
deputies. For instance, Eugen Richter's position was impregnable, even 
though he was very unpopular in his own [Progressive] party, because 
of his great working capacity and his unexcelled knowledge of the 
budget. He may have been the last deputy who could check up on the 
war minister's use of every penny, down to the last canteen. Despite 
their annoyance, officials of the War Department have several times 
expressed their admiration to me about Richter's grasp of these matters. 
Presently Matthias Erzberger s position in the Center party rests on his 
tremendous, bee-like industry, without which the influence of this 
politician, whose political talent is quite limited, would scarcely be 
understandable." 

However, industry qualifies a man neither for leadership in govern- 
ment nor in a party — -two things which are by no means as different as 
our romantic literati believe. To my knowledge, all German parties had 
in the rnst men with the talent of political leadership: von Bennigsen, 
von Miquel, von Stauffenberg, Volk and others among the National 
Liberals, von Mallinckrodt and Windhorst in the Center party, von 
Bethusy-Huc, von Minnigerode, von Manteuffel among the Conserva- 
tives, vor Saucken-Tarputschen amor>g the Progressives, and von Voll- 
mar among the Social Democrats. They all passed away or left parlia- 
ment, like Bennigsen in the eighteen-eighties, because they could not 
enter the government as party leaders- If deputies do become ministers, 
like von Miquel and MoIIer, they must abandon their earlier political 
commitments in order to fir into the purely bureaucratic ministries. (At 
the time MoIIer said that he was in the unpleasant position of having 
made his private views known in his earlier speeches as ;; deputy!) 



» ] Bureaucracy and Political Leadership i 4 1 3 

However, there are a great many born leaders left in Germany. But 
where are they? The' answer is now easy. As an illustration, I refer to 
a man whose political views and attitudes toward social reform are 
radically opposed to mine: Does anybody believe that the present di- 
rector of Krupp, formerly a civil servant and active in East-German 
colonization politics, was destined to manage Germany's largest industrial 
enterprise rather than to run a key ministry or a powerful parliamen- 
tary party?" Why then does he do the one and would presumably, 
under the present conditions, refuse the other? To make more money? 
I assume instead another very simple reason: Namely, that in face of 
the powerlessness of parliament and the resulting bureaucratic character 
of the ministerial positions a man with a strong power drive and the 
qualities that go with it would have to be a fool to venture into this 
miserable web of mutual resentment and on this slippery floor of court 
intrigue, as long as his talents and energies can apply themselves in 
■ fields such as the giant industrial enterprises, cartels, banks and whole- 
sale firms. People of his type prefer to finance All-German newspapers 
and to open them to the scribbles of the literati. Stripped of all phrase- 
ology, our so-called monarchic government amounts to nothing but this 
process of negative selection which diverts all major talents to the serv- 
ice of capitalist interests. For only in the realm of private capitalism is 
there today anything approaching a selection of men with leadership 
talents. Why? Because Gemiitlichkeit — in this case: the rhetoric of the 
literati — comes to an end as soon as economic interests involving millions 
and billions of Marks and tens and hundreds of thousands of workers 
are affected. 21 And why is there no such selection in government? Be- 
cause one of the worst legacies of Bismarck's rule has been the fact that he 
considered it necessary to seek cover for his caesarist regime behind the 
legitimacy of the monarch. His successors, who were no Caesars but 
sober bureaucrats, imitated him faithfully. The politically uneducated 
nation took Bismarck's rhetoric at its face value, and the literati pro- 
vided the usual applause. This stands to reason because they examine 
, the future officials and consider themselves officials and fathers of of- 
ficials. Their resentment is directed against everybody who seeks and 
gains power without legitimizing himself through a diploma. Since Bis- 
marck had dishabituated it from worrying about public affairs, and for- 
eign policy in particular, the nation permitted itself to be talked into ac- 
cepting something as "monarchic government" which in truth amounted 
to the unchecked rule of the bureaucracy. Under such a system qualities 
of political leadership have never been born and brought to fruition any- 
vhfcff. 1 ir. Jic world. Cur -civil service does indeed include men with 
Waders!: ij, ■ijuaiiii'j.i: wi; certainly would not want to deny this here. 



I 4 I 4 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff- 11 

However, the conventions and internal peculiarities of the bureaucratic 
hierarchy severely impede the career opportunities precisely of such 
talents, and the whole nature of modem officialdom is most unfavorable 
to the development of political autonomy (which must be distinguished 
from the inner freedom of the private individual). The essence of 
politics — as we will have to emphasize time and again — is struggle, the 
recruitment of allies and of a voluntary following; to get training in this 
difficult art is impossible under the career system of the Obrigheitsstaat. 
It is well-known that Bismarck's school was the Frankfurt Federal Diet.* 4 
In the army, training is directed toward combat, and this can produce 
military leaders. However, for the modern politician the proper palaestra 
is the parliament and the party contests before the general public; ; 
neither competition for bureaucratic advancement nor anything else 
will provide an adequate substitute. Of course, this is true only of a 
parliament and a party whose leader can take over the government. 

Why in the world should men with leadership qualities be attracted 
by a party which at best can change a few budget items in accordance 
with the voters' interests and provide a few minor beneBces to the 
proteges of its bigshots? What opportunities can it offer to potential 
leaders? The tendency towards merely negative politics of our parlia- 
ment is reflected today in the most minute details of the agenda and con- 
ventions of the Reichstag and the parties. I know of quite a few cases in 
which young political talents were simply suppressed by the old guard 
of deserving local notables and party bigwheels. This happens in every 
guild, and it is quite natural in a powerless parliament restricted to 
negative politics, since in an institution of this kind the guild instincts 
will predominate. A party oriented toward sharing governmental power 
and responsibility could never afford this; every member would know 
that the survival of the party and of ail the interests which bind him to 
it depends upon its subordination to qualified leaders. Nowhere in the 
world, nit even in England, can the parliamentary body as such govern 
<Tj.,d determine policies. The broad mass of deputies functions only as a 
following for the leader or the few leaders who form the government, 
ant! it blindly follows them as long as they are successful. This is the 
-■pay it should be. Political action is always determined by the "principle 
of small numbers," that means, the superior political maneuverability 
of small leading groups. In mass states, this caesarist element is in- 
eradicable. 

However, this element alone guarantees that responsibility toward 
the public, which would evaporate within an assembly governing at 
large, rests upon clearly identifiable persons. This is especially true of 
a democracy proper. Officials elected direcdy by the people have proven 



ii ] Bureaucracy and Political Leadership i 4 1 5 

themselves in two situations: First, in the local cantons, in which the 
% members of a stable population know one another personally and where 
elections can be determined by a person's reputation in the neighbor- 
hood community. The second case, which holds true only with con- 
siderable reservations, is the election to the highest political office in a 
mass state. It is rarely the most outstanding man, but usually at least 
a suitable political leader who obtains supreme power in this way. How- 
ever, for the mass of officials in the middle ranks, especially those who 
need a specialized training, popular election as a rule fails completely, 
and for understandable reasons. In the United States the judges ap- 
pointed by the President towered above those elected by the people in 
terms of capability and integrity. The man who appointed them was, 
• after all, responsible for the official's qualification, and the ruling party 
suffered later if gross abuses occurred. In the United States, equal suf- 
frage has resulted time and again in the election, as lord mayor, of a 
popular trustee who was largely free to create his own municipal ad- 
ministration. The English parliamentary system equally tends toward 
the development of such caesarist features. The prime minister gains 
an increasingly dominant position toward parliament, out of which he 
has come. 

Just like every other human organization, the selection of political 
leaders through the parties has its weaknesses, but upon these the Ger- 
man literati have dilated ad nauseam during the last decades. Of course, 
the parliamentary system, too, expects qf the individual that he subordi- 
nate himself to a man whom he can o'fon accept only as the "smaller 
evil." But the Ohrigkeitsstaat gives him no choice at all and imposes 
upon him bureaucrats instead of leaders, which certainly makes for a 
bit of a difference. Moreover, plutocracy flourishes in Germany as much 
as in other countries, if i,iiiy in somewhat different forms. The literati 
depict the great capitalist powers in the darkest colors and, it should be 
noted, without any encumbering knowledge. There are some solid ma- 
' sons behind the fact that these veiy poweis, which know their own 
interests far better thar those am.cha;, /:rviists, rai.ge themselves unan- 
imously on trie sHe of rhe bureaucratic Obrigkeitsitaat and against de- 
mocracy and parliamentarism; this is especially trus of heavy industry, 
the most ruthless of these capitalist powers, but these reasons remain 
beyond the ken of the literary philistines In their moralizing fashion, 
they score the fact that the party leaders are moved by the will to power 
and their following by selfish interest m office-holding — as if the bu- 
reaucratic aspirants were not equally career- and salary-minded, but 
rather inspired by the most selfless motives. The role of demagogy in 
the power struggle is demonstrated to everybody by the current (January 



I 4 I 6 PARLIAMENT AND GOVERNMENT IN CERMANY [ Aflf, U 

1918) newspaper campaign about who should be the German foreign 
minister, a campaign encouraged from certain official quarters. 11 This 
proves that an allegedly monarchic government facilitates the most 
pernicious misuse of the press in the pursuit of office and of inter- 
departmental rivalries. This state of affairs could not be aggravated in 
any parliamentary system with powerful parties. 

The motives of party members are no more merely idealist than are 
the usual philistine interests of bureaucratic competitors in promotion 
and benefices. Here as there, personal interests are usually at stake (and 
this will not change in the vaunted state of corporate solidarity, which 
the literati envision). It ts of crucial importance, however, that these 
universal human frailties at least do not prevent the selection of capable 
leaders. But in a party this is possible only if the leaders know that in 
case of victory they will have the powers and the responsibilities of 
government. Only then is this selection possible, but it is not assured 
even then. For only a working, not a merely speech-making parliament 
can provide the ground for the growth and selective ascent of genuine 
leaders, not merely demagogic talents. A working parliament, however, 
is one which supervises the administration by continuously sharing its 
work. Before the war this was not possible in Germany, but afterward 
it must be possible, or we will have the old misere. This is our next 
topic. 



Ill 

The Right of Parliamentary Inquiry and the 
Recruitment of Political Leaders 



The whole structure of the German parliament has been oriented 
toward negative folitics: critique and complaint, the deliberation, modi- 
fication and passing of governmental bills. All parliamentary conven- 
tions correspond to this uondition. Because ut the lack of public interest, 
we unfortunately do not have any political analyses of the actual opera- 
tions of the Reichstag, us they exist for foreign parliaments; we only 
have solid legal studies of the rules of procedure. However, if you talk 
to a deputy about ar.v iU;-.iden'ata of pari.:"-. in-, ntary organization, you are 
immedijitelv confrotv -i\ with numerous --..'onventions which exist onlv 



Hi ] Parliamentary Inquiry & Recruitment of Leaders i 4 1 7 

for the comforts, vanities, wants and prejudices of tired parliamentary 
dignitaries and impede any political effectiveness of parliament. In this 
way even the simple task of continuous parliamentary supervision over 
the bureaucracy is handicapped. Is this supervision superfluous? 

Our officialdom has been brilliant wherever it had to prove its sense 
of duty, its impartiality and mastery of organizational problems in the 
face of official, clearly formulated tasks of a specialized nature. The 
present writer, who comes from a civil-service family, would be the last 
to let this tradition be sullied. But here we are concerned with political, 
not bureaucratic achievements, and the facts themselves provoke the 
recognition which nobody can truthfully deny: That bureaucracy failed 
completely whenever it was expected to deal with -political problems. 
This is no accident; rather, it would be astonishing if capabilities in- 
herently so alien to one another would emerge within the same po- 
litical structure. As we have pointed out, it is not the civil servant's task 
to enter the political arena fighting for his own convictions, and in this 
sense to engage in the political struggle. On the contrary, his pride lies 
in maintaining impartiality, hence in, disregarding his own inclinations 
and opinions, in order to adhere conscientiously and meaningfully to 
general rule as well as special directive, even and particularly if they 
do not correspond to his own political attitudes. But the heads of the 
bureaucracy must continuously solve political problems — problems of 
Machtpolitik as well as of Kvlturpolitik. Parliament's first task is the 
supervision of these policy-makers. However, not only the tasks assigned 
to the top ranks of the bureaucracy but also every single technicality 
on the lower administrative levels may become politically important and 
its solution may depend on political criteria. Politicians must be the 
countervailing force against bureaucratic domination. This, however, 
is resisted by the power interests of the administrative policy-makers, 
who want to have maximum freedom from supervision and to establish 
a monopoly on cabinet posts. 



1 . Effective Supervision and the Power Basis 
of Bureaucracy 

Effective supervision over the officialdom ' depends upon certain 
preconditions. 

Apart from being rooted in the administrative division of labor, the 
power of all bureaucrats rests upon knowledge of two kinds: First, tech- 
nical know-how in the widest sense of the word, acquired through 



I 4 I 8 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

specialized training. Whether this kind of knowledge is also represented 
in parliament or whether deputies can privately consult specialists in a 
given case, is incidental and a private matter. There is no substitute-ior 
the systematic cross-examination (under oath) of experts before a parlia- 
mentary commission in the presence of the respective departmental 
officials. This alone guarantees public supervision and a thorough in- 
quiry. Today, the Reichstag simply lacks the right to proceed in this 
fashion: the constitution condemns it to amateurish ignorance. 

However, expertise alone does not explain the power of the bu- 
reaucracy. In addition, the bureaucrat has official information, which 
is only available through administrative channels and which provides 
him with the facts on which he can base his actions. Only he who can 
get access to these facts independently of the officials' good will can ef- 
fectively supervise the administration. According to the circumstances, 
the appropriate means are the inspection of documents, on-the-spot in- 
quiry and, in extreme cases, the official's cross-examination under oath 
before a parliamentary commission. This right, too, is withheld from 
the Reichstag, which has deliberately been made incapable of gaining 
the necessary information. Hence, in addition to dilettantism, the Reichs- 
tag has been sentenced to ignorance — plainly not for technical reasons, 
but exclusively because the bureaucracy's supreme power instrument is 
the transformation of official information into classified material by 
means of the notorious concept of the "service secret." In the last 
analysis, this is merely a means of protecting the administration against 
supervision. While lower ranks of the bureaucratic hierarchy are super- 
vised and criticized by the higher echelons, all controls, whether tech, 
nical or political, over these policy-making echelons have failed com- 
pletely. The manner in which administrative chiefs answer questions 
and critiques in the Reichstag is often disgraceful for a self-confident 
people; it has been possible only because parliament cannot avail itself, • 
through the "right of investigation" (EnqtteterechO, of the facts and 
technical viewpoints, knowledge of which alone would permit steady 
co-operation with and influence upon the administration. This must be 
changed first. Of course, the Reichstag committees are not supposed 
to immerse themselves in comprehensive studies and to publish fat 
volumes — this will not happen anyway because the Reichstag is too busy 
with other things. The parliamentary right of inquiry should be an 
auxiliary means and, for the rest, a whip, the mere existence of which 
will force the administrative chiefs to account for their actions in such 
a way as to make its use unnecessary. The best accomplishments of the 
British parliament have been due to the judicious use of this right. The 
integrity of British officialdom and the public's high level of political 



iii ] parliamentary Inquiry & Recruitment of Leaders 14 1 9 

sophistication ave largely founded on it; it has often been emphasized 
that the best indicator for political maturity lies in the manner in which 
the committee proceedings are followed by tHe ikitish press and its 
readers. This maturity is reflected not in votes of no-confidence, indict- 
ments of ministers and similar spectacles of French -I tali an unorganized 
parliamentarism, but in the fact that the nation keeps itself informed 
about the conduct of its affairs by the bureaucracy, and continuously 
supervises it. Only the committees of a powerful parliament can be the 
vehicle for exercising this wholesome pedagogic influence. Ultimately, 
the bureaucracy can only gain by such a development. The public's 
relationship to the bureaucracy has rarely shown such want of compre- 
hension as in Germany, at least in comparison with countries that have 
parliamentary traditions. This is not astonishing. In our country, the 
problems with which the officials must deai are nowhere visible. Their 
achievement can never be understood and appreciated and the sterile 
complaints about "Saint Bureaucratius" — instead of positive critique — 
cannot be overcome so long as the present condition of uncontrolled 
bureaucratic domination persists. Moreover, the power of officialdom 
wouid not be weakened wherever it has its proper place. In depart- 
mental affairs, the permanent Under-Secretary (Gekeirorat) who has 
specialized in a given field has the edge over his minister, even the 
minister who has been a career official; this is true for England just as 
for Germany. That is quite appropriate, for nowadays specialized train- 
ing is an indispensable precondition for the knowledge of the technical 
means necessary to the achievement of political goals. But policy-making 
is not a technical affair, and hence not die business of the professional 
civil servant. 



2. Parliament as a Proving-Ground for Political Leaders 

The continuous supervision which would be introduced by the 
seemingly unspectacular right of parliamentary inquiry is the basic pre- 
condition for all further reforms aiming at an increase of parliament's 
share in government. This change is also the indispensable presupposi- 
rion for turning parliament into a recruiting ground of political leaders. 
German literary fashion likes to discredit parliaments as arenas for "mere 
speech-making." Similarly, though with far more wit, Carlyle had 
thundered against the British parliament three generations ago, and yet 
it became the decisive agent of British world power. Today political 
(and military) leaders no longer wield the sword but resort to quite 
prosaic sound waves and ink drops: written and spoken words. What 



I 4 :■ J PARLIAMENT AND GOVERNMENT IN GERMANY [ Apf. 11 

matter is that intelligence and knowledge, strong will and sober ex- 
perience determine these words, whether they be commands or cam- 
paign speeches, diplomatic notes or official statements in parliament. 
However, ignorant demagogy or routinized impotence — or both — prevail 
in a parliament which can only criticize without getting access to the 
facts and whose leaders are never put into a situation in which they 
must prove their mettle. It is part of that sorry story of political im- 
maturity, which a whollv unpolitical era produced in our country, that 
the German philistine looks at political institutions such as the British 
parliament with eyes blinded by his own environment; he .believes that 
he can smugly look down at them from the heights of his own political 
impotence and he fails to consider that the British parliament became, 
after all, the proving ground for those political leaders who managed 
to bring a quarter of mankind under the rule of a minute but politic.]!! 
prudent minority. The main point is that to a significant degree tl-is 
subordination has been voluntary. Where are the comparable achieve- 
ments of the miich-praised German Obrigkettsstaat? The political prepa- 
ration for such achievements is, of course, not acquired by making 
ostentatious and decorative speeches before parliament, but only through 
steady and strenuous work in a parliamentary career. None of the out 
standing English leaders rose to pre-eminence without experience in 
the committees and, often, in various government agencies. Only such 
intensive training, through which the politician must pass in the com- 
mittees of a powerful working parliament, turns such an assembly into 
a recruiting ground not for mere demagogues but for positively partici- 
pating politicians. Until today the British parliament has been un- 
paralleled in this respect (as nobody can honestly deny). Only s-jch 
co-operation between civil servants and politicians can guamtee the 
continuous supervision of the administration and, with it, the political 
education of leaders and led. Publicity of administration, enforced by 
effective parliamentary oversight, must be demanded as a precondition 
for any fruitful parliamentary work and political education. We, too, have 
begun to embark on this road. 



3. The Importance of Parliamentary Committees 
in War and Peace 

The wartime exigencies, which have done away with quite a few 
conservative slogans, have brought into being the M^.in Committee 
(Hauftattsschuss) of the Reichstag?* its operations still leave much to 
he desired, but it is at least a step toward an effective parliament. Its 
insufficiency from a political viewpoint has been due to the pernicious 



«j ] Earliamentary Inquiry & Recruitment of Leaders i 421 

and unorganized form in which publicity was given to very sensitive 
problems; the discussions occurred among too large a circle of deputies, 
and for that reason they were bound to be emotional. It was simply 
dangerous mischief that hundreds of persons knew about confidential 
military and diplomatic matters (witness the issue of submarine war- 
fare); as a result, such information was handed on privately or found 
its way into the press, inaccurately or in the form of sensational allusion. 
Current deliberations of foreign and military policy belong before a 
small circle of trusted representatives of the parties. Since politics is 
always made by a small number of persons, the parties, too, must be 
organized for the vital political issues not in the mariner of guilds, but 
in that of a following. Their spokesmen must be "leaders," that means, 
they must have unlimited authority for making important decisions (or 
they must be able to get this authority within a few hours from com- 
mittees that can be 'called together at any -time). For its designated 
single purpose, the Committee of Seven of the Reichstag was a step that 
seemingly led in this direction. 2 ' The vanity of the administrative chiefs 
was taken into account by calling this body '"provisional" and by at- 
tempting not to treat the parliamentarians as representatives of their 
parties — an attempt that would have destroyed the.. Committee's politi- 
cal significance and fortunately failed. There were good technical rea- 
sons for bringing these seven party representatives together with govern- 
ment representatives, but instead of the seven plenipotentiaries of the 
Bundesrat it would have been better to draw upon just three or four 
delegates of the larger non-Prussian states and, for the rest, to call in 
the four or five top military men or their deputies. At any rate, only a 
small group of men who are obliged to be discreet can prepare political 
decisions in very tense political situations. Under the wartime condi- 
tions it was perhaps appropriate to establish such a mixed committee 
uniting the representatives of the government with those of all major 
parties. In peacetime, an arrangement that would draw in party repre- 
sentatives on a "similar basis might be equally useful for the deliberation 
of sensitive political issues, especially in foreign politics. For the rest, 
however, this system has a limited utility; it is neither a substitute for 
genuine parliamentary reform nor a means for the creation of co- 
ordinated governmental policies. If these policies are to be supported by 
several parties, consensus could be established in discretionary meetings 
between the government leaders and representatives of the parliamentary 
majority. A committee in which Independent Socialists and Conserva- 
tives sit together cannot possibly fulfill this function of formulating 
a political will. Any expectations along these lines would he politically 
unrealistic, since such structures cannot facilitate the pursuit of consist- 
ent policies. 



I 4 2 2 PARLIAMENT AND GOVERNMENT IN GERMANY [ App. II 

By contrast, for the peacetime supervision of the bureaucracy spe- 
cialized mixed committees, following upon ibe Hauptaussckuss, might 
well prove suitable, provided the public is kept informed and effective^ 
procedures are designed tbat can preserve uniformity in the face of the,- 
specialized subject matter dealt with in the various subcommittees 
which would draw upon representatives from the Bundesrat and the 
ministries. The possible political effectiveness of such an arrangement 
will, of course, depend • completely upon the future role of the Reichs* 
tag and the structure of its parties. If things remain as they are, if the 
mechanical obstacle of Article 9 of the constitution is retained and 
parliament continues to be limited to "negative politics" — and the bu- 
reaucracy obviously aims at this perpetuation — , then the parties will ■ 
probably impose petty mandates on their representatives in the com- 
mittees; they will certainly not grant them policy-making powers; more- 
over, each will go its own way pursuing petty emoluments for its 
proteges. The whole arrangement would then become a useless and 
time-consuming annoyance to the administration, not a means of po- 
litical training and of fruitful co-operation. The positive result would 
in that case at best be something similar to the proportional patronage 
practiced in some Swiss Cantons: the individual parties- peacefully 
divide their influence over the administration, and this lessens conflict 
among them. (However, it is very doubtful whether even this relatively 
negative result can be obtained in a mass state that is confronted with 
major political tasks. To my knowledge, the Swiss have divergent 
opinions about the positive effects of this practice, and these must of* 
course be evaluated very differently in a large state.) Uncertain as these . 
idyllic perspectives are, he who values most the elimination of party 
conflict will be pleased about them, and the bureaucracy will expect 
from such a practice the perpetuation of its power by continuing the 
system of petty payoffs. If, in addition, bureaucratic positions were to 
be divided proportionally among the various parties acceptable at court, 
it would be even easier to produce "happy faces all. around." However, 
such a peaceful redistribution of benefices in the Prussian interior ad- 
ministration is most unlikely, given the monopoly of the Conservative 
party on the posts of Landr'ate, Reglerungs- and Oberprasidenten. More- 
over, in purely political terms, not much more would come out of it 
than benefices for party bureaucrats, rather than political power and 
responsibility for party leaders. This would certainly not be a suitable 
means for raising the political level of parliament. It would be a com- 
pletely open question whether in this manner the public supervision 
of the administration and the requisite public maturity could he 
increased. 

At any rate, even the simplest administrative matters cannot be 



m ] Parliamentary Inquiry & Recruitment of Leaders 1413 

adequately discussed in such a bureaucratized committee unless its right 
to procure the necessary technical and administrative information at 
any time is fully guaranteed. The bureaucracy's status interests, or more 
bluntly, its vanities and its desire to perpetuate the absence of controls, 
are the sole obstacles in the path of this demand — which, moreover, 
does not even imply the introduction of parliamentary government, 
but merely one of its technical preconditions. 

The only substantively relevant objection which constitutional ex- 
perts usually raise against the right of inquiry is that the Reichstag is 
completely autonomous with regard to its agenda, and hence the given 
majority might one-sidedly refuse an investigation or influence it in such 
a fashion as to make unwelcome findings impossible. Without any 
doubt, this discretion (Article 27 of the Reich constitution), which was 
adopted uncritically from English theory, is not suitable here. The 
right of inquiry must be guaranteed by new legislation; in particular, it 
must be established unconditionally as a minority right — let us say, in 
the form that one hundred deputies must be able to demand an inquiry, 
and such a minority must of course also have the right to be represented 
in committees, to ask questions and to write dissenting opinions. To 
begin with, this is necessary in order to provide the countervailing 
power of publicity against any abusive parliamentary majority and its 
well-known dangers, a counterweight that does.not exist in other states 
and up to now has been effective in England only by virtue of the 
mutual party courtesy. However, other guarantees will also be required. 
As long as the industries compete with one another, especially those of 
different countries, it will be imperative to protect- their technological 
secrets against tendentious publicity. The same protection must be ex- 
tended to military technology, and also to pending questions of foreign 
policy, which prior to their ultimate decision shoirfd^be discussed only 
before a small group. It is an error of some, particularly of Russian, 
literati that foreign affairs — such as the conclusion of a peace between 
warring nations — can be successfully conducted by outdoing one another 
in the public pronouncement of general "principles," instead of resorting 
to sober deliberations of the best possible compromise between the in- 
evitably antagonistic national interests that lurk behind these alleged 
"principles." 1 * At this very moment the facts make a mockery out of 
this notion. Certainly the means by which the faults of our past must 
be remedied are very different from these amateurish ideas of political 
literati. The opinion widely held in democratic circles that public di- 
plomacy is a panacea — and always works for peace — is in this very 
generalized form a misconception. It has a certain appropriateness for 
final and thoroughly considered positions, but not — as long as there 
are competing states — for the process of deliberation; the same holds 



I 4 2 4 PARLIAMENT AND GOVERNMENT IN GERMANY [ App. II 

true, of course, for competing industries. In direct contrast to the utility 
of public scrutiny in the realm of public administration, at the stage 
of foreign policy deliberations such publicity can most severely disturb 
the rationality and soberness of decision-making and hence even en- 
danger or prevent peace. The events of the present war have demon- 
strated this very clearly. However, we shall discuss foreign politics in 
a separate section [cf. sec. iv r below]. 



4 . Domestic Crises and the Lack of 
Parliamentary Leadership ,, 

At this point we would merely like to add some observations on the 
manner in which nowadays the lack of parliamentary leadership shows 
up in domestic crises. The events of Erzberger's [peace] move in July 
[1917] and of the two subsequent crises were instructive on this score. 1 * 
All three occasions have clearly shown the consequences of a situation 
in which 1) government and parliament confront one another as divided 
organs, the latter being a "mere" representation of the ruled and there- 
fore oriented toward "negative politics," 2) the parties are guild-like 
bodies since political leaders cannot find their vocation in parliament and 
hence no place in the parties, 3) the executive is in the hands of bu- 
reaucrats who are neither party leaders nor continuously in touch with 
them, but instead stand "above" the parties — to use the conventional 
status-conscious phraseology — and hence cannot lead them.. When a 
strong parliamentary majority insisted on a positive decision- by tlje 
government, the system failed at once. The puzzled government had to 
let the reins drag because it had no foothold in the party organizations. 
The Reichstag presented a spectacle of complete anarchy because the 
(so-called) party leaders had never held executive positions and were 
also at the time not considered future heads of government. The parties 
were confronted with a completely novel task to which neither their 
organization nor their personnel could measure up — the formation of a 
government. Of course, they were totally unable to succeed on this 
score, nor did they really try, for none of them, from the extreme right 
to the extreme left, had a man who was a recognized leader; the same 
held for the bureaucracy. 

For forty years all parties have operated on the assumption that the 
Reichstag merely has the function of "negative politics." The "will to 
impotency," to which Bismarck had condemned them, was shockingly 
obvious [in July 1917]. They did not even participate in the selection 
of the new leadership; the vanity of the bureaucracy would not even 
tolerate that much at this critical moment, although the most simple pru- 



Hi ] Parliamentary Inquiry & Recruitment of Leaders 1425 

dence would have prescribed it. Instead of putting to the parties the 
captious question whom they would like to propose ss candidates or, 
more practically, how they looked upon the various possible candidates, 
the bureaucracy did not budge from its prestige-ridden view that the 
formation of the government did not concern the Reichstag. Forces 
outside of parliament [in particular, General Ludendorff] intervened 
and set up the new government, which in turn did not submit to the 
Reichstag a definite proposal with a categorical demand for a clear Yes 
or No answer. As everyone remembers, the new chancellor [Dr. Georg 
Michaelisj was forced into making several contradictory statements about 
the most important point [the Peace Resolution of the majority parties] 
and had to accept supervision by the Committee of Seven on a point 
of foreign affairs [the German response to the Papal peace note of 
August 1917] simply because he did not have parliament's confidence. 
It goes without saying that this unpleasant spectacle, which was bound 
to impair Germany's prestige, reinforced the literati's comforting convic- 
tion that parliamentarism was "impossible" in Germany; they kept talk- 
ing of parliament's "failure." Actually, something very different failed: 
the bureaucracy's attempt at manipulating parliament, the very system 
that for decades had been at work, with tHe applause of the literati, to 
prevent parliament from making any positive political contributions, all 
in the interest of bureaucratic independence. The situation would have 
been completely different in any other mode of government in which 
responsibility rested squarely, or at least significantly, upon the shoulders 
of the party leaders; this would have offered an opportunity for political 
talents to help shape the country's fortunes from inside parliament. Then 
the parties could not have permitted themselves such- a petty-bourgeois 
and guild-like organization as the one now prevailing in the Reichstag. 
They would have been compelled to subordinate themselves to leaders 
instead of to diligent civil-service types, such as prevailed especially in 
the Center Party, who would lose their nerve at the crucial moment. 

~ In such a crisis the leaders would have been obliged to form a coalition, 
which would have proposed to the monarch a constructive program and 
the men capable of carrying it out However, under the given circum- 
stances nothing but purely negative politics were possible. 

[Michaelisj the new chancellor selected from outside parliament [in 
Jury 1917], was confronted with a chaotic situation that soon resulted 
in the old condition. True enough, a number of very capable parlia- 
mentarians moved into high government office, but because of Article 9 
of the Constitution they lost -influence in their own parties, which 

,thm- were be he aded and became disoriented.'* The same happened in 
theiaises d 0fmjtt and October [191 7]. Again die government" failed 
completely becwute the men in charge clung tenaciously to the view that 



1426 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

they should not maintain continuous contact with the party leaders and 
not even hold preliminary talks with representatives of those parties 
whose backing they desired 01 hoped for. The mere fact that the new 
chancellor appointed in November [1917, Count HertlingL, got in touch 
with the majority parties before taking office, and the further fact that 
all purely political ministries were now taken over by experienced 
parliamentary deputies, made it possible at long last to run the machinery 
of domestic politics with reasonable ease, although Article 9, Sentence 
2, continued to show its harmful effects." The January [1918] crisis 
proved even to the most benighted mind that parliament is not the source 
of our domestic troubles; rather, they have two sources: (1) the abandon- 
ment of Bismarck's strict principle that the generals conduct the war 
according to military rationale but that the head of the government 
concludes peace according to -political considerations (of which stra- 
tegic desiderata are only one factor); (2) even more importandy, the 
fact that some subaltern courtiers found it compatible with an allegedly 
"monarchic" government to leak policy deliberations to the press to 
benefit certain political parties. SI 

Our conditions can teach everyone that rule by career officials is not 
tantamount to the absence of party rule. A Landrat must be a Conserva- 
tive in Prussia, and since 1878 — when the eleven most fruitful years of 
German parliamentary woik ended — our pseudo-parliamentarism has 
rested on the partisan axiom that every government and its representa- 
tives must be "conservative," with only a few concessions to the patronage 
of the Prussian bourgeoisie and of the Center party. This and nothing 
else is meant by the "impartiality" of the bureaucracy. This state of 
affairs has not been changed by the lesson which the war taught in all 
other countries: that all parties sharing in the government become 
"patriotic." The partisan interests of the conservative bureaucracy and 
of its allied interest groups dominate the government. We are now 
confronted with the inescapable consequences of this "cant," and we will 
continue to face them in peacetime. Not parliament alone but the whole 
governmental system will have to pay for it. 



5. Parliamentary Professionalism and the Vested Interests 

The decisive question about the future of Germany's political order 
must be: How can parliament be made fit to govern? Every other way 
of putting the question is simply wrong, and everything else is secondary. 

It must be clearly understood that parliamentary reform depends 
not merely on these seemingly trivial yet practically important extensions 



Hi ] Parliamentary Inquiry f? Recruitment of Leaders j 427 

of parliamentary jurisdiction and on the removal of the mechanical 
obstacle presented by Article 9, as well as on certain significant changes 
in the procedures and the present conventions of the Reichstag; it de- 
pends above all on the development of a suitable corps of professional 
parliamentarians. 

The professional parliamentary deputy is a man for whom the Reichs- 
tag mandate is not a part-time job but his major vocation; for this reason 
he needs an efficient office with the requisite personnel and access to 
information. We may love or hate this figure — he is technically in- 
dispensable, and therefore we have him already. However, even the 
most influential pros are [in Germany] a rather subaltern species, operat- 
ing behind the scenes, because of the subordinate position of parliament 
and the limited career opportunities. The professional politician may 
live merely from politics and its hustle and busde, or he may live for 
politics. Only in the latter case can he become a politician of great 
calibre. Of course, he will succeed the more easily, the more he is finan- 
cially independent and hence available — not an entrepreneur but a 
rentier. Among those dependent upon a job only the lawyers can easily 
take leave and are suited to be professional politicians. An exclusive 
dominance of lawyers would certainly be undesirable, hut it is a foolish 
tendency of our literati to denigrate the uses of legal training for political 
leadership. In an age ruled by jurists the great lawyer is the only 'orwi- 
who, in contrast to the legally trained civil servant, has been taught to 
fight for, and effectively represent, a given cause; we would wish that 
the public pronouncements of our government showed more of the 
lawyers skill in the best sense of the word. However, only if parliament 
can offer opportunities for political leadership" will any kind of inde- 
pendent person, not just gifted and capable lawyers, want to live for 
politics. Otherwise, only salaried party functionaries and representatives 
of interest groups will want to do so. 

The resentment of the typical party functionary against genuine'' 
political leaders strongly affects the attitude of some parties toward the 
introduction of parliamentary government and hence the recruitment of 
leaders in parliament. This tendency is, of course, very compatible with 
the like-minded interests of the civil service, for the professional deputy 
is a thorn in the side of the administrative chiefs, if only as an in- 
convenient supervisor and pretender to some share in the exercise of 
power. This is certainly aggravated when he emerges as a possible 
competitor for the top positions in government (a threat not posed by the 
representatives of special interests). In this manner we can also explain 
the bureaucracy's struggle to preserve parliament's ignorance, sine* only 
skilled professional parliamentarians who have passed through the school 



I 4 2 8 PARLIAMENT AHU GOVER^'Haftf* IN GERMANY [ Aff. 11 

of intensive committee work can produce frt«i their midst responsible ] 
leaders, *ather than mere demagogues and dilettantes. Parliament must 
be completely reorganized in order to produce such leaders and to guaran- 
tee their effectiveness; in their own way, the British parliament and its 
parries have long been successful in this regard. It is true that the 
British conventions cannot simply be taken over, but die basic structure 
can very well be adapted. We are not concerned here with the details 
of the changes required in the Reichstag procedures and conventions; 
they will become apparent as soon as the parties are forced to pursue 
responsible politics- However, we should turn to one more serious im* 
pediment to parliamentary government which is rooted in the German 
party system, a difficulty which has been discussed often, but usually in 
a distorted fashion. 

There is no doubt' that parliamentary government functions most 
smoothly in a two-party system such as existed in England until a short 
while ago (even though its disruption had been apparent for some time). 
However, such a system is not indispensable, and in all countries, in- 
cluding England, pressures for the formation of party coalitions are 
building up. More important is another difficulty: Parliamentary govern- 
ment is feasible only when the largest parties axe in principle willing 
to take over the responsibilities of government. 'In Germany this was by 
no means the case. The biggest party, Social Democracy, was unwilling 
to enter any coalition under any conditions, since it believed in certain 
evolutionary theories and stuck to pseudo-revolutionary conventions in- 
herited from the period of the anti-socialist legislation [1878-90]; — for 
example, it refused to send members to ceremonial functions at Court; 
Even when it could have taken over the government in one of the 
smaller principalities by virtue of a temporary majority, it refused to do ' 
so. However, much more important than those theoretically inspired 
anxieties has been the real worry that it would be repudiated by its own 
class-conscious members if it joined a government inevitably limited by 
the conditions of a society and economy that would remain capitalist for 
the foreseeable future. This situation motivated the leaders to keep the 
pspy for decades in a kind of political ghetto, in order to avoid any 
kind of contaminating contact with the workings of a bourgeois state. 
Despite appearances, they do this even now. Syndicalism — the unpoliti- 
cal and anti-political heroic ethos of brotherhood — is on the increase, and 
the leaders fear a rupture of class solidarity which would later damage 
labor's effectiveness in its economic struggles. Moreover, the leaders 
cannot rest assured that the bureaucracy's traditional attitudes will not 
come to the fore again after the war. Our future will depend to a large 
extent on the party's stand in the years ahead: whether its will to gain 



m ] Parliamentary Inquiry & Recruitment of Leaders 1429 

governments! power will prevail or whether the unpolitical ethos of 
proletarian brotherhood and syndicalism, which surely will proliferate 
after the war, will gain the upper hand. 

For somewhat different reasons, the second largest German party, 
the [Catholic] Center, has up to now been skeptical 1 of parliamentarism. 
AtJBrtain elective affinity between its own "authoritarian mentality and 
the ~Obri$uit$$taat has worked in favor of the bureaucracy's interests. 
But another factor is more relevant. Since the Cepter party is a natural 
minority party, it is afraid that under a parliamentary regime it will also 
be a parliamentary minority and that its power position and ability to 
represent its present clientele would be endangered. Its power rests 
primarily on extra-parliamentary means: the clergy's control over the 
political attitudes of the believers. Within the Reichstag the system of 
negative politics provided the party with an opportunity to serve the ma- 
terial interests of its members. After the party had accomplished at 
least those clerical objectives that can be permanently maintained in 
Germany, it changed from an ideological party more and more into a 
vehicle of patronage for Catholic candidates for office and other Catholic 
interests which have felt themselves discriminated against ever since 
the era of the Kulturkamfj [1871-80's]— whether this feeling is still 
justified is irrelevant here. Today its power rests largely on this function. 
Its control over the balance of power in the parliaments enabled the 
party to promote the private interests of its proteges, The bureaucracy 
could acquiesce and still save its face, because - this patronage was 
"unofficial." However, the vested interests in the party are not only con- 
cerned lest pailiamentarization and democratization diminish their oppor- 
tunities in periods in which the Center would be part of the minority, 
they also fear something else. Under the present system the Center 
has been able to avoid that responsibility which would nave fallen upon 
it if its le*der had sat in the government, and this responsibility would 
not always have been convenient. Even if today the Center party com- 
mands a number of political talents, among the officials promoted by 
it are such incompetent ones as no responsible governing party would 
be likely to appoint. Such men can advance only if their sponsors cannot 
be held responsible for them. If the party were part of the government, 
it would have to recruit more capable candidates. 

Unofficial patronage, then, is the worst form of parliamentary pa- 
tronagr —one that favors mediocrity, since nobody can be held responsible. 
It is a consequence of our rule by conservative civil servants, a rule whose 
perpetuation rests on this system of handouts (Xfinkgeldenystem). 
It is no wonder that the Conservative party and the big business wing 
of the National Liberal party feel quite comfortable under these condi- 



I 4 3 CJ PARLIAMENT AND GOVERNMENT IN GERMANY [ Ajpf. U 

tions. For, after ali, patronage under this system is not in the hands of 
> politicians and parties, which might be held responsible by the public, but 
works through private channels ranging from the very important frater- 
nity connections to the cruder or finer forms of capitalist "recommenda- 
tions." Big business, which the foolish ignorance of our ideologists 
suspects of being allied with horrid parliamentarism, knows full well why 
it supports as one man the retention of an unsupervised bureaucracy. 

This is the state of affairs which is heatedly and bitterly defended 
with literary slogans about the "corrupt" and "un-German" character of 
open party patronage. In truth, it is not the "German spirit," but power- 
ful material interests in benefices, joined to the capitalist exploitations of 
"connections," which are pitted against handing patronage over to parlia- 
ment There can be no doubt that only the presence of absolutely com- 
pelling political circumstances will change anything at all in this respect. 
Parliamentary government will not arrive on its own. Nothing is more 
certain than that the most powerful groups work against it. True enough, 
all the parties mentioned have ideologists and sober politicians in addition 
to those subaltern office-seekers and routinized parliamentarians, but 
the latter have the upper hand. If the system of petty- patronage were 
to be extended to other parties, the general trend would merely be 
reinforced. 

Lastly, the beneficiaries of the status quo, and those naive literati 
who unsuspectingly mouth their phraseology, like to point triumphantly 
to the federal character of the German constitution in order to demon- 
strate conclusively the impossibility of parliamentary government, on 
purely formal grounds. Let us first turn to the legal aspect of this prob- 
lem, within the confines of our written constitution: from this we can 
see how incredible such an assertion really is. According to Article 18 of 
the Constitution, the emperor appoints and dismisses the chancellor and 
all imperial officials on his own, without interference from the Bwtdesrat 
[the Federal Council, a representation of the governments of the in- 
dividual states]; only to him do they owe obedience, within the limits 
of the Federal laws. As long as this is the case, any constitutional objection 
on "Federal" grounds is baseless. Under the Constitution nobody can 
prevent the emperor from handing the Retck government over to the 
leader or the leaders of the parliamentary majority and from sending 
them into the Bundesrat; or from dismissing them if a clear Reicks- 
tag majority votes against them; or merely from consulting the parties 
in the formation of the government. No majority in the Bvnde&ai! 
is entided to topple the chancellor or merely to insist on his giving to' 
account of his policies, as the undisputed interpretation of Article 17, 
Paragraph 2 requires him to do before the Reichstag. Recently it has 



Hi ] Parliamentary Inquiry 6 Recruitment of Leaders i 4 3 1 

been proposed that the chancellor be made accountable not only to the" 
Reichstag but also to the Btmdesrat; this proposal deserves to be ex- 
amined for its political feasibility (and to be discussed later on), but it 
would be a constitutional innovation no less than the elimination of 
Article 9, Paragraph 2, which we have proposed above. We must deal 
later with the fact that the real problems of parliamentary government, 
and of the Empire's constitution in general, are rooted not so much in 
the constitutional rights of the other members of the federation as in 
the relationship of those states to the hegemonial Prussian state. How- 
ever, before we do this, we should examine the manner in which the 
present system has functioned in the field of foreign policy. It is here 
that government by bureaucrats reveals the inherent limits of its effec- 
tiveness as well as the terrible price we had to pay for tolerating it. 



IV 

Bureaucracy and Foreign Policy 



1 . The Governments Failure to Curb Harmful 
Monarchic Pronouncements 

In Germany the interior administration is dominated by a specifi- 
cally bureaucratic concept of administrative secrecy, the "service secret" 
(Dienstgeheimnis'). It is astonishing to note the difference in the realm 
of foreign policy: there some of the most diverse steps were taken with 
dramatic publicity — and a publicity, at that, of a very peculiar sort. 

For more than a decade, from the Kriiger telegram to the Morocco 
crisis,* 1 we had to live with the fact that purely private statements by 
the monarch on foreign policy matters were made public by sedulous 
court officials or news services, either with the toleration or even with 
the participation of the government. We are dealing here with events 
which have been of the utmost importance in shaping our global policies, 
and especially in consolidating the global coalition against us. Let us 
be clear that we are concerned here not with the question of whether 
the monarch's statements were correct and justified, but solely with the 
behavior of the officials. This writer, who certainly is convinced of the 
utility of monarchic institutions in large states, would refrain from any 
underhanded polemics against the monarch as much as from the pseudo- 



I 4 3 2 PARLIAMENT AND GOVERNMENT IN GBRMANY [ Aff. 11 

monarchic adulation or the sentimental subaltern phraseology of the 
vested interests and the philistines. However, a monarch who makes 
personal hut public statements of a sometimes extremely aggressive 
nature must be prepared to put up with an equally aggressive public 
critique. For we must face the fact that this method of conducting our 
policies through the publication of monarchic pronouncements was 
tolerated tune and again. If this method was a grave political error (as 
we believe it was), then the toleration of the several repetitions of this 
procedure proves, insofar as the monarch was personally responsible for 
it, the necessity of his being forced to accept advice only from the politi- 
cal leadership, and of excluding all other groups — courtiers, military or 
whatever — from meddling in politically important matters. However, if 
concrete guarantees for such a procedure are not forthcoming, an utterly 
frank critique of the monarch himself would become a political duty. 
Certainly, such a public critique of the monarch would be politically 
undesirable. It is age-old political wisdom, not an old-fashioned outlook, 
which seeks to protect the monarch from being dragged demagogically 
before the public, as has happened repeatedly in Germany, by provid- 
ing ritual formalities and conditions for his public appearances and thus 
making it possible to keep him personally out of the public disputes of 
party politics. Precisely because of this he can intervene much more ef- 
fectively in times of national crisis. It should be clear, then, that we 
do not discuss here possible blunders on the part of the monarch, but 
rather the very different fact that die government used his public ap- 
pearances or the publication of his views as a diplomatic means— at 
least in one case despite his personal doubts,* 4 and that the gowenunent 
leaders suffered the publication of the monarch's views by non-responsi- 
ble agencies, over their heads, without resigning immediately. Of course^ 
the monarch is free to take any political position that he caret to take. 
But it must be up to the politically responsible leaders to decide whether, 
or in what substantive or formal manner, his views should be maeU 
public, and to assess their presumable impact. Hence, the chancellor 
must be asked for his advice before any major political utterance by the 
monarch can reach the, public, and his advice must be accepted as long 
as he is in office. He and his colleagues default on their duties if they 
remain in office after this rule has been breached even once. Behind iD 
the talk that "the nation does not want a shadow king," and similar 
phrases, these men hide nothing but their desire to hang m to their 
offices, if they fail to resign. This has nothing to do directly with the 
issue of patbamentary government; it is simply a question of political in- 
tegrity. On this score our government has failed time and again in the 
most miserable manner. These failings are due to "our faulty poihxml 



tr ] Bureaucracy and Foreign Policy i 4 3 3 

structure, which puts men with a bureaucratic mentality into positions 
of political leadership. The issue of parliamentary government becomes 
highly significant only because under the given conditions there is no 
other instrumentality for effecting and guaranteeing the necessary 
changes. In order to avoid any misconstruction of our position, we should 
add that in almost all cases the monarch's statements were not only 
subjectively understandable, but sometimes also politically warranted — 
insofar as one could judge matters at the time. Moreover, in some cases 
it would probably have been helpful to convey his strong personal re- 
actions through diplomatic channels to the governments concerned. But 
what was politically irresponsible was the publication of such state- 
ments, and here responsibility fell upon the political leadership for 
tolerating or instigating it. In Germany it seems to have been forgotten 
that it makes a tremendous difference whether a politician (the prime 
minister or even the president of a republic) issues a statement, no 
matter how harsh it may be, or whether he makes public a personal 
. statement by the monarch and then "assumes responsibility" for it by 
a dramatic but cheap gesture. A public utterance of the monarch cannot, 
in effect, be criticized freely in the country; hence, it actually covers 
the statesman who misuses it for this purpose against a straightforward 
critique of his own actions. Abroad, however, there are no such restraints, 
and critique centers on the monarch. A politician can and should resign if 
conditions change and new policies become necessary against which he 
has committed himself, but the monarch is supposed to stay, and this 
implies that his words will stay with him. Once he has publicly com- 
miEted himself, he cannot take them back even if he tries to do so in a 
new situation. Passions and sentiments of honor are aroused, for now 
it is a national point of honor to support the monarch — and ignorant 
literati such as the Pan-Germans (and their publishers) do a flourishing 
business. At home and abroad, the monarch's words are taken as binding, 
and the political fronts become frozen. This has indeed been the pattern 
in all.these cases. Let us take a cool look at a few of them in order to 
see how the political mistake was made. 

First the Kriiger telegram. The indignation over the Jameson raid 
was justified and shared all over the world, even in England. It is quite 
possible that insistent diplomatic representations in London (which 
might have referred to the monarch's strong reaction) could have elicited 
formal statements by the British cabinet which it could perhaps not 
easily have disregarded afterwards. In addition, a general agreement 
about the African interests of both sides might have become more likely; 
Cecil Rhodes, for one, was quite amenable to it, ss and it wte necessary 
if we wanted to have a free hand in tie Orient and keep Italy in the 



14 3 4 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

alliance. But the publication of the telegram had, of course, the effect of 
a slap in the face, which precluded any reasoned talks.*" Now the issue 
became a matter of national honor, and rational political interests were 
pushed aside. Hence, when later — before, during and after the Boer 
War — attempts were made to come to an understanding about Africa or 
the overall relations between England and Germany, the public in both 
countries, whose sentiments of national honor had now been aroused, 
did not really welcome these attempts even though both sides could 
have achieved their material goals through diplomatic understandings. 
The result of these approaches was to make Germany appear as the dupe 
after the Boer War. After all, in 1895 we simply did not have sufficient " 
military resources to back any protest effectively. Let us silendy pass 
over the shameful end, the refusal to receive the exiled president: for 
the main point was that the Boers could not be helped in spite of the 
monarch's words. Hence General Botha could declare in the South 
African parliament in 1914 that it had been Germany's behavior which 
has led to the loss of the Boers' independence, 

There was much astonishment in Germany when Japan declared 
war on her in August 1914 and China followed suit in August 1917. 
The former step is always explained with the well-known 1895 inter- 
vention in connection with Port Arthur, 37 the latter with American 
pressures, and in both cases opportunism is also charged. No matter how 
true this is, another important factor must be added. It was, after all, 
tV German monarch who, in word and picture, had publicly warned 
ty the "Yellow Peril" and had called for the "preservation of the most 
sacred goods'* [of the European nations]: Does anyone among us really 
believe that educated Chinese and Japanese have forgotten that? 38 In 
international politics racial problems belong to the most difficult ones 
since they iirc complicated by the interest clashes between the white 
nations. One can only approve of the monarch's endeavor to form an 
opinion on this score. But what German interest could possibly be served 
by makr-fj his views public in the way it was done? Was this reconcilable 
with anv German interest in the Far East? What power resources stood 
behind such pronouncements? Whose interests were they bound to serve 
in the end? Moreover, which political aims were served by publishing 
the Emperor's speeches at the time of Count Waldersee's mission, or his 
naval addresses, which perhaps might have been quite fitting in a circle 
of officers? 36 The result of the German China policies contrasted em- 
barrassingly and, we must add, by no means accidentally with such 
rhetoric, and this proved highly damaging to our prestige. Again, we 
shall leave out a sh; meful episode, the treatment of the "expiatory 
mission" fof Prince Chun in 1901, to apologize for the assassination of 



w ] Bureaucracy and foreign Policy i 4 3 5 

minister von Ketteler during the Boxer Rebellion] and the discussions, 
again in public, which surrounded it. It is simply impossible to imagine 
the concrete political ends that Chancellor Biilow might have wanted to 
further when he tolerated such political Romanticism, which needlessly 
offended the Chinese sense of honor. If he was clear-headed enough to 
perceive the political uselessness and harm of all these events and yet 
felt that He had to consider conditions requiring their toleration, he 
should have resigned in the monarch's interest no less than that of the 
nation. 

Grave doubts have been expressed whether the publication of the 
Emperor's speech in Damascus [before Saladin's grave, on November 8, 
1-898] was helpful in our relations with Russia. Our sympathies for 
Mamie culture and our political interests in the territorial integrity of 
Turkey were well-known abroad and not in need of such noisy ostenta- 
tion. However, quite apart from the political constellation prevailing at 
the time, it would have been better to avoid the impressions created by 
this public move. Here, too, it is easy to see whose designs were bound 
to benefit from it. 

If in this instance positive doubts are still possible, matters are per- 
fectly clear with regard to the public address which the Emperor made 
in Tangier at the beginning of the Morocco crisis. Even neutral parties 
approved of Germany's stand, but it was again a serious mistake to use 
the monarch for a public move. We do not yet know what offers 
France made after [her foreign minister] Delcass^ fell, but so much was 
clear then: Either Germany would have to be serious about going to war 
for the sake of Moroccan independence or the affair would have to be 
settled promptly in a manner that took account of each side's interests 
and sense of honor, with France offering some compensations. This 
might have had far-reaching ' consequences for our relationship with 
France. Why was it not done 1 ? The monarch's word, it was said, had 
engaged the nation's honor in favour of the Sultan of Morocco, and 
therefore we could not now leave him "in the lurch." However, the 
government did not really intend to go to war. The upshot of it all was 
the debacle of Algeciras, followed by the "Panther" episode and finally 
the abandonment of Morocco; at the same time, the endless tension 
kindled eagerness for war in France and thus facilitated the English 
policy of encirclement. This development was paralleled by the im- 
pression that Germany would always yield in spite of the Emperor's 
words. All of this happened without providing any political compensa- 
tions for Germany. 

The aims of German foreign policy, especially overseas, were ex- 
ceedingly limited if compared to those of other nations, and its results 



I 4 3 ^ PARLIAMENT AND GOVERNMENT IN GERMANY [ App. 11 

were outright meager. However, it produced tensions and sheer noise 
like that of no other country, and time and again these wholly useless 
and damaging sensations were created by publishing statements of the 
Emperor. This method proved detrimental to us not only in hostile or 
neutral countries. After the Algebras conference the Emperor felt the 
need to express his thanks to Count Goluchowski, and instead of using 
regular channels the well-known telegram was published. The ad- 
dressee's downfall was prompt and embarrassing for us: It demonstrated 
too late that no government will permit its leading statesmen to be pub- 
licly given a "good grade" by another government — not even by that of a 
close ally.* 

On the domestic scene, the same mistakes were made. Did the so- 
called "Penitentiary Speech," which William made in a moment of 
anger [in 1898], really belong before the public, where it appeared as a 
political program? What is one to think of the fact that the bureaucracy 
felt now obliged to dream up a corresponding paragraph for inclusion 
in the proposed anti-strike bill, merely because William had spoken of 
stiff prison sentences for strikers? Only the portentous events of 1914 
and the present [Easter 1917] promise of equal suffrage [in Prussia] 
have been able to counteract the impact of this pointless publication 
upon self-respecting workers. Was it in the dynastic interest? Or what 
other politically acceptable aims could the publication have had? 

However, we want to limit ourselves here to the realm of foreign 
policy and hence would like to ask the pertinent question: At all these 
occasions, where were those Reichstag parties which could have made 
the decisive difference for the government's policy, but which later 
preferred to reproach Chancellor von Bethmann Hollweg for the failures 
of a policy that turned "the whole world into our enemies," or which 
accused him of hiding behind the monarch? What did they do in all 
those cases? They took advantage of the attacks by the extreme left in 
order to denouwe its "anti-monarchic" attitude 1 . We must state em- 
phatically that they raised public objections only when it was too late. 
Even then they did this only to the extent that their vested interests 
were not involved. We shall not go into any details about the highly 
publicized events of 1908 [the "Daily. Telegraph" Affair]; however, we 
should remind ourselves that the Conservative party, in contrast to the 
indubitably impressive remonstrance of its leaders before the monarch, 
later openly abandoned Prince Billow and, as usual, remembered its 
pseudo-monarchism when its own material interests were affected. By the 
way, the monarch himself may have been quite astonished to find this 
chancellor, who at least once advised him on a spectacular personal inter- 
vention against his own objections,* 1 suddenly turn against him under 



«v ] Bureaucracy and Foreign Policy 1437 

the pressure of an excited public opinion. And what, finally, did our 
literati do in all these incidents? Publicly they applauded or kept on 
jabbering about how Germans do not happen to like a monarchy of the 
English type — just as the right-wing press is still doing. Flattering the 
most dreary philistine instincts, they attributed the failures to the 
diplomats and did not bother to ask once how these could work under 
such conditions. We could also speak of their private talk — but that 
would be a long story, and one not very honorable for those agitators 
who inveigh so bravely against the majority for demanding a "starva- 
tion peace."** 

In all these cases, the behavior of our government was irresponsible; 
it has no parallels in any other large state. A public confrontation was 
permissible only if the government had been willing to go all the way, 
and without delay. But we did not really intend to take up arms for 
the Boeis or against the "Mongols" or for the Sultan of Morocco; more- 
over, in the two former cases we had no business, and not enough power, 
to think of armed intervention. Yet the leaders of the government per- 
mitted a situation to arise in which the monarch was made to engage 
himself publicly, and this vitiated any rational agreement with England 
about out South African interests, and with France about the North 
African interests. Our position appeared first to be a matter of honor, 
and then was abandoned nevertheless. The inescapable result was a 
series of diplomatic defeats that were acutely embarrassing to every 
German and brought lasting detriment to our interests. Here was the 
root of the very dangerous impression that Germany would always re- 
treat after much blustering, and it appears that this belief was one of 
the factors determining English policy in late July 1914. The unnatural 
world coalition against us has been largely due to these incredible 
blunders, which still affect us. The present humbug abroad about 
German "autocracy" is just that: swindle — but it is by no means po- 
litically irrelevant that it can occur. Who enabled our enemies, who 
themselves believe in it as little as in other fairy tales about Germany, to 
promote this swindle successfully? Who brought the tremendous and 
politically so effective hatred of the whole world upon the head of 
exacdy this monarch, whose attitude was several times notoriously de- 
cisive in preserving the peace even at moments when war might have 
been more opportune for us from the viewpoint of Ftealpolitik? Who 
has made it possible for' the masses abroad to believe seriously that Ger- 
many desires to be 'liberated" and that this suppressed yearning will 
eventually find an oudet if only the war can be sufficiendy prolonged? 
Who made possible the unheard-of absurdity of the present situation? 
As long as repetition is possible, the nation must not forget that it was 



1438 PARLIAMENT AND GOVERNMENT IN GERMANY [ Afp. 11 

the conservative bureaucracy which was responsible for this state of 
affairs: in decisive moments it put bureaucrats into the top positions of 
government which instead should have been manned by politicians — 
men experienced in weighing the effects of public statements, men with 
the politician's sense of responsibility, not the bureaucrat's sense of duty 
and subordination that is proper in its place bitt pernicious in political 
respects. 

Here the abyss that separates the two can be seen most clearly. The 
civil servant must sacrifice his convictions to the demands of obedience; 
the politician must publicly reject the responsibility for political actions 
that run counter to his convictions and must sacrifice his office to them. 
But in Germany this has never happened. The worst aspect of the 
matter has not yet been discussed: It is reliably known that almost all 
of the men who were in charge of our policies in that disastrous decade 
have time and again privately repudiated grave declarations for which 
they accepted formal responsibility. If one asked with amazement why 
a statesman remained in office if he was powerless to prevent the publica- 
tion of a questionable statement, the usual answer was that "somebody 
else would have been found" o authorize it. This may very well be 
true, but then it also indicates he decisive fault of the system. Would 
somebody else have also been i mnd if the head of government would 
have had to take the responsibility as the trustee of a powerful parlia- 
ment? 



2. Parliamentary and Legal Safeguards 

At this decisive point we can see the importance of a parliament to 
which the bureaucracy is truly answerable. There is simply no substitute 
for it, Or is there? This question must be answered by all who are 
still -:onvinced that they have a right to -rail against parliamentarism. 
At the very same point it becomes perfectly obvious that the civil 
servant's sense of responsibility and that of the politician are appropriate 
each in its sphere — and nowhere else. For we deal here not with in- 
competent and inexperienced civil servants and diplomats but in part 
with outstanding ones, yet they did not have political "guts," something 
that is quite different from private integrity. However, they did not lack 
it accidentally, but rather because the political structure of the state had 
no use for it. What is one to say about a state of affairs — unknown to any 
other major power — in which the monarch's personal cabinet, courtiers 
or news agencies publicize events that are of utmost importance for in- 
ternational politics, with the result of getting our foreign policy bogged 
down and messed up for decades; a state of affairs, moreover, in which 



iv ] _ Bureaucracy and Foreign Policy i 4 3 9 

tpe head of government shrugs his shoulders about these incidents 
and tolerates them after making some spuriously noble gestures. All 
that in a state, for whose domestic administration the "service secret" 
is (in the power interests of the agency chiefs) the crown jewel of 
civil service duty! It is obvious that this apparent contradiction can be 
explained solely by the bureaucrats' interest in unsupervised office- 
holding. What is one to say of a system which leaves politicians in 
office who condone major mistakes against their better convictions? 
And finally, how is one to take the fact that, in spite of the obviousness 
of it all, there are still literati who do not hesitate to claim that a state 
which functions thus in the most important political respects has 
"brilliandy proven" itself? True enough, the performance of the officials 
and civil servants was brilliant in their own sphere. However, in the 
politician's realm die bureaucracy has not only failed for decades, but has 
also shifted onto the monarch the odium of its own 'politically disoriented 
behavior in order to hide behind him. In this manner it helped bring 
about a world-wide constellation against us, in the wake of which the 
monarch could have lost his crown and Germany her whole political 
future if it had not been for the magnificent performance of our army. In 
the interest of the nation and of the monarchy, every constitutional alter- 
native that prevents such occurrences is better than this state of affairs. 
Hence, the current state must come to an end whatever the cost may he. 
It is beyond doubt (and can easily be proven) that there are no partisan 
differences of opinion about these gravely detrimental developments. 
However, the right-wing politicians eithei did not have enough political 
character or had too many personal interests to voice opinions -publicly 
which they stated vrivately with extreme blumness. Tor the same reasons, 
they were unwilling to drav.' any concrete conclusions. But without sub- 
stantive guarantees no decisive change can occur. This has been demon- 
strated by the fact that the court circles responsible for these publications 
proved aBsolutely incorrigible. The introduction of such safeguards is 
politically much more important than all other political issues, including 
those of parliamentary and suffrage reicnn. For us, parliamentarization is 
primarily the indispensable means for establishing such concrete safe- 
guards. For it cannot be doubted that only a strong parliament and the 
actual parliamentary accountability of the government can provide a 
guarantee against the recurrence of such events. 

However, after letting things run their course for decades, it will 
take years before a really effective parliamentary leadership can be 
created. What can be done in the meantime, as long as this reform has 
not been carried through or come to fruition? 

One thing stands to reason: Everywhere, and particularly in a 
democracy, the big decisions in foreign policy are made by a small 



14 4° PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

number of persons. At present, the United States and Russia are the 
best examples, and no literary phraseology can change the facts. Every 
attempt at doing so would weaken the burden of responsibility, while 
the point is precisely to increase it. Hence the imperial prerogatives of 
Article 1 1 of the constitution, which in actuality are exercisable under 
the chancellor's responsibility, will remain unchanged. However, legal 
blocks must immediately be erected against the dangerous mischief which 
unaccountable and unknown courtiers or journalists have been able to 
perpetrate by publishing personal statements of the monarch on foreign 
policy. A special law must threaten with severe penalties, including 
criminal ones in case of deliberate abuse, anyone who wiH bring mo- 
narchic opinions before the domestic or foreign public without clearing 
them in advance with the proper authorities. In line with his constitu- 
tional obligations, the chancellor must take prior responsibility for their 
publication. This is what matters. It is empty rhetoric when the chan- 
cellor later reacts to protests in parliament with the assurance that he 
was taking responsibility for the publication. Even if this is done, an 
utterance by the monarch cannot be frankly criticized without endanger- 
ing his political prestige. Most of all, however, such an excuse is not 
only pointless but politically a lie if the chancellor was not consulted in 
advance and merely went along. If he was indeed not asked beforehand, 
his statement merely indicates that, in spite of this publication, he does 
not feel like being pensioned off and prefers instead to hang on to his 
office. In addition to punishing those guilty of leaking the monarch's 
utterances, it must be constitutionally possible to "indict" the chancellor 
for approving or tolerating such leaks; such an "indictment," which 
should preferably occur before a parliamentary comnitfee, would have 
the purpose of dismissing him or of declaring bim permanendy unfit 
for political office. Such a legal provision will exert the necessary pres- 
sure on the chancellor to proceed with the greatest caution. 

Every monarchic pronouncement should be approved by the chan- 
cellor only after extensive deliberation with experienced men. There- 
fore, it would be desirable if an advisory body could comment about the 
suitability of publication (for this is the only issue). If a parliamentary 
committee is not desired, another body might serve the same purpose. 

Up to now the Committee for Foreign Affairs of the BuncUsrat, 
which is composed of representatives from the non-Prussian kingdoms 
[Saxony, Wiirttemberg and Bavaria], was a kind of bad constitutional 
joke, merely decorative, without formal powers and real influence. For 
the chancellor is not required to present to it an account of his policies; 
in fact, he is explicidy exempted from this duty by Article 1 1 . He need 
not go beyond passively accepting an expression of opinion. He is being 
polite if he presents [to this body] a formal expose, such'as is custom- 



iv ] Bureaucracy and Foreign Policy i 4 4 1 

arily submitted in parliament for the instruction of the public. This at 
least seems to have been the actual practice, even though in this more 
intimate circle policies could very well have been discussed on their 
merits. During the war the Committee seems to have slightly increased 
its importance, and this too would not be accidental. It could very well 
be assigned such an advisory function before the publication of a 
monarchic statement with important foreign policy implications. It 
would be even better if the Committee could be transformed into an 
Imperial Crown Council which, together with the responsible depart- 
ment chiefs and some elder statesmen, could discuss important foreign 
policy alternatives prior to the decision and, if possible, in the monarch's 
presence. In the absence of a collegiate body of this kind on the Reich 
level, the Prussian Crown Council now frequendy exercises this func- 
tion not only in Prussian matters, but also in politically important mat- 
ters concerning the Reich as a whole (and hence also the non-Prussian 
member states). Formally this activity can be only advisory, since the 
constitutional responsibility of the chancellor can be abridged as little as 
the constitutional role of the emperor in representing the Retch to the 
outside. Of course, any such proposal is discredited from the beginning 
if — as the bureaucracy is unfortunately prone to do — attempts are made 
to use it for the exclusion or weakening of the influence of parliament. 
However, it might be useful to impose by statute an explicit duty on 
the chancellor's part to give a full explanation of his policies before the 
Bundesrat, A problem might be posed by the relationship between this 
advisory body and the special parliamentary committees, especially if 
deputies would also sit in the Committee. More on that later. 

Irrespective of whether this proposal will be realized, never again 
must such situations as those described earlier be tolerated. Therefore 
we must state unambiguously that the highly insincere pseudo- 
monarchic legend with which these events were defended was a 
■fabrication of the Conservative party on the basis of Bismarck's dema- 
gogy. Purely domestic party interests hid behind this legend, just as they 
do now behind the war-time Fronde. This interest-ridden legend served 
many purposes: to preserve official positions — from the Landrat to the 
minister — as Conservative benefices, to use the state bureaucracy as the 
electoral machine of the Conservative party, therefore to perpetuate the 
Prussian suffrage privileges [Le., the three-class suffrage] and to dis- 
credit and weaken the Reichstag, which in spite of all is still the best 
of the German parliaments. When ' today, after the political conse- 
quences have become .clear, demands are raised for strengthening 
parliament as an organ of administrative supervision and of recruiting 
capable leaders, we know in advance the slogan which the beneficiaries 
of uncontrolled bureaucracy hold ready: "The monarchy is in danger." 



I 4 4 2 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. 11 

But the future of the monarchy will be in doubt if these self-interested 
sycophants continue to have the monarch's ear. It must be the dynasties' 
own affair to cope with the fright caused by the spectre of democracy 
— not ours. 



V 

Parliamentary Government 
and Democratization 



i . Equal Suffrage and Parliamentarism 

We are concerned here not with the issue of democratization in the 
social sphere, but only with that of democratic — that is, equal — suffrage 
in its relation to parliamentarism. We also will not discuss whether at 
the time [1871] it had been constitutionally advisable for the German 
Reich, to introduce equal suffrage under Bismarck's heavy pressure. 
Rather, we take equal suffrage for granted, as a fact that cannot be 
undone without grave repercussions. We merely want to inquire into 
the relationship between parliamentarization and democratic suffrage. 

Parliamentari2ation and democratization are not necessarily inter- 
dependent, but often opposed to one another. Recently the belief has 
often been encountered that they are even necessarily opposed. Genuine 
parliamentarism, it is argued, is possible only in a two-party system, and 
then only if the parties are dominated by aristocratic notables. In 
England the old parliamentarism was indeed, as befits its feudal origin, 
not really "democratic" in the Continental sense, even after the Reform 
Bill and up until the [present] war. A look at the suffrage system alone 
will make this clear. The property and income requirements and the 
effective rights of plural voting had, after all, such an extent that, if 
they were transposed to Germany, they would probably admit only half 
of the present Social Democrats and also considerably fewer deputies 
of the Center party into the Reichstag. (However, in Germany there is 
no equivalent to the role of the Irish in the English parliament.) Until 
Chamberlain's caucus system, the two parties were clearly dominated 
by clubs of honoratiores. If the demand "One man, one vote,'' which 
was first raised by the Levellers in Cromwell's army, were now really to 
be satisfied, together with the demand for the (initially limited) women 



v ] Parliamentary Government and Democratization 1 4 a 3 

suffragefthe character of the English parliament will certainly change 
significant!". The two-party system, already weakened by the Irish, v.ill 
disintegrate further with the advance of the Socialists, and the bureau- 
cratization of the parties will continue. — The well-known Spanish two- 
party system, based on the party notables' tacit agreement to use the 
vote for a periodic alternation in the tenure of the office aspirants, ap- 
pears at the moment to be succumbing to the first attempt at serious 
elections. — But will such changes eliminate parliamentarism? The 
existence and formal power position of the parliaments are not threat- 
ened by democratic suffrage. This is demonstrated by France and other 
countries with equal suffrage, where the governments are ordinarily re- 
cruited from parliament and rely on parliamentary majorities. Of course, 
the spirit of the French parliament is very different from the English 
one. However, France is not a country suitable for a study of the 
typical consequences of democracy for parliamentarism. The strongly 
petty-bourgeois, and especially small 'rentier, character of its stable 
population creates conditions for a particular mode of rule by party 
notables and for a peculiar influence of haute finance, such as do not 
exist in predominantly industrial states. The French party structure is 
inconceivable in such states, but so is the historical two-party system of 
England. 

Two-party systems are impossible in industrialized states, if only 
because of the split of the modern economic strata into bourgeoisie and 
proletariat and because of the meaning of socialism as a mass gospel. 
This creates, as it were, a "denominational" barrier, especially in Ger- 
many. Furthermore, the organization of German Catholicism as a party 
for the protection of a minority, a result of the denominational distribu- 
tion, will hardly be eliminated, even though the Center party owes its 
present number of deputies merely to the given arrangement of electoral 
districts. At least four, and probably five, large parties will therefore 
permanendy coexist in Germany; coalition governments will continue 
to be necessary and the power of a prudently operating monarchy will 
remain significant. 



2. The Impact of Democratization on Party 
Organization and Leadership 

However, the rule of notables within the parties is untenable every- 
where outside of isolated agrarian areas with patriarchal landed estates 
because modern mass propaganda makes electoral success dependent 
upon the rationalization of the party enterprise: the party bureaucrat, 



14 4 4 ' PARLIAMENT -*J*D GOVERNMENT IN GERMANY [ Aff. II 

party discipline, party funds, the party press and party advertising. Hie 
parties are more and more tighdy organized. They endeavor to commit 
even adolescents as a following. The clerical apparatus does this auto- 
matically for the Center party, the socid environment for the Conserva- 
tives. Other parties have their own youth organizations, such as the 
"National-Liberal Youth" and the youth groups of the Social Democrats. 
Likewise the parties make use of all economic interests. They organize 
producers' and consumers' cooperatives and trade unions, and put trusted 
members as officials into the piity positions thus created- They establish 
schools, sometimes backed by vefy subshuitial funds, for public speaking 
and for the training of agitators, editors and administrative employees. 
A voluminous patty literature comes into being; it is financed by the 
same funds, contributed by interest groups, and used for the purchase of 
newspapers, the establishment of advertisirj utrices and similar enter- 
prises. The party budgets increase rapidly, for the election costs and the 
number of the necessary paid agitators rise. It is no longer possible to 
conquer a body contested larger district without spending at least 20,000 
Marks. (At the present time politically interested businessmen invest their 
war profits on a vast scale in so-called patriotic newspapers of all kinds, 
in preparation for the first postwar elections.) The party apparatus in- 
creases in importance, and correspondingly the weight of the honorati- 
ores declines. 

Matters are still in flux. The organization of the bourgeois parties, 
which differs gready in the degree of internal coordination, as has been 
noted before, presents roughly the following picture: The local activities 
are usually conducted "extra-occupationally" by honoratiores, and only 
in the big cities by officials. Newspaper editors or lawyers head the bu- 
reaus in medium-sized communities. Only larger districts have salaried 
secretaries who travel about. Local and regional associations cooperate in 
very different degrees in the selection of candidates and tke choice of 
electoral slogans. The participation of the regional associations is deter- 
mined particularly by the need for electoral coalitions and for run-off 
agreements. The leaders of the local organizations recruit the permanent 
members through efforts of gready varying degrees, among which public 
meetings play a major role. The members' activities are very limited; 
often they do no more than pay their dues, subscribe to the party paper, 
attend more or lessv regularly the meeting* at which party speakers 
appear, and volunteer a moderate amount of work at election time. In 
return, they obtairf at least formal participation in the election of the 
local party executive and the stewards (yertrauewm&nner) and, de- 
pending upon the size of the locality, also a direct or indirect voice in 
the selection of the delegates to the party conventions. As a rule, how- 



v ] ' Parliamentary ^Government and Democratization i 4 4 5 

ever, all candidates are designated by the core of permanent leaders and 
bureaucrats; mosdy they are, also drawn from among them, supple- 
mented by a few notables who are useful arid deserving by virtue of 
their well-known name, their personal social influence or their readiness 
to make financial contributions. Thus, the participation of the rank and 
file is limited to assistance and voting during the elections, which take 
place at relatively long intervals, • and to the discussion of resolutions, ' 
the outcome of which is always largely controlled by the leaders. A com- 
plete replacement of the local leader*- and district officials is rare and 
almost always the result of an internal revolt, which most of the time in- 
volves personality issues. The common voter, who does not belong to 
any organization and is wooed by the parties, is completely inactive; the ' 
parties take notice of him mostly during the elections, otherwise only 
through propaganda directed at him. 

The organization of the Social Democratic party, which has often 
been described, is much tighter [than that of the bourgeois parties] and 
also comprises a larger percentage of ,the available voters; within demo- 
cratic forms it is strictly disciplined and centralized. The parties of the 
'Right used to be more loosely organized and relied more on local nota- 
bles, but now they are supplemented by the Farmers' League Qiiind 
der Landwirte) with its closely-knit mass organization. In the Center 
party centralism and authoritarian leadership are formally most highly 
developed; however, the clergy's power has its limits in all non- 
ecclesiastic matters, as events have proven repeatedly. 

The present stage of development has definitely done away with the 
old state of affairs, when elections used to take place on the basis of 
ideas and slogans which were formulated by ideologists and then propa- 
gated and discussed in the press and in public meetings; when candi- 
dates were proposed by ad hoc committees and, if elected, joined to- 
gether to form parties that remained flexible in their composition; 
when, finally, these parliamentary groups constituted the leadership of 
like-minded persons all over the country — above all, the leadership 
which formulated the issues for the next elections. Now, by contrast, 
the party officio? is emerging everywhere, although at a varying pace, 
as the dynamic element of party tactics. Along with him, organized 
fund raising becomes important. The perpetual financial difficulties re- 
quire regular dues, which naturally play the biggest role in class-based 
mass organizations such as the Social Democratic party; however, they 
also time and again reinvigorate the position of the party patron, which 
used to be predominant. Even in the Social Democratic party it was 
never completely absent. In the Center party a single patron, Mr. 
August Thyssen, now successfully claims a social rank at least equiva- 



I 4 4 6 PARLIAMENT AND GOVERNMENT IN GERMANY [ App. 11 

lent to that of an archbishop. Among the bourgeois parties, financial 
hackers are moderately important as revenue sources on the left, hut 
much more so on the right. In the nature of things, their role is most 
important in the middle-of-the-road parties such as the National Liberals 
and the old Free Conservatives, so that the present moderate strength 
of these bourgeois parties comes closest to being an approximate measure 
for the importance of money as such, that means, of funds provided by 
individual patrons, in elections based on equal suffrage. But even in the 
case of these parties one could not say that it is the support from finan- 
cial backers, even if it is indispensable for them, which produces the 
vote. They exist, rather, by virtue of a peculiar mixed marriage of the 
financial powers with that broad stratum of the literati, including in 
particular the academic and non-academic teachers, which is emotionally 
attached to reminiscences of the Bismarck ; era. Compared to the number 
of their votes, a disproportionately large part of the bourgeois press 
appeals to them as subscribers; in watered-down form, its line is imitated 
by the completely opportunistic advertising press, since this happens to 
he convenient to government and business circles. 

Here as everywhere bureaucratization and rational budgeting are 
concomitants .of democratization, however strongly the German parties 
differ in their internal social structure. This necessitates much more 
continuous and strenuous electioneering than was ever known to the old 
parties of honoratiores. The number of election speeches that a candidate 
must deliver today, preferably in every little hamlet of his district, is 
ever increasing, as is the number of his local visits and reports, and also 
the demand by the party press for information services and ready-made 
copy and for advertising of every kind. The same can be said about the 
severity and ruthlessncjS of the methods of political combat. This has 
often been deplored and blamed upon the parties as one of their 
peculiarities. However, not only the party organizations resort to these 
measures, but just as much the power-holding governmental apparatus. 
Bismarck's press, which was financed out of the so-called "Guelph 
Fund," topped everything else, especially since 1878, with regard to 
un scrupulousness of means and want of good tone. The attempts have 
not ceased to create a local press that would be completely dependent 
on the dominant governmental apparatus. The existence and quality of 
these combat methods thus has nothing to do with the degree of parlia- 
mentarization nor with the kind of suffrage gradation; rather, these 
methods result purely from the mass elections, irrespective of whether 
the electoral bodies are the recruiting ground for the politically re- 
sponsible leaders or whether they can only pursue negative policies of 
interest representation and petty patronage, as in Germany.** In the 



1 



v ] Parliamentary Government and Democratization i 4 4 7 

latter case, trie party struggle takes on particularly subaltern forms be- 
cause it is motivated by purely material and personal interests. It is pos- 
sible and necessary to fight with the means of criminal law against 
political attacks upon the personal honor and the private life of an 
opponent and against the unscrupulous spreading of sensational false- 
hoods. However, the essence of the political struggle as such cannot be 
changed as long as there are elected bodies that decide about material 
interests. Least of all can it be changed by reducing the importance and 
the level of parliament, So much must simply be accepted as a fact. 
Every kind of esthetic or moralizing disdain is completely sterile with 
regard to the issue of domestic political reform. The political question is 
merely: What are the consequences of this progressive democratization 
of the means and organizational forms of political combat for the struc- 
ture of the political enterprise inside and outside of parliament? The 
developments just described are intimately related to the conduct of 
parliamentary affairs that we discussed earlier. 

Inside and outside of parliament a characteristic figure is required: 
'the -professional politician, a man who at least ideally, but in most cases 
materially, regards party politics as the content of his life. [To repeat 
once more : ] This figure, whether we love it or hate it, is in its present 
form the- unavoidable product of the rationalization and specialization of 
partisan activities on the basis of mass election. Here again it does not 
make a difference what degree of political influence and responsibility 
devolves upon the parties by virtue of the advance of parliamentarism. 

There are two kinds of professional politicians [as we. have seen]: 
Those who live materially "off" the party and political activities; under 
American conditions these are the big and small political "entre- 
preneurs," the bosses, and under German conditions the political 
"workers," the salaried party officials. Secondly, there are those who 
live ^for" politics, having independent means and being propelled by 
their convictions; politics becomes the center of their lives, as was true, 
among the Social Democrats, of Paul Singer, who at the same time was 
a party financier in the grand style.** It should be clear here that we do 
not deny the "idealism" of party officialdom. At least on the Left large 
numbers of irreproachable political personalities are found among the 
functionaries, such as one might have a hard time finding in other strata. 
However, although idealism is far from being a function of a persons 
financial situation, living "for" politics is cheaper for the well-to-do 
party member. Precisely this element — persons who are economically 
independent of those above and below them — is most desirable for party 
life and hopefully will not completely vanish, especially not from the 
radical parties. Of course, the party enterprise proper can nowadays not 



,! 



I 4 4 8 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

be operated by them alone — the bulk of the work outside of parliament 
will always be carried by the party bureaucrats. However, because of 
their very preoccupation with the operation of the enterprise, these 
officials are by no means always the most suitable candidates for parlia- | 
ment. The Social Democrats are the only major exception. In most 
bourgeois parties, however, the party secretary, who is tied down by his ] 
office, does not make the best candidate. Within parliament a predomi- $ 
nance of the party officialdom, no matter how desirable and useful its \ 
representation is, would not have a favorable effect. But such a predomi- ■ 
nance exists not even within the most bureaucratized party, the Social ■ A 
Democrats. In fact, party officialdom presents the relatively smallest , \ 
danger of bringing about a domination by the "bureaucratic spirit" to ' '■ 
the disadvantage of real leaders. This danger emanates much more from i 

the compulsion to take account of interest organizations for the sake of \ 
vote-getting; this leads to the infiltration of their employees into the ! 

list of party candidates, a phenomenon that would increase considerably 
if a proportional election system, requiring the voting for lists, were to 
be adopted. 4 " A parliament composed of such employees would be politi- ■ 

cally sterile. It is true, however, that the spirit of the employees of 
organizations such as the parties themselves and the trade unions is 
essentially different, due to their training in struggling with the public, 
from the spirit of the civil servant who works peacefully in the midst of 
filing-cabinets. Especially in the radical parties, and above all in the 
Social Democratic party, the danger posed by the bureaucratic spirit 
would be relatively smallest, since the vehemence of political combat 
counteracts the tendencies (not negligible even there) toward ossification ' 
into a stratum of benefice-holders. Yet even in these parties only a fraction 
of the genuine leaders were party bureaucrats. 

In all democratized parliaments and parties the present demands 
upon the political enterprise result in elevating one profession to a par- 
ticularly prominent role as a recruiting base for parliamentarians: the 
lawyers. Besides the knowledge of the law and, more importandy, the 
preparation for fighting an opponent which this profession affords in 
contrast to the office-holding of the employed jurists, a purely material 
element is decisive: the possession of a private office — today an absolute 
necessity for the professional politician. While every other free entre- 
preneur is prevented, because of the work load in Ms own enterprise, 
from meeting the increasing demands of regular political activity and 
would have to give up his occupation in order to become a political pro, 
it is relatively easy for the lawyer to switch, given the technical and 
psychological basis of his activities. The "lawyers' dominance" in a 
parliamentary democracy, which is so often and so wrongly deplored, Is 



; 



v ] Parliamentary Government and Democratization 1449 

only facilitated by the way in which even today the German parliaments 
fail to offer their members adequate offices, information services and 
clerical personnel.** However, we do not want to discuss here the tech- 
nical aspects of the parliamentary enterprise. Rather, we will ask in 
which direction the party Uadershif develops under the pressure of 
democratization and of. the growing importance of professional poli- 
ticians, pdrty officials and employees of interest groups, and which 
repercussions this has for parliamentary life. 



3. Democratization and Demagoguery 

The popular view of the German literati quickly disposes of the 
question about the effect of democratization: The demagogue will rise 
to the top, and the successful demagogue is he who is most unscrupulous 
in his wooing of the masses. An idealization of the realities of life would 
be useless self-deception. The assertion about the increasing importance 
of the demagogue has often been correct in this negative sense, and it is 
indeed correct if properly understood. In the negative sense it is true of 
democracy to about the same extent as, for the impact of, monarchy, the 
remark that some decades ago a well-known general made to an auto- 
matic monarch: "Your Majesty will soon be exclusively surrounded by 
scoundrels." A matter-of-fact consideration of democratic leadership 
selection will always include a comparison with other organizations and 
their systems of selection. A glance at the personnel affairs of bureau- 
cratic organizations, including the best officers' corps, suffices to make 
clear the following: A genuine acknowledgment by subordinates that 
a superior "deserves" his position is not the rule but the exception, espe- 
cially in the. case of new superiors who have advanced fast. Profound- 
skepticism about the wisdom of appointments, both with regard to the 
motives of those making them^as with respect to the means employed 
by those who have been particularly fortunate in obtaining their posi- 
tions, -dominates th^ttitudes of the great majority of serious insiders — 
quite irrespective of all petty gossip. But this mostly silent critique is not 
noticed by the public, which thus has no inkling of it. Countless experi- 
ences, which everybody can make all about him, teach that the quah'ty 
which best guarantees promotion is a measure of pliancy tetanic! the 
apparatus, the degree of the subordinate's "convenience?* for Mt myenm. 
The selection is, on the average, certainly not one of bom leaden. 

The same skepticism of the insiders prevails in quite a few Cases 

"' with regard to addemic appointments, although pubhc control s&otlld 

be able tojgxert itself here in view of the public character of the acdotn- 



14 5° PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. 11 

plishments, something that generally is not true in the case of officials. 
However, the politician and, above all, the party leader who is rising 
to public power is exposed to public scrutiny through the criticism of 
opponents and competitors and can be certain that, in the struggle 
against him, the motives and means of his ascendancy will be ruthlessly 
publicized. Sober observation should therefore show that the selection 
within the party demagogy proceeds, by and large, by no means accord- 
ing to less useful criteria .than does the selection behind the closed doors 
of bureaucracy. Contrary examples are provided only by new countries 
such as the United States, but for the Germanic states in Europe a 
denial of this observation would be plainly insupportable. Moreover, if 
even a completely incompetent chief of staff [Helmuth von Mohke] at 
the beginning of the World War is not supposed to be an argument 
against the monarchy's ability to recruit leaders, then it is also inadmis- 
sible to hold their blunders in recruitment against the democracies. 

However, we do not want to pursue further these politically sterile 
comparisons and recriminations. The decisive point is that for the tasks 
of national leadership only such men are prepared who have been 
selected in the course of the political struggle, since the essence of all 
politics is struggle. It simply happens to be a fact that such preparation 
is, on the average, accomplished better by the much-maligned "craft of 
demagoguery" than by the clerk's office, which in turn provides an 
infinitely superior training for efficient administration. Of course, politi- 
cal demagoguery can lead to striking misuses. It can happen that a mere 
rhetorician without superior intellect and political character gains a 
strong power position. But this description would not even apply to an 
August Bebel,* 7 for he had character, although he lacked a superior' 
mind. The period of his persecution [in the eigh teen-seventies] and the 
accident that he was one of the earliest [Social Democratic] leaders, but 
also that personal quality brought him the unreserved trust of the 
masses, which intellectually far superior party members could not rival. 
Eugen Richter, Ernst Lieber, Matthias Erzberger — they all belong to a 
similar type.* 8 They were successful "demagogues," in contrast to far 
superior intellects and temperaments who could not gain power in their 
parties despite their rhetorical triumphs before the masses. That is no 
accident — yet it is not a consequence of democratization; rather, it re- 
sults from the constraints that impose "negative politics." 

Democratization and demagogy belong together, but — let us repeat 
this — independently of the kind of constitution, insofar as the masses t 
can no longer be treated as purely passive objects of administration, 
that is, insofar as their attitudes have some active import. After all, the 
road to demagogy has also been chosen, in their own manner, by the 



v ] I drliamentary Government, and Democratization 14 5 1 

modem monarchies. They use speeches, telegrams and propaganda 
devices of all kinds for the promotion of their prestige; nobody can 
claim that this kind of political propaganda has proved less dangerous 
for the national interest than the most passionate demagogy [of party 
leaders] at election times. Quite to the contrary. In the midst of the 
-war we' now encounter even the phenomenon that an admiral engages 
in demagogy. The jurisdictional struggles between the former chancellor 
[Bethmann-Hollweg] and Admiral von Tirpitz were brought before the 
public in a wild campaign by the latter's followers (and' with his tolera- 
tion, as was correctly emphasized in the Reichstag); domestic interests 
joined the -fray on the admirals side, so that a military and diplomatic 
issue that could be resolved only with the most thorough knowledge of 
the facts [i.e., the issue of unrestrained submarine warfare] became the 
object of an unparalleled demagoguery among the masses, which in this 
case were indeed "uncritical," that is, without any means of judgment. 
Hence nobody can claim that "demagoguery" is a characteristic of a 
constitutionally democratic polity. The revolting batdes of the satraps 
and intrigiifs -:;f candidates for a ministry in January 191S also' were 
carried into the press and public meetings. These demagogic activi- 
ties had some impact. In Germany we have demagoguery and the 
pressure of the rabble without democracy, or rather because of the 
absence of an orderly democracy. 

However, we want to discuss here only the actual import of dema- 
gogy for the structure of political leadership; thus we want to raise the 
question of the relationship between democracy and parliamentarism. 



4. Plebiscitary Leadership, and Parliamentary Control 

Active mass democratization means that the political leader is no 
longer proclaimed a candidate because he has proved himself in a circle 
of honorathres, then becoming a leader because of his parliamentary ac- 
complishments, but that he gains the trust and the faith of the masses 
in him and his power with the means of mass demagogy. In substance, 
this means a shift toward the caesarist mode of selection. Indeed, every 
democracy tends in this direction. After all, the specifically caesarist 
technique is the plebiscite. It is not an ordinary vote or election, but a 
profession of faith in the calling of him who demands these acclama- 
tions. The caesarist leader rises either in a military fashion, as a military 
dictator like Napoleon I, who had his position affirmed through a plebi- 
scite; or he rises in the bourgeois fashion: through plebiscitary affirma- 



I 4 5 2 PARLIAMBNT AND GOVBRNMBNT IN GERMANY [ App. II 

tion, acquiesced in by the army, of a claim to power on the part of a 
non-military politician, such as Napoleon III. Both avenues are as 
antagonistic to the parliamentary principle as they are (of course) to 
the legitimism of the hereditary monarchy. Every kind of direct popular 
election of the supreme ruler and, beyond that, every kind of political 
power that rests on the confidence of the masses and not of parliament 
— this includes also the position of a popular military hero like Hinden- 
burg — lies on the road to these "pure" forms of caesarist acclamation. 
In particular, this is true of the t position of the President of the United 
States, whose superiority over parliament derives from his (formally) 
democratic nomination and election. The hopes that a caesarist figure 
like Bismarck attached to universal suffrage and the manner of his 
anti-parliamentary demagogy also point in the same direction, although 
they were adapted, in formulation and phraseology, to the given legiti- 
mist conditions of his ministerial position. The circumstances of Bis- 
marck's departure from office demonstrate the manner in which heredi- 
tary legitimism reacts against these caesarist powers. Every parliamentary 
democracy eagerly seeks to eliminate, as dangerous to parliament's power, 
the plebiscitary methods of leadership selt ction. A notable instance is 
found in the present French constitution and the French election law, 
which abolished list voting [in 1889] because of the Boulangist danger. 
However, French parliamentary democracy paid with that lack of 
authority of the supreme powers among the masses that is typical of 
France and so characteristically different from the position of the Presi- 
dent of the United States. By contrast, in democratized hereditary 
monarchies the caesarist-plebiscitary element is always much attenuated, " 
but it is not absent. As a matter of fact, the position of the present 
British Prime Minister [Lloyd George] is based not at all on the con- 
fidence of parliament and its parries, but on that of the masses in the 
country and of the army in the field. Parliament acquiesces (with con- 
siderable inner reluctance). 

Thus, the contrast between the plebiscitary and the parliamentary 
selection of leaders is quite real. However, the existence of parliament 
is not useless for that matter. Vis-a-vis the factually caesarist representa- 
tive of the masses it safeguards in England 1) the continuity and 2) 
the supervision of his power position, 3) the preservation of civil rights, " 
4) a suitable political proving ground of the politicians wooing the con- 
fidence of the masses, and 5) the peaceful elimination of the caesarist 
dictator once he has lost the trust of the masses. However, since the 
great political decisions, even and especially in a democracy, are un- 
avoidably made by few men, mass democracy has bought its successes 
since Pericles' times with major concessions to the caesarist principle of 
selecting leaders. In the large American municipalities, for -example, 



v] Parliamentary Government and Democratization i 4 5 3 

corruption has been checked only fay plebiscitary municipal dictators, 
whom the trust of the masses gave the right of establishing their own 
administrative agencies. And wherever democratic mass parries found 
themselves confronted with great tasks, they were obliged to submit 
more or less unconditionally to leaders who held the confidence of the 
masses. 

We have just illustrated, with the British example, the importance 
that under this circumstance parliament retains in a mass democracy. 
However, there are not only subjectively sincere "socialists," but also 
subjectively sincere "democrats" who hate the parliamentary enterprise 
so much that they advocate "socialism without parliament" or "de- 
mocracy without parliament." Of course, nobody can "refute" over 
whehningly powerful antipathies. But it is necessary to clarify what 
would be their practical consequence in a state with our monarchic 
constitution. What then would be a democracy without any parliamen- 
tarism in the German political order with its authoritarian bureaucracy? 
Such a merely passive democratization would be a wholly pure form 
of uncontrolled bureaucratic domination, so familiar to us, which would 
call itself 3 "monarchic regiment." Or, if we relate this democratization 
to the economic reconstruction that these "socialists" hope for, it would 
be a modem rational counterpart of the ancient liturgical state. Inter- 
est groups legitimized and (allegedly) controlled by the state bureau- 
cracy would be actively the agents of corporate self-administration, and 
passively they would be the carriers of the public burdens. The civil 
servants would then be supervised by these profit-oriented associations, 
but neither by the monarch who wgdU be quite incapable of doing it, 
nor by the dtizen who would lack all njKesentation. 

Let ds ttle a closer look at this wkk of the future. Such passive 
democtatpKJQB would not, for the foreseeable future, lead to the elimi- 
nation of the private entrepreneur, cam if there would he far-reaching 
nationahzitioti; rather, it would invoke a syndicalization of big and 
small capttftsts, small propertyless p rod u ce rs and wage earners, through 
which the economic opportunities of each category would somehow be 
regulated ant) — this is the crucial oriftr be monopolistjcally guaran- 
teed. "This would he socialism in about the same manner in which the 
ancient Egyptian "New Kingdom" was socialist. It would be democracy 
only if provisions were made for giving the will of the masses decisive 
influence on the management of this syndicalized economy. It is in- 
conceivable how this could be done witiKWt- arjnsptesentation safe- 
guardmg the power of the masses «xl continuibwjy controlling the 
syndicates: that is, without a demoaatfBed parliament that would be 
able to intervene in the substantive and personnel affairs of this ad- 
ministration. Without a popular representation of the present type an 



14 5 4 PARLIAMENT AND GCFVERNMENT IN GERMANY [ Aj>f. II 

economy of such industry associations can be expected to evolve a guild 
polity of protecting everybody's livelihood, and tbus to move toward 
a stationary economy 2nd the elimination of any interest in economic 
rationalization. For everywhere the concern with a corporate guarantee 
of a livelihood 'nas been decisive for economic groups that dispose of no 
or little capital as soon as they were monopolistically organized. He 
who wants to consider this an ideal of a "democratic" or "socialist" fu- 
ture is welcome to do so. But it takes the very shallow dilettantism of 
the literati to mistake such a cartellization of profit and wage interests 
for the ideal, so frequently propagated nowadays, according to which 
the production of goods be adapted in the future to needs and not, as 
at present, tt> profit interest — a contusion that arises time and again. 
For to "realize this last ideal it would obviously be necessary to proceed 
not from a cartellization and monopolization of profit interests, but from 
the exact opposite: the organization of consumer interests. The economic 
organization of the future would have to be established not in the 
manner of state-controlled compulsory producer cartels, guilds and 
trade unions, but in the manner of a huge, state-controlled and com- 
pulsory consumer cooperative; the latter, in turn, would regulate pro- 
duction according to demand, as some consumer cooperatives already ^ 
do (through production of their own). Again, it cannot be imaged J 
how the "democratic" interests — those of the mass of the consumers — 
can be protected in'any way other than through a parliament that also 
can control national production continuously. 

But this is enough about such pipe dreams. The complete aboli- 
tion of the parliaments has not yet been demanded seriously by any 1 
democrat, no matter how much he is opposed to their present form. 
Probably every democrat would like to retain them as the agency for 
enforcing the public control of administration, for determining the 
budget and finally for deliberating and passing laws — functions for 
which parliaments are indeed irreplaceable in all democracies. The op- 
position, insofar as it is sincerely democratic and not, as is usually die 
case, a dishonest screen for bureaucratic power interests, desires es- 
sentially two things: 1) that laws should be made not through parlia- 
mentary decision but through compulsory popular vote; 2) that the 
parliamentary system should not exist, that means, the parliaments, 
should not be the recruiting grounds for the national leaders and par- 
liamentary confidence should not be decisive for their tenure in office. 
As is well known, this is the established rule in the American de- 
mocracy; partly it derives from the direct popular election of the head 
of state and of other officials, and partly from the so-called principle of 
the "separation of powers." However, American democracy teaches the 
lesson, with sufficient clarity, that the elimination of parliamentarism 



v ] Parliamentary Government and Democratization i 4 5 5 

in this manner provides no more of a guarantee for impartial and in- 
corruptible administration than does the parliamentary system itself; 
the exact opposite is the case. It is true that, by and large, the popular 
election of the head of state has not worked out badly. The number of 
really unsuitable presidents has at least not been larger during the last 
decades than that of unfit monarchs in the hereditary monarchies. 
However, with the principle of popular election of civil servants the 
Americans themselves are satisfied only to a very limited extent. If 
applied generally, this principle eliminates not only what technically 
distinguishes the bureaucratic machinery: bureaucratic discipline, but it 
also fails to provide any guarantee for the quality of the officials in a 
large state. It puts the selection of candidates into the hands of invisible 
cliques which, by comparison with parliamentary parties and their 
leaders, are highly irresponsible toward the public. The candidates are 
presented to the voters who themselves have no capacity for technical 
judgment. This is a most unsuitable form of filling administrative posi- 
tions that require specialized technical training. It is precisely with re- 
gard to the most recent and advanced administrative functions, but also 
with regard to judgeships, that the trained officials appointed by the 
elected head of state in the United States are technically, and insofar 
as corruption is concerned, incomparably superior. After all, the selec- 
tion of trained civil servants and that of political leaders are two different 
things. — By contrast, the mistrust against the powerless and therefore 
corrupt parliaments of the individual American states has led to an ex- 
pansion of direct popular legislation. 

The flebisdte, as a means of election as well as of legislation, has 
inherent technical limitations, since it only answers"Yes" or "No." No- 
where in mass states does it take over the most important function of 
parliament, that of determining the budget. In such cases the plebiscite 
would also obstruct most seriously the passing of all bills that result 
from a compromise between conflicting interests, for the most diverse 
reasons can lead to a "No" if there is no means of accommodating op 1 ' 
posed interests through negotiation. The referendum does not know the 
compromise, upon which the majority of all laws is based in every mass 
state* with strong regional, social, religious and other cleavages. It is 
hard to imagine how in a mass state with severe' class tensions tax laws 
other than progressive income taxation, property confiscations and "na- 
tionalizations" can be adopted through popular vote. These difficulties 
might perhaps not impress a socialist. However, we know of no example 
when a state apparatus exposed to the pressures of a referendum has 
effectively enforced such often nominally exorbitant and partly con- 
fiscatory property taxes; this is as true of the United States as it is of 
the Swiss Cantons, in which the conditions are very favorable since 



I 4 5 *> PARLIAMENT AND GOVERNMENT IN GERMANY [ Afp: 11 

the population, by virtue of old tradition, thinks in terms of substantive 
issues and is well schooled in political matters. Moreover, the plebi- 
scitary principles weaken the autonomous role of the party leader and 
the responsibility of the civil servants. A disavowal of the leading of- 
ficials through a plebiscite which rejects their proposals does not and 
cannot enforce their resignation, as does a vote of no-confidence in par- 
liamentary states, for the negative vote does not identify its reasons and 
does not oblige the negatively voting mass, as it does a parliamentary 
majority voting against a government, to replace the disavowed officials 
with its own responsible leaders. 

Finally, the more the direct management of economic enterprises by 
the state bureaucracy were to grow, he more awkward would be the lack 
of an independent control organ (hat would have the power, as the 
parliaments do, to demand publicly information from the all-powerful 
officials and to call them to account. The specific means of purely plebi- 
scitary democracy: direct popular elections and referenda, and even 
more, 50 the instrument of the recall, are completely unsuitable in the 
mass IJpte for the selection of trained officials and for the critique of 
their performance. Since the importance of interested money is not 
negligible for the parties' campaigns even in parliamentary elections, its 
power and the impetus of the demagogic apparatus supported by it 
would increase all the more immensely if in a mass state popular elec- 
tions, and referenda were to prevail completely. 

It is, of course, true that compulsory voting and the referendum are 
the radical opposite of the situation so often deplored, namely, that the 
citizen in the parliamentary state fulfills no other political function than 
putting a ballot, provided ready-made by the parties, into a box every 
few years. It has been questioned whether this is really a means of 
political education: Without any doubt, it is that only under the con- 
ditions, discussed earlier, of public scrutiny and control of the ad- 
ministration which accustoms the citizens to the continuous offterva- 
tion of the administration of their affairs. However, the compulsory 
referendum may call the citizen to the ballot box dozens of times within 
a few months in order to decide about laws; the compulsory election 
imposes upon him the voting for long lists of candidates who are com- 
pletely unknown to him and whose technical qualifications for office he 
cannot judge. It is true that the absence of technical qualifications 
(which the monarch himself does not have either) is in itself no argu- 
ment against the democratic selection of the officials. It is certainly not 
necessary to be a shoemaker in order to*know whether a shoe fits. How- 
ever, not only the danger of growing apathy, but also of erroneous 
identification* of those responsible for abuses is extremely great if spe- 
cialized officials are popularly elected, whereas in a parliamentary system 



v ] _ Parliamentary Government and Democratization i 457 

the voter makes the leaders of the paWy which appointed the officials 
responsible for their performance. Andjinsorar as technically complicated 
laws are concerned, the referendum can all too easily put the result in 
the hands of hidden, but skillfully manipulating interests. In this respect, 
the conditions in European countries, with their highly developed 
trained officialdom, are essentially different from those in the United 
States, where the referendum is considered the only corrective against 
the corruption of the inevitably subaltern legislatures. 

These arguments are not directed against the use of the referendum 
as ultima ratio in suitable cases, even though the conditions in mass 
states differ from those of Switzerland [where this method is applied]. 
But the plebiscite does not make powerful parliaments superfluous in 
large states. As an organ of public control of the officials and of really 
"public" administration, as a means for the elimination of unfit top 
officials, as a locus for establishing the budget and for reaching com- 
promises among parties, parliament remains indispensable in the elec- 
toral democracies. In hereditary monarchies it is all the more indispen- 
sable, since the monarch cannot just go along with popularly elected 
officials nor, if he appoints the officials, take sides, lest his specific do- 
mestic function be compromised: to make possible a conflictless solution 
in cases when the political mood and the balance of power are not 
clear. Apart from being a check upon "caesarist" leaders, parliamentary 
power is necessary in hereditary monarchies because there may be long 
periods in which no one appears to hold the confidence of the masses; 
to a fairly general degree. Everywhere the problem of succession has 
been the Achilles heel of purely caesarist domination. The rise, neutral- , 
ization and elimination of a caesarist leader occur most easily without v 
the danger of a domestic catastrophe when the effective coJominauon r 
of powerful representative bodies preserves the political continuity and , 
the constitutional guarantees of civil order. 5 '.*> 

The point that really offends the democrats who are hostile to pa^.j^i' 
liament is apparently the largely voluntaristic character of the partisan ■"•-■^V. 
pursuit of politics and hence also of the parliamentary parties. As we -> 
have seen, "aetive" and "passive" political participants indeed stand at .' ; 
opposite poles under this system. The political enterprise is an enter- 
prise of interested -persons. (We do not mean those materially interested 
persons who influence politics in every form of state, but those politically 
interested men who strive for political power and responsibility in order 
to realize certain political ideas.) This very pursuit of interests, then, is 
the essential, part of the matter. For it is not the politically passive 
"mass" that produces the leader from its midst, but the political leader 
recruits his following and wins the mass through "demagogy." This is 
true even under the most democratic form of state. Therefore, the 



I 4 5 ^ PARLIAMENT AND COVERSTMENT IN GERMANY [ Aff. 11 

opposite question is much more pertinent: Do the parties in a fully 
developed mass democracy permit at all the rise of men with leadership 
capacities? Can they at all absorb new ideas? For they succumb to 
bureaucratization quite as does the state apparatus. The founding of 
new parties, with the necessary organizational apparatus and newspapers, 

, requires today such an investment of funds and labor, and is so difficult 
in view of the entrenched power of the existing press, that it is prac- 
tically almost out of the question. (Only the plutocracy of the war 
profiteers has under the very special conditions of the war succeeded on 
this score [with the establishment of the Fatherland Party].) 

The existing parties are stereotyped. Their bureaucratic positions 
provide the "maintenance" of the incumbents. Their store of ideas has 

; largely been fixated in propaganda literature and the pmy press. The 
material interests of the publishers and authors resist the devaluation 
of this body of literature through the transformation of ideas. The pro- 
fessional politician, finally, who must live "off" the party, least of all 
wants to see his intellectual equipment of ideas and slogans outmoded. 
Hence, the reception of new ideas proceeds relatively fast only there, 
where parties completely devoid of principles and devoted only to office 
patronage, as in the United States, add to their "platforms" whichever 
"planks" they think will gain them the most votes. 

Tile rise of new leaders appears even more difficult. For a long time 
the same leaders have been seen at the helm of German parties; these 
leaders in most cases deserve personally highest regard, but just as often 
they do not excel either intellectually or in strength of political tempera- 
ment. We have already mentioned the typical guild resentment against 
new men — this is in the nature of things. On this score, too, conditions 
are partly different in parries as the American ones. There it is the rulers 
of the parties, the bosses uho have a very stable position. They only 
want power, not honor or responsibility. For the sake of preserving 
their own power they do not expose themselves to the vagaries of a 
candidacy, which would lead to a public discussion of their political 
practices and thus could compromise the chances of the party. They 
therefore frequently present, even if reluctantly, "new men" as candi- 
dates. They don't mind that as long as these candidates are "reliable" 
in their sense. They do nominate them unwillingly, but' perforce, if 
these .men have such a vote-getting power, by virtue of their "newness," 
hence by virtue of some spectacular achievement, that their candidacy 
appears necessary in the interest of electoral victory. These practices, 
which have come into being under the conditions of direct election, 
are not at al! transferable to Germany and are scarcely desirable here, 
just as little transferable are the French and Italian conditions, the con- 
sequence of the party structure in these countries, under which a fairly 



v ] - Parliamentary Government and Democratization i 4 5 9 

limited number of political personalities considered suitable for a minis- 
terial post (jninistrable), occasionally supplemented by new men, rotate 
in the leading positions in ever different combinations. 

The English conditions are very different. Men with political tem- 
perament and leadership qualifications have there appeared and risen 
in sufficient numbers within the parliamentary career line (which we 
cannot describe here) and also within the parties, which are stricdy 
organized through the caucus system. On the one hand, the parliamen- 
tary career offers very good opportunities to men with political ambition 
and the will to power and responsibility; on the other, the parties are 
forced by the "caesarist" feature of mass democracy to submit to men 
with political temperament and talent as soon as these prove that they 
can win the confidence of the masses. The chance for a potential leader 
to get to the top is a function, as it turns out time and again, of the 
parties' power chances. Neither the parties' caesarist character and mass 
demagogy nor their bureaucratization and stereotyped public image are 
' in themselves a rigid barrier for the rise of leaders. Especially the well- 
organized parties that really want to exercise state power must subordi- 
nate themselves to those who hold the confidence of the masses, if they 
are men with leadership abilities; in contrast, the loose following in the 
French parliament is, as is well known, the real home of pure parliamen- 
tary intrigues. In turn, however, the solid party organization and, above 
all, the necessity for the leader to train and prove himself through con- 
ventionally prescribed participation in parliamentary committee worlc, 
guarantees fairly well that these caesarist trustees of the masses respect 
the established constitutional arrangements and that they are selected 
not purely emotionally, that means, merely according to "demagogic" 
qualities in the negative sense of the word. Particularly under the con- 
temporary conditions of selection, a strong parliament and responsible 
parliamentary parties, hence their function as a recruiting and proving 
ground of mass leaders as statesmen, are basic conditions for maintain- 
ing continuous and consistent policies. 



5. The Outlook for Effective Leadership in 
Postwar Germany 

The political danger of mass democracy for the polity lies first of all 
in the possibility that emotional elements will predominate in politics. 
The "mass" as such (irrespective of the social strata which it comprises 
in any given case) thinks only in short-run terms. For it is, as every 
experience teaches, always exposed to direct, purely emotional and ir- 



I 460' PARLIAMENT AND GOVERNMENT IN GERMANY [ Afp. U 

rational influence. (It has this in common, incidentally, with the modem 
"self-governing" monarchy, which produces the same phenomena.) A 
cool and clear mind — and successful politics, especially democratic poli- 
tics depends, after all, on that — prevails in responsible decision-making 
the more, the smaller the number of decision-makers is, and 2) the 
clearer the responsibilities are to each of them and to those whom they 
lead. The superiority of the American Senate over the House of Repre- 
sentatives, for example, is largely a function of the smaller number of 
senators; the best political achievements of the English parliament are 
products of unequivocal responsibility. Wherever such unambiguous 
responsibility defaults, the party system fails like any other kind of 
domination. From the viewpoint of the national interest the political 
utility of solidly organized interest groups rests on the same basis. Com- 
pletely irrational, from the same viewpoint, is the unorganized "mass" — 
the democracy of the streets? It is strongest in countries with either a 
powerless or a politically discredited parliament, that means, above all, vj 

^ria countries without rationally organized parties. In Germany, apart \ 

from the absence of the Latin coffee-house culture and the presence of "] 

a calmer temperament, organizations such as the trade unions, but ] 

also the Social Democratic party, constitute 3 very important counter- i 

balance against the direct and irrational mob rule typical of purely 
plebiscitary peoples. From the Hamburg cholera epidemic [of 1892] to the 
present time it has been necessary to appeal repeatedly to these organiza- 
tions for help whenever the state apparatus proved inadequate. That must 
not be forgotten once the times of hardship are over. 
* In Germany, too, the difficult first postwar years will be a severe 
test for the discipline x>f the masses. There can be no doubt that the 

» trade unions, in particular, will face unprecedented difficulties. For the 
up-and-coming young workers, who now earn ten times as much as in 
peacetime ancPenjoy a temporary license that will never recur, are being 
dishabituated from any sense of solidarity and any capacity to adapt 
to, and be useful for, the organized economic struggle. A "syndicalism 
of immaturity" will flare up once this youth is confronted with the 
normalcy of peacetime. It is certain that we will encounter plenty of 

- purely emotional "radicalism" of this kind. In the population centers 
attempts at a syndicalist putsch are quite possible, just as is a mighty 
groundswell, in view of the serious economic situation, of the political 
mood represented by the Liebknecht group. We must ask whether the 
masses will persist in the sterile negativism toward the state that must 
be anticipated. That is a" question of nerves. The outcome will depend, 
first of all," on whether the proud saying: "The appeal to fear finds no 
response in German hearts," will prove itself on the thrones. Moreover, 



v ] Parliamentary Government and Democratization i 4 61 

the outcome will depend on whether such explosions trigger again the 
familiar fear of the propertied, that means, whether the emotional effect 
of the blind fury of the masses will activate the equally emotional and 
senseless cowardice of the bourgeoisie, just as the beneficiaries of un- 
controlled bureaucracy hope. . 

Against putsch, sabotage and similar politically sterile outbreaks, 
which occur in all countries — even though less frequently here as else- 
where — every government, including the most democratic and the most 
socialist, would have to proclaim martial law if it does not want to risk 
the consequences that now appear in Russia. No further word is needed 
on this score. But: The proud traditions of peoples which are politically 
mature and free from cowardice have always proved themselves in such 
situations in that they kept their nerve and a cool head, crushed force 
with force, but then tried to resolve soberly the tensions that had led 
to the outbreak-rabove all, in that they immediately restored the guar- 
antees of civil liberties and in general did not let such events interfere 
with the manner of their political decision-making. In Germany, how- 
ever, one can be quite assured that the beneficiaries of the old order 
and of uncontrolled bureaucracy will exploit every outbreak of syndical- 
ist putschism, no matter how insignificant, in order to scare our philistine 
bourgeoisie which, unfortunately, still has pretty weak nerves. Among 
the most shameful experiences during the tenure cf Chancellor Mi- 
chaelis we must note that speculation on the cowardice of the bour- 
geoisie which expressed itself in the attempt to exploit in a sensational 
fashion, and for purely partisan purposes, the behavior of a few dozen 
pacifist fanatics, without regard for the effect upon our enemies — and 
also upon our allies. After the war similar intrigues will be repeated on 
a larger scale. By its reaction the German nation will then demonstrate 
whether it has attained political maturity. We would have to despair 
of our political future if these machinations were to succeed; unfor- 
tunately, some experiences make this appear a possibility. 

In Germany the democratization of the parties on the left and the 
right is a fact that cannot be undone — on the right it takes the form of 
an unscrupulous demagogy that has a counterpart not even in France. 
However, the democratization of the suffrage is a compelling demand 
of the hour, which can no longer be postponed, especially in the Ger- 
man hegemonial state "[Prussia]. Apart from all other considerations, 
reasons of state require, (0 since the equal suffrage is today the only 
way of ending the suffrage struggles, that their sterile perpetuation, which 
has led to such profound bitterness, must be eliminated from the 
political scene before the soldiers return from the field for the reconstruc- 
tion of the state; (2) that it must be viewed as politically un accept- 



1462 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

able to put the returning soldiers at an electoral disadvantage vis-a-vis 
those strata which maintained, or even increased, their social position, 
property and customers during the time when they at the front laid down 
their lives for those who stayed home. Of course, the obstruction of this 
political necessity is possible, but this would have terrible consequences. 
Never again would the nation be as solidary in the face of an external 
threat as it was in August 1914. We would be condemned to remain a 
small and conservative country, perhaps with a fairly good public ad- 
ministration in purely technical respects, but at any rate a provincial 
people without the opportunity of counting in the arena of world poli- 
tics — and also without any moral right to it."* 9 



NOTES 

1. Unless otherwise indicated, the notes and the emendations in (he text are 
by the English editors, as are the subheadings within sees, i-f, which merely in- 
tend to give the reader a better orientation. 

From Max WeLer, Gesammcite -politische Schriften, ed. Johannes Winckel- 
mann (2d ed.; Tubingen: Mohr, 1958), 294-394. The essays were first pub- 
lished together in the series "Die innete Politik," edited by Siegmund Hellmann 
(Miinchen and Leipzig: Duncker & Humblot, 1918). In certain passages Weber 
drew on Part Two of Wirtschaft wnd Geselhchaft, which was unpublished at the 
time. Hence, the reader will find certain repetitions in Weber's exposition of rule 
by notables and by bureaucrats, but at the same time he can observe the linkage 
between Weber's political views and his scholarly perception of secular changes. 
Yet as Weber himself points out in the preface, he does not claim scientific author- 
ity for his political views. Furthermore, the reader should keep in -mind that the* 
essay originated in newspaper articles which repeated the main points with prop- 
agandistic persistence. Weber's "Politics as a Vocation," which is his best known 
political essay in the United States, in turn takes up some of the themes of his 
wartime writings. It is truly the sum of his political perspective, but in its brev- 
ity it is even more of an occasional piece than the earlier political writings and 
hence in need of more extensive and concrete elaborations such as the present 
essay. 

In recent yef.rs Weber's politics have been given considerable attention. The 
Following selection is useful as background reading for his political writings; it 
also contains many references to other pertinent literature: Arnold Bergstrasser, 
"Max Webers Antrittsvoriesung in zeitgeschichtlicher Perspektive," Vierteljahrs- 
kefie far Zeitgexhichte, vol. 5, 1957, 209-19; Golo Mann, "Max Weber als 
Politiker," Neue Rundschau, vol. 75, 1964, 380-400; Wolfgang Mommsen, 
Max Weber und die deutsche Politik, 1890-1920 (Tubingen: Mohr, 1959); id., 
"Max Weber's Political Sociology and His Philosophy of World History," Inter- 
national Social Science Journal, vol. 7. I9 6 5. ^3-45! f° r an expanded version, 
see "Uni versa Igeschichtliches und polirisches Denken bei Max Weber," Histor- 
ische Zeitschrift, vol. zoi, 1965, 557-612; Guenther Roth, "Political Critiques 
of Max Weber: Some Implications for Political Sociology," American Sociological 
Review, vol. 30, 196;, 213-223; Gustav Schmidt, Deutscher Historismus und 
der V her gang zttr ■parlamentarischen Demokratie ("Historische Studien," vol. 



Notes 1463 

398; Liibeck: Matthiesen, 1964); Gerhard Schulz, "Geschichtliche Theorie und 
politisches Denken bei Max Weber," Vierteljahrshefte fiir Zeitgeschichte, vol. 12, 

1 1964. 325-350' 

2. Sections i to i« had originally been published in the Frankfurter Zeitung 
of May 27, June 5/6 and June 24, 1917 under the title "German Parliamen- 
tarianism in Past and Future". Cf. the bibliography in Eduard Baumgarten, ed. p 
Max Weber — Werk und Person (Tubingen: Mohr, 1964), 711; also Winckel- 
mann's introduction to GPS, 2d ed., XXXV. On the fall of Chancellor Bethmann- 
Hollweg on July 14, 1917 and the short rule of Chancellor Michaelis Cuntil Oc- 
tober 30, 1917X see below, notes 27 and 29. 

3. Moritz Busch (1821-1899) w^ Bismarck's principal press agent and 
official eulogist. His memoirs, Bismarck: Some Secret Pages of his History (Lon- 
don: Macmillan, 1898), were first published in England because of anticipated 
libel problems in Germany. 

4. After the initial measures of Bismarck's struggle to control the Catholic 
church (the so-called Kulturkampf, 1872-1887, which was strongly supported 
by the liberal parties), an attempt on his life was made by a certain Kullmann, 
an unemployed Catholic cooper, at Bad Kissmgen in July 1874. As again in 1878, 
when the Social Democrats were saddled with the responsibility for the Hodel 
and Nobiling attempts on the old Emperor's life, Bismarck immediately tried to 
rum this incident to political advantage in his conflict with the Center party. 
"You may renounce this murderer as much as you want," he exclaimed (very 
much alive) in the next budget debate, "but he bangs tightly on to your coat- 
tails; it is you whom he calls his party." See Karl Bachem, Vorgescfctcfete, Ge- 
schichte und PoiiriJt der deutschen Zentrumspartei, III (Koln: Bachem, 1927); 
2 1 91. 

5. Friedrich Julius Stahl (1802-1861) and Ludwig von Gerlach (1795- 
1877), both advisers of the romantic Prussian king Frederick William IV, were 
leaders of Protestant agrarian conservatism in mid-century Prussia. Stahl, one of 
the most effective spokesmen of the Divine Right of kings after the 1848 revolu- 
tion, was influential in shaping the Prussian con sii ration of 1850 along conserv- 
ative lines. Gerlach, a co-founder of the Krewz-dtywg, opposed Bismarck to the 
end, to the point of sitting with the Center delegates in she POSM870 Reichstag. 
On the older Christian-Social movement in general, set W. O. Shanahan. Ger- 
man Protestants Face the Social Question: The Conservative Phase, 1815-1871 
(Notre Dame: University of Notre Dame Press, 1954). 

6. Rudolf von Bennigsen (1824-1902), Joseph Vc?k (1819-1882) and 
Franz August Freiherr Schenk von Stauffenberg (1834-1901) were leaders of 
the National-Liberal party. Bennigsen headed the parry from 1866 to 1898; he 
lefused a seat in the government in 1877 and retired from the Reichstag from 
1883 to 1887, because he felt he could no longer cooperate with Bismarck. 
The right-wing Voik left the party in the m.-£ dispute over tariff legislation in 
1878; the South-German Sfauffenberg was one of the leaders of the left-wing 
Sezession in 1881. Benedikt Franz Leo Waldeck (1801-1870) was the leader of 
ihe democratic left in the Prussian National Assembly of 1848 a:;id again in the 
Prussian diet during the Constitutional Conflict, 1861-1869. 

7. Weber's father, Max Weber Sr., played a significant role m the Berlin 
National Liberal party of the Bisrmsi'ckian era as a city magistrate, deputy in the 
Prussian Diet and seme-time deputy in the Reichstag. Bennigsen, Mi<jucl, and 
other leaders of the party were frequent guests in his house, and "already the 
half-grown sons were permitted ... to overhear the political disputes and absorb 
whatever rhey could understand'' (Marianne Weber, Max Weher [Tubingen: 



I464 PARLIAMENT AND GOVERNMENT IN GERMANY [ Afjp, 11 

Mohr, 1926], 42). Although Weber was only 14 years old in 1878, the interest* 
of the early-maturing boy ranged far into political matters (cf. the letters of the 
14- and 15-year old reprinted in Baumgarten, Max Weber, op. ctt., 6-13); hence 
these and the following statements may indeed be based on his own memories 
from that period. 

8. Bismarck established the Reich as a federation of the ruling dynasties 
which were represented in the Bundesrat (Federal Council); they formally con- 
trolled all legislation and "governed" through its president, the chancellor who 
was appointed by the emperor and who normally was also prime minister of 
Prussia. The Reichstag was the only "unitary" institution, i.e. one representing 
the German people as a whole, hut it had only deliberative and budgetary powers 
and no control over the federal government. Many state functions — churches, 
education, the railroads, the post office, in the case of Bavaria even the army — 
remained under iht jurisdiction of the individual states. The central institu- 
tions which did exist were dominated by Prussia. 

9. On the background of the Prussian Constitutional Conflict, which 
brought Bismarck to power, see Eugene N. Anderson, The Social and Political 
Conflict in Prussia: 1858-186$ (Lincoln: The University of Nebraska Press, 
1954). 

10. Ludwig Windthorst (1812— 189O, a former Hanoverian minister of 
justice, was the leader of the Catholic Center party and as such Bismarck's 
major parliamentary antagonist, although sometimes a cooperating one, during 
the latter 's entire incumbency. 

11. On Bismarck and the anti-socialist legislation, see Guenther Roth, The 
Social Democrats in Imperial Germany (Totowa, N.J.: The Bedminster Press, 
1963), ch. Ill; Vemon L. Lidtke, The Outlawed Party: Social Democracy in 
Germany, 1878—1890 (Princeton: Princeton University Press, rp66). 

12. When Bismarck, in 1879, wanted to raise die customs tariffs in order 
to make the Reich less dependent upon the financial contributions of the member 
states, the particuferist (but protectionist) Center party, whose votes he needed, 
insisted that any excess of the new revenues above rjo million marks be trans- 
ferred to the states; if the Reich wanted any share of such sums, the question 
would again be thrown into parliament, which voted the annual matricular 
contributions. Georg von und zu Franckenstein (1825-1890), a prominent 
Bavarian member of the party, was the author of this clause. In Prussia it was 
complemented by the Huene bill (1885-1893), the work of the Center deputy 
and Silesian landowner Karl Huene Baron von Hoiningen (1837-1900), which 
required that the Prussian state pass on all but 15 million marks of the windfall 
Franckenstein monies to the counties and municipalities "in order to eliminate 
a stimulus for unhealthy expenditures of the Prussian state budget." Cf. Emst 
Rudolf Huber, Deutsche Verfassimgsgeschichte seit tj8o, HI (Stuttgart: Kohl- 
hammer, 1963), 951; Bachem, Zentrumspartei, op. cit, r III, 394!?. 

13. Herbert von Bismarck (1849—1904) was his father's secretary of state 
for foreign affairs from 1 886 to the latter's fall in 1 890. 

14. The idea that Roman law promoted capitalism is part of the nursery 
school lore of the amateurish literati: Every student must know that all char- 
acteristic legal institutes of modern capitalism (from the share, the bond, the 
modem mortgage, the bill of exchange and all kinds of transaction forms to the 
capitalist forms of association in industry, mining and commerce) were com- 
pletely unknown to Roman law and are of medieval, in part of Germanic origin. 
Moreover, Roman law never got a foothold in England, where modern capitalism 
originated. The reception of Roman Haw became possible iv> Germany because ■ 



Notes M^5 

of the absence of the great national guilds of lawyers, which in England re- 
sisted this development, and because of the bureaucratization of law and ad- 
ministration. Early modern capitalism did not originate in the bureaucratic 
model states where bureaucracy was a product of the state's rationalism. Advanced 
capitalism, too, was at first nor limited to these countries, in fact, not even 
primarily located in them; it arose where the judges were recruited from the 
ranks of the lawyers. Today, however, capitalism and bureaucracy have found 
one another and belong intimately together. (Weber's footnote.) 

15. On the Sezession and its merger with the Progressive party, see above, 
Part Two, ch. XIV, n. 9. On the organization in general of the German parties 
during the Empire, see Thomas Nipperdey, Die Organization der deutschen 
Parteienvor toi8 (Dusseldorfr Dxoste, 1961}. 

16. Compare also Weber's comment at the 1909 convention of the Verei« 
fur SozialfoUtik in Vienna, in which he confronted the older generation of 
members who had exalted the superiority of bureaucracy vis-a-vis "Manchester- 
ism", reprinted in GAzSS, 41 iff. 

17. Since it has been alleged from Russian quarters that Mr. Kerenski 
has made use of this passage from the Frankfurter Zeitung in public meetings 
to show the need for his offensive as a proof of "strength," let me here explicitly 
address this gravedigger of Russia's young freedom: An offensive can be 
launched only by someone who disposes of the necessary resources— for example, 
enough artillery to hold down the opposing infantry in its trenches, and enough 
means of transportation and supplies to let the own soldiers in their trenches feel 
their dependence on him for food. The "weakness" of the so-called "Social- 
Revolutionary" government of Mr. Kerenski, however, lay- in its lack of credit- 
worthiness, as has been explained elsewhere [cf. "Russlands Obergang zur 
Scheindemokratie," in Die Hilfe, April 26, 1917, reprinted in GPS, 192-210], 
and in the necessity, in order to gain the domestic credits required for . the 
maintenance of its power, to deny its own idealism, to conclude an alliance with 
the bourgeois imperialist Entente, and thus to sacrifice hundreds of thousands 
of its own countrymen as mercenaries for alien interests. I believe -that I was 
unfortunately right with this prediction, as with others that I made elsewhere 
on Russia's expected stance. (I see no reason to modify this passage, which was 
written many months ago,) (Weber's footnote.) 

18. Nachtwachterstaat was the epithet commonly applied to the liberal state 
with its minimization of functions by the critics of the laissez-faire doctrine. The 
reference, of course, is to "Mancbesterist" England. 

19. Eugen Schiffer (1860-1954) a National-Liberal deputy, was made 
undersecretary of state at the Imperial treasury in ^17. 

• 20. It is amusing that in the [ultra-conservative} Kreuzzeitung of all places 
an anonymous writer derives the incompatibility of the two positions from the 
formalist legal consideration that parliamentary deputies are supposed to vote 
according to their convictions, but Bundesrat members according to instructions. 
It does not put off the Kreuzzeitung that numerous Landr&te, who since Putt- 
kamer's times have been responsible for "representing the political line of the 
government," sit in the Prussian diet; nor is it disturbed by Imperial secretaries 
of state who, as deputies in the Prussian diet, would be expected to criticize the 
instructions they have received, as Bundesrat members, from the government 
which is responsible to this diet. If a party leader, who is also a member of the 
Bundesrat, cannot get the instructions that correspond to his c onvi ctions, he 
must resign. In fact, that should be done by every statesman [who ffiStot get the 
necessary mandate]. More on that below. (Weber's footnote.) 



■■I 



1466 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

21. Matthias Erzberger (1875-1921) was the most prominent Center party 
member of the war period. A leader of the democratic left wing, he played a 
key role in the process of parliamentarization and in the early post-war govern- 
ment; he was assassinated by nationalist fanatics in 1921. Cf. Klaus Epstein, 
Matthias Erzberger and the Dilemma of German Democracy (Princeton: Prince- 
ton University Press, 1959). 

22. After 1918 Alfred Hugenberg indeed became both: From his propa- 
gandistic basis in the newspaper and movie industry he went on to head the 
rightwing Deutsch'Natiomle Partei in 1928 and to join Hitler's first cabinet as 
minister of economics in 1933, in the completely mistaken expectation that he 
could manipulate Hitler. 

23. This is a reference to a much-used proverb, "In monetary matters Gemiit- 
lichkeit finds its limits"; it is said to have been first stated by the industrialist 
and liberal leader David Hansemann in the Prussian diet on June 8, 1847. 

24. Bismarck was Prussian minister to the loosely organized Federal Diet in 
Frankfurt, in which Austria still played a dominant role, from 1851 till 1859. 
Cf. Arnold Oskar Meyer, Bismarcks Kampf mit Osterreich am Bundestag zu 
Frankfurt (1851-1859) (Berlin: Koehler, 1927). 

2;. Richard von Kiihlmann (1873— 1948), a career diplomat appointed sec- 
retary of state in August 1917, had angered the military (Ludendorff) through a 
relatively conciliatory position on some procedural issues at the Brest-Litovsk peace 
negotiations late in December; this resulted in a press campaign and other pres- 
sures directed by the Great Headquarters for his dismissal — a goal which Luden- 
dorff attained only in July 1918, when Kiihlmann was forced to resign and was 
replaced by an admiral, Paul von Hintte. Cf. Erich Matthias and Rudolf Morsey 
(eds.), Der Interfrtiklionelle Attsschuss 1917/18 (2 vols.; "Quellen zur Ge- 
schichte des Parlamentarismus und der politischen Parteien," first series, vols. 
i/I-I-I; Dusseidorf: Droste, 1959O, H, 77fft 

26. The Haujttausschuss was formed in October 1916. It was in fact the 
Budget Committee, empowered to sit even when the Reichstag was not in ses- 
sion, with the specific purpose of debating foreign affairs and war matters; it 
comprised representatives of all parties on a proportional basis. Cf . Matthias and , 
Morsey (eds,), op. cit., I, xivff. 

27. After the fall of Chancellor Bethmann-HolJweg (on which see below, 
n. 29), an advisory committee of seven parliamentarians was forced by the mistrust- 
ful Reichstag upon the new chancellor, Georg Michaelis, to consult with him on the 
German response to the Papal peace note of August 19 17. This was the first 
time parliament explicitly participated in foreign policy formulation, and thus an 
important step toward parliamentarization. Cf. Epstein, ETzberger, op. cit., 2t6ff,; 
also Matthias and Morsey (eds.) f op. cit., I, 119-213, where the prehistory and 
course of the negotiations is extensively documented in protocols of committee 
sessions. 

28. Between December 1917 and March 1918 Trotsky negotiated with 
German diplomatic and military representatives at Brest-Litovsk. Wilson's Four- 
teen Points date from January 1918. 

29. On July 6, 19 17 Erzberger in a sensational speech revealed in the 
Hauptausschuss the failure of the unlimited submarine campaign and, with the 
backing of a new parliamentary coalition (usually referred to by Weber as the 
"majority parties"), pressed for a peace resolution of the Reichstag and speedy 
parliamentary reform. With the help of the military authorities, who were play- 
ing their own game, these moves resulted in the fall of Chancellor Bethmann- 
Hollweg a few days later. However, parliament had no influence upon the 



selection of the new chancellor, the Prussten Food Administrator Dr- Georg 
Michaeiis; even to its own atcbiguous formula of "peace without forcible terri- 
torial acquisitions" it obtained his grudging adherence on!) with the reservation 
"As I inttip;et it," 

Consequently, the Reichstag had r.o conikienc^ in the new chancellor, and 
3 second crisis occured in August, at the occasion of the Papal peace now, which 
resulted in the establishment cf the Committee of Seven 10 supervise the drafting 
of the German response. 

In October, finally, after the government had announced its intention to 
suppress the left-wing Independent Socialist party because of its' alleged (hut 
poorly documented) fomenting of a naval mutiny, the joint committee of the 
majority parties (the Inter fraktionelte Awsscfewss) demanded and secured 
Michaeiis' dismissal. In die ensuing negotiations the Beichstag insisted success- 
fully that his aged and infirm successor, the Bavarian Prime Minister Count 
Hertl:ng, a conservative member of the Center party and himself a former Reicksr 
tag deputy, come to an agreement with it on policy and personnel matters 
before taking office in November. For a convenient summary of these "parlia- 
mentarizing" developments in 1917, see Epstein, Matthias Erzherger, op. cit., chs. 
VJII-IX. 

30. In August 1917 nvo important parliamentarians joined the Michaeiis 
ministry, Paul von Krause, a National-Liberal deputy in the Prussian diet, was 
appointed Imperial secretary of justice, and the Center leader in the Reichstag, 
Peter Spahn, became Prussian minister of justice. In October the Nationai- 
Liberai deputy Eugen Schiffer was appointed undersecretary of state in the 
Imperial treasury. 

31. In the Herding government, the parliamentarians obtained for the first 
time policy-making positions. The Progressive leader in the Reichstag, Friedrich 
von Payer, was given the Imperial vice-chancellorship, and the left-wing National- 
Liberal Robert Friedberg was made vice-premier in Prussia. 

32. The January 19 18 crisis arose out of disputes between the civilian and the 
military leadership over the conduct of the Brest-Litovsk peace negotiations with 
Russia. Cf. alson. 25 above. 

33. Early in January 1896 William II sent a telegram to the President of 
Transvaal, Paul Kriiger, congratulating him on the repulsion of Jameson's raid, 
which had been backed by Cecil Rhodes. The Emperor acted upon the recom- 
mendation of the secretary of state. Baron Marschall von Bieberstein, who thereby 
hoped to prevent him from ill-advised intervention. The maneuver was part of a 
German attempt to isolate England diplomatically, but it actually increased 
Germany's isolation. — During the first Morocco crisis of 190 j/6 the German 
government tried to oppose French colonial designs on Morocco, William II 
visited Tangier, hut the subsequent international conference at Algeciras ended 
with a severe diplomatic defeat for Germany. During the second Morocco crisis 
in 1911 the German gunboat "Panther" was dispatched to Agadir, but in the end 
Germany lost another diplomatic round. 

34. For William II's doubts about the advisability of a trip to Tangier in 
t905, which he then undertook "contre coew" see his Ereignisse und Gestalten, 
187S-191S (Leipzig: Koehler, 1922), 9of. 

3 5. On a rather conciliatory conversation between Rhodes and William II, see 
op. cit., 72L 

36. On die Emperor's version of his opposition to the telegram and hb anti- 
cipation of English public protest, see op. cit., 6gf. 

37. At the time' Russia, France and Germany — which professed to be 



I468 PARLIAMENT AND GOVERNMENT IN GERMANY [ Aff. II 

alarmed about the 'TeUow Peril" — prevented Japan from annexing the Liaotung 
peninsula in the wake of her military triumph over China (treaty of Shimono- 
seki, April 1895). For the German aspects of these negotiations, cf. Emperor 
William II's autobiography, oy. cit„ 68, and Johannes Ziekursch, Das ZeUaber 
Wilhelnts II, vol. Ill of Politisch? Geschichtv des neuen deutschen Kaiserrekhes 
(Pranlcfurt: Sozietatsverlag, 1930}, $z3- 

38. The Emperor's Christmas present for Tsar Nicholas in 1895 was an 
allegorical drawing, ejcecuted or his Jesign by the painter Knackfus but repre- 
sented as his own work. It depicted the Archangel Michael gathering a cohort 
of ironclad ladies, recognizable "by their coats-of-arms as Germania, Britannia, 
Russia, etc,, for a crusade asj.w~.it the Yellow Peril, shown as a blood-thirsty 
moloch brooding on a cloud over humped peaceful cities. The gift and its title, 
"Nations of Europe, safeguard ycur most sacred goods," soon- became known and 
was widely ridi-niled, but the Emperor Udkvea he had achieved a diplomatic 
success when his ambassador reported (hat the hapless recipient had framed and 
hung the work of art*. "It really works! How very satisfying" he wrote on the 
margin of the report. Cf. Erich Eyck, Das v^ -"■iicke Regiment Wilhetms 11. 
(Zurich: Rentsch, 1948), 119; Emil Ludwig, Kaiser Wilhelm 11, trans. Ethel C. 
Mayne (London: Putnam's, 1926), 223f. 

39. On July 27,. 1900, William II made his iivamous "Hun" speech, whence 
derived theepithet commonly, applied to the German soldiers in the Anglo-Saxon 
countries during WorH War 1. In sending off the troops that were to participate 
in the crushing of the Boxer Rebellion, with Count Waldersee as the nominal 
commander-in-chief of the international expeditionary force of Russian, Japanese 
and English troops, William said among other things: "No pardon shall be given, 
no prisoners shall be taken. Whoever falls into your hands shall be at your mercy. 
Just as the Huns under King Arilia made a name for themselves a thousand years 
ago which still awes us in traditions and tales, you shall impress the name of 
the Germans upon China for a thousand years to come so that no Chinaman will 
ever again dare even to look scheel at a German" — a bad pun implying both an 
evil and a slit-eyed look. In his naval addresses, William employed such terms 
as that of the "mailed fist" which Germany wanted to apply in the world- Cf. 
Eyck, op. tit., 200, 172. 

40. Cn April 13, 1906, William, II seat a telegram to the Austrian foreign 
minister, Count A. Goluchowski, in which be Mid: "You have proven yourself 
a brilliant second in the duel and can he atae 4at I shall reciprocate in case of 
need." This contributed to Goluchowtkft 4apjatfsH a few months later. The 
German ambassador in Paris, Prince Radtifa, MOthed in a letter to Friedrich 
von Holstein (May 8, 1906); "We are, after afi, completely isolated in the world, 
and everybody hates us, even Austria, wfekk s absolutely furious about the 
Goluchowski telegram." See Norman Ridi and H. H. Fisher (edsO. The Hol- 
stein Papers, IV (Cambridge; At the UnrwMBy Press, 1963), 42if, 

41. See above, n. 34. On the Daily Telegraph Affair, see Wilhelm Schilssler, 
Die Daily-Telegraph-Affaire. Fiirst Buhw, Kzher Wilhelm und die Krise des 
Zweiten Retches [90S (Gdttingen: Mratenchaadt, 1952). 

42. Apparently a pejorative term for the Reichstag majority of Progressives, 
Majority Social Democrats and members of the Center party which in the sum- 
mer of 191 7 adopted a resolution for a peace without territorial aggrandizement 
and political, economic or financial exploitation. — In a 1917 letter the National- 
Liberal deputy Gustav Stresemann, who was to become the outstanding foreign 
minister of the Weimar Republic hut was a sOeng annexationist during most of 
the war, provides an illustration for the kind of duplicity that Weber derides 



Notes 1469 

here: "If today even conservative secretaries of state tell us behind closed doors 
that they desire parliar.sntarization because they fear that the personal conduct of 
politics by the Emperor may cause Germany immeasurable harm, then one can 
talk about this in confidential circles, but as a monarchic man one can never 
bring this most serious justification for parliamentarization before the public." Cf. 
Matthias and Money (eds.), Der InterfraktionelU Aitsschuss, op. tit., I, 1 57 n. 10. 

43. Late in 1917 newspapers bought up by Big Business accused the Frank- 
furter Zeitung and a Reichstag deputy of having been bribed with English 
money. My name and that of a National-Liberal colleague. were likewise linked 
to bribes by Lloyd George. And such assertions were believed in literary circles! 
This fact is indeed sufficient for judging the political maturity of this stratum. 
The doings of these sycophants prove that in Germany demagoguery without 
pariiamentarism and without democracy operates fully on the French level. 
(Weber's note.) 

44. Paul Singer (1844-1911), a Berlin factory owner, was a leading mem- 
ber of the Social-Democratic party, whose Reichstag delegation he headed from 
1885 on. 

45. This is exactly what later happened in the Weimar Republic, where pro- 
portional representation also led to a proliferation of parties based purely on the 
interest representation of specific groups. 

.46. As late as 1967, two deputies in the Bundestag of the German Federal 
, Republic had to share a single small room; the research staffs of the parliamentary 
factions were too small and completely overburdened. It was stilf difficult for 
parliament and the individual parties to recruit academic and other "in and out- 
ers," as they are familiar on the staffs of Congressional committees in the United 
States. 

47. August Bebel (1840-1913) was the leader of the Social Democratic party 
from its foundation in 1869. 

48. For Richter and Erzberger, see earlier notes. Ernst Liebfer (1838—1902), 
a liberal member of the Center parry, directed his party's parliamentary delega- 
tion after Windthorst*s death in 1891. 

49. Sec, v« of the essay, entitled "Parliamentarization and the Role of the 
States" QGPS, 394-^43 1 ), has not been included in this translation because of its 
more technical character. 



INDEX 

The index is divided into three parts: (i) An index of contemporary 
scholars cited by Weber; («) an index of other names mentioned in the text 
mainly historical; and (»») a subject index. The Introduction and the edi- 
torial notes have not been indexed. 



.SCHOLARS 



Bartholomae, Christian, 452, 467 

Bastiat, Frederic, 873 

Becker, Cail Heinrich, 261, 1076, 

1096 
Below, Georgvon, 237, 1223, 1235 
Bentbam, Jeremy, 866, 874, 879, 890 
Beyerle, Komad, 1249, 1256, 1263-64 
Binding, Karl, 840, 860 
Bohm-Bawerk, Eugen von, 69 
Bousset, Wilhelm, 508 
Breysig, Kurt, 439, 451 
Broglio d'Ajano, Count Romolo, 1305 
Biicher, Karl, 63, 99, 1 14-15, 128, 

142, 208-9 

Calderini, Aristide, 1357 
Carlyle, Thomas, 1419 
Comte, Auguste, 874, P88 
Cruickshank, Brodie, 1 240 

Deissmarm, Gustav Adolf, 485 
Demelius, Gustav, 796 
Deubner, Ludwig, 421 
Dvorak, Rudolf, 508 

Ehrlich, Eugen, 753, 776, 777, 854, 

896 
Escherich, Karl, 16 

Fichte, Johann Gottlieb, 113, 329, 338 
Frank, Carl (?), 537 

Gierke, Otto von, 51, 60, 366, 416 
law and, 708, 717, yzo~2i, 752, 

753 
Goldschmidt, Levin, 682, 800 
Gothem, Eberhard, 1286 
Gotte, Alexander, 16 
Gottl-Otdilienfeld, Friedrich von, 3, 

66, 67 
Gummerus, Herman, 1 27 
Gutrmann, Julius, 618 



Haller, Karl Ludwig von, 237 
Hanauer, G., 1275 
Harnack, Adolf von, 472, 51 1 
• Hasbach, Wilhelm, 294-95 
Hatschek, Julius, 720, 803, 879, 1248 
Hegel, Georg Wilhelm, 870 
Hegel, Karl, 1 259—60 
Hellpach, Wilhelm, 322, 337 
Herding, Georg Count von, 790, 1426, 

1467 
Heusler, Andreas, 700, 705 
Holl, Karl, 216, 

Jaspers, Karl, 3 

Jellinek, Georg, 330, 1209 

Jhering, Rudolf von, 29, 34, 769, 897 

Jung, Erich, 885 

Kanr, Immamiel, 887-88 
Karo, Joseph, 826 

Knapp, Georg Friedrich, 78, 79, 160, 
168, 169, 172, 174, 178, 179 
excursus on "State Theory of Money" 
of, 184-93 
Knies, Karl, 754 
Kohler, Joseph, 682, 737 
Kretschmayr, Heinrich, 1269 

Lambert, Edouard, 753, 776 
Lassalle, Ferdinand, 51, 870, 1130 
Le Bon, Gustave, 23 
Leist, Alexander, 739 
Leitner, Friedrich, 94 
Lenel, Walter, 1 269 
Leroy-Beaulieu, Anatole, 993 
Levenstein, Adolf, 529 
Levy, Hermann, 589, 1098 
Liefmann, Robert, 64, 66, 206 

Maitland, Frederic William, 720, 722, 
1222, 1224 



[in] 



iV 



INDEX 



Marx, Karl, it2, 305 

and natural law, 872, 874 
Meinhold, Johannes, 508, 580 
Mendelssohn-Bar tholdy, Albrecht, S^r, 

976, 1003 
Merx, Adalbert, 1 189, 1202 
Meyer, Eduard, n, 1308, 1317, 1358 
Michels, Robert, 1003 
Mises, Ludwig von, 78, 107 
Mitteis, Ludwig, 715, 749 
Mommsen, Theodor, 704, 1371 
Monrad, Hans Christian, 766 
Montesquieu, Charles de Secondat, 

Baron de, 1082 
Muller, Max, 417, 422 
Munzinger, Wemer, 765 

. Neurath, Otto, 104, 106, 107, in, 

207-8 
Nietzsche, Friedrich, 494, 499, 934, 
935. 1 1 34 

Oertmann, Paul, 29 
Oldenberg, Hermann, 466 
Oppenheimer, Franz, 64, 105, 208, 
640, 916 

Plenge, Johannes, 165 
Post, Albert Hermann, 1240 
Preuss, Hugo, 51,61, 416 

Radbmch, Gustav, 876 
Ranke, Leopold von, 355 
Rathgen, Karl, 1028, 1100, 1221 
Rickert, Heinrich, 3, 18, 1131, 1 157 
Rodbertus, Karl, 99, 124, 381, 384 
Rohde, Erwin, 422 
Rosenthal, Eduard, 853 
Rumelm, Max, 35 

Salzer, Emst, 1307, 1318 
Schaffle, Albert, 14 
Schar, Johann Friedrich, 94 
Schmidt, Richard, 976, 1003 
Schmoller, Gustav von, 1 18, 209 



Schonberg, Gustav von, 117 

Schulte, Aloys, 586, 1 184 

Schurtz, Heinrich, 78, 906, 1144 

Sering, Max, 377 

Sethe, Kurt, 1045 

Simmel, Georg, 3, 4, 10, 34 

Sismondi, Charles de, 10; 

Snouclc Hurgronje, Christiaan, 693, 
1232 

Sohm, Rudolf, 216, 772, 1112 

Sombart, Wemer, 105, 486, 611, 612, 
614, 1202, 1203 

Spann, Othmar, 4, 17 

Stammler, Rudolf, 4, 29, 338, 658 
convention and law as defined by, 34 
excursus in response to, 325-33 
logical confusion of, 32-33 

Stolzel, Adolf, 853 

Strack, Max L., 1357 

Sturz, Ulrich, 253, 1074 

Tarde, Gabriel, 23 
Tonnies, EeedmKnd, 4, 34, 60 
social relationships and, 41 
Treitschke, Heinrich for, 1388 
Troeltsch, Emst, 597, 59U 
Tugan-Baranovskii, Mikhail tvanovich, 
127 

Unger, Josef, 859 
Usener, Hermann, 402 

Vladimirskii-Budanov, Mikhail, 758 
Voigt, Andreas, 730 

Wagner, Adolf von, 600 
Weber, Alfred, 103 
Weierstrass, Karl, 1 1 16 
Weigelin, Emst, 29, 34 
Weismann, August, 16 
Wellhausen, Julius, 909 
Windscheid, Bemhard, 85.8 
Wittich, Wemer, 396, 398 

Zitelmann, Emst, 753 



II 



HISTORICAL NAMES 



Abimelech, 1131, 1316 

Abu Bekr, Cabph, 1 262 

Achilles, 771, 1112, 1283 

Aegfdius, St., 1 187 

Aelius Paetus Catus, Sextus, 850 

Aeschylus, 519 

Aeneas, 1283 

Agamemnon, 1283 

Akhenaton, see Ikhnaton 

Alribiades, 1317, 1338, 1365, 1372 

Alexander Jannaeus (king of Judaea), 

495 
Alexander the Great, 459, 504, 1054, 

1104, 1138, 1285 
Alexander III (tsar of Russia), 1228 
Alexios I (Byzantine emperor) 1270, 

1297 
At-Ghazall, 502, ri67 
Ali (Mohammed's son in law), 835, 

113ft, 1232, 1262 . 
Amenhotep IV, see Ikhnaton 
Amos, 441 

Antonin of Florence, 873 
Anselm of Canterbury, 553 
Appius Claudius, 797, ^58 
Aquinas, St. Thomas, 471, 598, ^600, 

1 178 
Archimedes, 507 
Arco, Anton, Count, 300 
Aristophanes, 918 
Aristotle, 207 
Arkesilaos II (king of Cyrene), 1224, 

i*35 
Arnold (a miller), 813, 831-32 
Amoid of Brescia, 586 
Artaxerxes, 455 
Asher, Jacob ben, 826 
Asoka (Indian king), 846, 1050,. 1171 
Athanasius, 558 
Atilla, 1468 
Augustine, St., 557, 558, 566, ^72, 

58 1, 834 



Augustus (Roman emperor), 478, 751, 

798, 807, 1 359 
Austin, John, 890 

Bacon, Francis, 841 

Bamberger, Ludwig, 1388 

Bastiat, Frederic, 873 

Baudelaire, Charles, 589 

Baxter, Richard, 471 

Beaumanoir, Philippe de, 794 

Bebel, August, 1450, 1469 

Benedek, Ludwig Ritter von (Austrian 

general), 21 
Bennigsen, Rudolph von, 1387-89, 

1411, 1412, 1463 
Ben Sira, 508, 510 

Bentham f Jeremy, 866, 874, 879, 890 
Bernard, St., 537, 552, 571 
Bethmann-HoHweg, Theobald von, 

1436, 1451, 1466-67 
Bethusy-Huc, Eduaid Georg Count 

von, 1412 
Bismarck, Herbert von, 1464 
Bismarck, Otto von, 338, irj7, 1404, 

1411, 1414. 1452. 1463, 1464. 
1466 
bureaucracy and, 989, 993, 997, 

1004 
demagogy, of, i44t 
legacy of, 1385-92, 1408, 1413, 

1424 
war and, 1426 
Blackstone, Sir William, 767 
Bossuet, Jacques Benigne, 1 193 
Botha, General Louis, 1434 
Bracton, Henry de, 743, 803 
Brun, Rudolf, 1301 
Buddha, 440 

contemplative mysticism of, 544 
duration of doctrine of,. 5581 
as exemplary prophet, 447, 448, 453 
fourfold path of, 461 



VI 



vt 



INDEX 



Buddha (cent) 

ideal, 487 

incarnations of, 247, 1 123 

love of, 580 

magic and, 457 

salvation and, 499, 632 

women and, 489, 605 
Biilow, Prince Bemhard von, 1409, 

M3S- 1436 
Burke, Edmund, 283 
Busch, Moritz, 1385, 1463 
Butler, Samuel, 514 

Caesar, Julius, 1365 

Calderon de la Barca, Pedro, 936 

Calvin, John, 444t 44^> 57*. "99 

Camillas, M. Furius, 414, 421—22 

Candiano IV, Doge Pietro, 1 268 

Carlylei Thomas, 1419 

Carnegie, Andrew, 161 6 

Catherine II (empress of Russia]), 
1065, 1066, 1098 

Catiliiia, 1 34 1 

Cato Maior (Marcus Porous, the 
Elder), 155, 1365 

Chamberlain, Joseph, 984, 1 1 33, 1 398 

Charlemagne, 460 

Charles of Anjou (Charles I of 
Naples), 1 1 52 

Charles I (king of England), 1021 

Charles Martef, 1178, 1182 

Charandas, 442, 1316 

Chrodegang (bishop of Metz), 1181 

Chun, Prince, 1434 

Gcero, Marcus Tullius, 270, 798, 807, 
918, 1310 

Claudius (Roman emperor), 712, 1043 

Claudius, Appius, 797 

Cleisthenes, 389, 1317, 1346 

Cleon, 1 1 30 

Clement of Alexandria, 580 

Clovis (Chlodovech), 1261, 1265 

Colbert, Jean-Baptistt, 239, 1098 

Commodus (Roman emperor), 475 

Comte, Auguste, 879, 888 

Conde, Prince de (Louis II de Bour- 
bon), 473 

Confucius, 445, 44°. 579 

Constantlne (Roman emperor), 590, 

837. i°55 
Cortez, Hemando, 191 



Coruncanius, Tiberius, 797 
Crassus, Marcus Liarmis, 1 132 
Cromwell, Oliver, 268, 542, 11 50, 

1152, 1 1 55, 1204, 1208 
Cuchulain, 11 12 
Cyrus the Great, 450, 4;; 

Dandolo, Enrico, 1270, 1272, 1297 

Dante (Alighieri), 521, 599 

David, 1018, 1231 

Decius (Roman emperor), 541 

Delcasse, Theophile, 1435 

della Scala, Cangrande, 1318, 1338 

Demosthenes, 127, 382, 383 

Diocletian (Roman emperor), 541, 

964, 1044, 1054 
Diomedes, 73 
Dionysios, 1363 
Dostoevsky, Feodor, 516 

Eckehart, Mejster, 552 

Edward I (king of England), 1 248 

Edward II (king of England), 1258, 

-i *94> 1352 
Edward III (king of England), 842, 

1295 
Edward VII (king of England), 1157, 

1407 
Egidy, Moritz von, 480 n.5 
Eike von Repgow, 794 
Eisner, Kurt, 242, 300 
Elijah, 441 

Elizabeth I (queen of England), 1060 
Empedocles, 445 
Ephialtes, 1314 
Erzberger, Matthias, 1412, 1424, 1450, 

1466 
Ezekiel, 443-44 
Ezra, 1235, 1245 

Fichte, Johann Gottlieb, 113, 329, 338 

Fox, George, 446 

Francis, St., 540, 552, 609, 1113, 

11 14, 1 1 87 
Francke, August Hermann, 569 
Franckenstein, Georg von und zu, 

1390, 1464 
Frederick I Barbarossa (Holy Roman 

emperor), 767, 852, 1286, 

1363 



Historical Names 



vit 



Frederick II (Holy Roman emperor), 
aoi, 12-58, 1259, 1260 

Frederick il the Great (king of Prus- 
sia), 813, 982, 993, 1098, 

1 1 55. "7 1 

Frederick William I (king of- Prussia), 

274. 7ti. 995 
Frederick William II (king of Prussia), 

832 

Frederick William IV (king of Prus- 
sia), 1463 

Friedberg, Robert, 1467 

Gaius (Roman jurist), 797-98 

Genghis Khan, 851,1053,1171 

George, Stefan, 245. 640. J ' 57 ■ 

George V (king of England), 1 1 57 

Gerlach, Ludwig von, [463 

Giano delta Bella (gonfaloniere'), 1304 

Gideon, 469 

Gladstone, William Ewart, 984, 1132 

Glaucos, 73 

Goliath, 468 

Goluchowski, Count Agenor, 1436, 

1468 
Gould, Jay, J 61 
Gracchus, Gaius Sempronius, 268, 

1336, 1370 
Gracchus, Tiberius Sempronius, 268, 

1336 
Gregory VII the Great, Pope, 519, ;6o, 

985, 1004 
Grimaldi (family), 1218, 1340 
Gustavus Adolphus, 1 1 54 

Hadrian (Roman emperor), 622, 807, 

1268 
Hammurabi, 480, 682, 826, 851 
Hansemann, David, 1466 
Harriman, Edward, 161 
Harunal Rashid, 1232 
Hector, 1283 

Hegel, Georg Wilhelm, 870 
Heinrich (bishop of Worms), 1259, 

1265 
Henry I (king of England), 1279 
Henry I (the Fowler, king of Saxony), 

1222 
Henry II (king of England), 762, 822 
law and, 842, 860 



Henry III (Holy Roman emperor), 

1 168, ri7i 
Henry FV (Holy Roman emperor), 

1004 
Herodotus, 387 
Herding, Georg Count von, 790, 1426, 

1467 
Hesiod, 441, 469, 500, 1290, 1360, 

1371 
Hillel (Jewish scholarch), 824 
Hin.l r:' urg, Field Marshal Paul von, 

1452 
Hintze, Admiral Paul von, 1466 
Holstein, Friedrich von, 1468 
Homer, 771, H45. "5J. n79» Il8 5 
Huene von Hoiningen, Karl Baron, 

1390, 1464 * 

Hugenberg, Alfred, 1413, 1466 

Ikhnaton (Amenhotep FV), 405, 419, 

449. * 1 59 
Innocent III, Pope, 838, 840 
Iosif, abbot of Volokolamsk (Iosif 

Sanin), 517 
Irenaeus, 558 
Isaiah, 427, 452 
Isidor of Seville, 837 

Jack of Newbury (John Winchcombe), 

135. 152 
Jackson, Andrew, 984 
James, St., 623 

James I (king of England), 841 
James II (king of England), 1325 
Jameson, Sir Leander Starr, 1433 
Jephthah, 1231 
Jeremiah, 771 
Jesus, 805 

brotherly love and, 592 

charisma of, 440, 630-32 

cult of, 571, 1185 

faith and, 563-71 

family and, ^38, 1245 

filial piety and, 579, 580 

forsaken, 1 1 1 4 

incarnation of, 1123, 1124 

lending justified by, 583 

monogamy and, 604 

observance of law by, 617, 623 

otber-worldliness of, 630-34 



v tit 



ISSFJE 



Jesus (ctwit.) 

proclamation of, 527-28 

resentment and, 498-99 

as savior, 527, 557, 558 

seA-uaHty and, 606 

social reform and, 444 

wealth and, 632 

women and, 489, 552 
Jimmu Tennfi, 1136 
John (king of England), 1 179 
John, St., 570 
John XXII, Pope, 586 
Joseph II (emperor of Austria), 1338 
Joshua, 433, 1138 
Josiah, 618, 1 160, 1 163 
Judah the Patriarch, 824 
Judas Maccabaeus, 1316 
Julian (Roman emperor), 475 
Justinian (Roman emperor), 721, 751, 
851; 1233 

Kambyses, 383 

Kant, Immanuel, 887-88 

Kerensky, Alexander, 288, 1465 

Ketteler, Bishop Wilhelm von, 1194, 

"434 
Kirdorf, Emi], 161 
Konradin of Hohenstaufen (king of 

Sicily), 1 1 52 
Kranse, Paul von, 1467 
Kriiger, Paul, 1431, 1433, 1467 
Knackfuss, Hermann, 1468 
Kublai Khan, 1 2 1 o 
Kiihlmann, Richard von, 1466 
Kuyper, Abraham, 595, 1 205 

Labadie, Jean de, 1 1 20 

Laertes (king of Ithaca), j 284 

Lao Tzu, 448, 466, 502, 544, 550 

Lasker, Eduard, 1388 

Lassalle, Ferdinand, 51, 870, 1130 

Laud, Archbishop William, 1062, 1107 

Law, John, 1098 

Laynez, Diego, 502 

Lenin, Vladimir I., 112 

Leo X, Pope, 587 

Leonardo da Vinci, 121 

Leopold I (Grand Duke of Tuscany), 

1321, 1338 
Leopold II (king of Belgium), 1407 
Lieber, Ernst, 1450, 1469 



Liebig, Justus von, 983 

Liebknecht, Karl, 1460 

Li^uori, St. Alfonsus, 605 

Lilbume, John, 550 

Livy (Titius Livius), 1356 

Lloyd George, David, 1452, 1469 

Louis IX (king of France), law and, 

842, 845, 860 
Louis XIV (king of France), 1 327 
Louis XV (king of France), 1039 
Louis XVI (king of France), 1 039 
Louis Philippe (king of France), 270, 

396 

Loyola, St. Ignatius of, 1 1 50 
LiidcJidorfF, General Erich, 1425, 1466 
Luther, Martin, 437, 446, 471, 557, 

573, 595, 59*. 606, 1175, 

1 180, 1 198 
Lysander (Spartan general), 131% 

'338 

Machiavelti, Niccold, 1296 

Mahd: (Hussein <bn Ali), 62; 

Mahdi (Mohammed Ahmed ibn Sey- 

yid Abdullah), 574, 596, 1179 
Maimonides, Moses, 826 
Mali k-ibn- Anas, 819 
Mallinckiodt, Hermann von, 563, 576, 

1209 
Mani, 446, 451 
Mann, Thomas, 518 
Mansfield, William Murray, 1st Earl 

of, 763, 890 
Manteuffel, Baron Otto von, 1412 
Marcion, 446, 451 
Maria Theresia (empress of Austria), 

1098, 1 1 55 
Marschail von Bieberstein, Baron 

Adolf, 1467 
Martha, 552 
Marx, Karl, 112, 305 

adherents of, 516, 777, 872, 874, 

109 1 
Mary, 552 
Maurice (of the House of Orange), 

1152, 1154 
Maximilian I (Holy Roman emperor), 

279, 281 
Mazarin, Jules Cardinal, 1328 
Meng-tse (Mencius), 1115 
Mentor, 1283 



Historical Names 



tx 



Michaelis, Georg, 1384, 1415, 1461, 

1466, 1467 
Miltiades, 1218, 1289, 1340 
Minnigerode, Wilhelm von, 1412 
MiqueT, Johannes von, 1412, 1463 
Mohammad (Muhammad), 443-46. 
625, 819, 835, 1138, 1231, 
1233 
charisma of, 440 
class support for, 457 
doctrines of, 466, 527 
as intercessor, 558 
Koran and, 459, 790, 805 
law and, 758 
monasticism and, 624 
predestination and, 572 
as prophet, 447 

religious infidelity and, 473, 474 
sexuality and, 604, 606 
taboos and, 461 
Moller, Theodor von, 1412 
Mpftke, Field Marshal Helm»*b von, 

21, 1450 
Montanus, 446, 451 
Montesquieu, Charles de Secondat, 

Baron de, ro82 
Morgan, Lewis H., 370 
Moses, 443, 459, 470, 536, 824 
Muhammad, see Mohammad 
Muhammad Ah* (ruler of Egypt), 1016 

Napoleon I, 244, 263, 267, 529, 692, 
1149, 1155, 1451 

code of, 270, 373 

law and, 866, 876, 877 

plebiscite and, 268 
Napoleon III (Louis Napoleon), 267, 

270, 876, 1452 
Nehemiah, 1335, 1245 
Nero (Roman emperor), 95 s, 1055 
Nicholas II (tsar of Russia), 1468 
Nikias, 383, 1361 

Nikon, Patriarch, 1192, 1210, 1361 
Nietzsche, Friedrich, 494, 499, 934. 

935. "34 
Novatianus, 446, 451 

Odysseus, 1283 

Omar (Umar), 154, 444. 574. 626, 
1 1 20, 1 1 53 



Panza, Sancho, 845 

Parsons, Talcott, 56-62, 206-1 r, 299- 

301 
Patroklos, 1284 

Paul, St (Paulus), 459. 5«. &>5. 
1187, 1283 
communal feast and, 435 
faith and, 557, 566, 567, 569 
pariah religion and, 622, 623, 63) 
redemption and, 48$ 
sensuality and, 510-11 
sexuality and, 606 
women and, 489 
work and, 245, 441 
Paul I (tsar of Russia), 1065 
Paulet, Charles, 1033 
Paulus, see Paul 
Pausanias, 1361 
Payer, Friedrich von, 1467 
Pelaghis, 572 
Pericles, 1130, 1342, 1358, 1360 

Peter, St., 435, "43 

Peter I the Great (tsar of Russia), 985, 

1065, 1066, 1098, 1:92 
Peter III (tsar of Russia), 1065 
Petronius, Gaius (orhiter eiegwtfw- 

mm), 945, 955. 137' 
Philip Augustus (ling of Fiance)^ 

1327. i35i 
Philo, 509, 532 
Pisano, Nicola, 488 
Pius X, Pope, 986 
Pizarro, Francisco, 191 
Plato, 445, 1 145, 1284 
Plekhanov, Georgi, 1 1 2 
Plutarch, 1337 
Pocahontas, 933 
Pompey, 510 

Posadowsky, Arthur Count, 141 1 
Priam (Trojan king), 1283 
Psammetichos (Libyan king), 1369 
Puttkamer, Robert von, 1 399 
Pythagoras, 445, 489, 60J 

Qatadah, 1232 

Radolin, Prince Hugo von, 1468 

Ramanuja, 446 

Ranke, Leopold von, 355 

Rathenau, Emil, 161 

Rheinstein, Max, 337-38, 640, 954 



IN1>EX 



Rhodes, Cecil, 1433, 1467 

Richelieu, Cardinal de, 1327 

Richter, Eugen, 1131, 1157, 1412, 

1450 
Robespierre, Maximilien de, 268, 1209 
. Rockefeller, John D,, 161 
Romulus (Roman king]), 1299 
Roosevelt, Theodore, n 30, 11 32 
Rousseau, Jean-Jacques, 506, 1 209 
Rudiger (bishop of Speier), 1246, 1263 

Saladin, 1435 

Salmasius, Claudius, 588, 1 190 

Salmeron, Alfonso, 502 

Sanin, Iosif, 517 

Saucken-Tatputschen, Kurt von, 14 12 

Saul, 247 

Savonarola, Girolamo, 1 267 

Schifrer, Eugen, 1411, 1465, 1467 

Scipio, Africanus, 1356 

Severus, Septimms, 1043 

Shakespeare, William, 568, 936 

Shammai (Jewish scholarch), 824 

Shankara, 446 

Shi Huang Ti (Shi Hwang Ti), 259, 

964 

Sienkiewicz, Henry, 955 

Silvester I, Fope, 837 

Singer, Paul, 288, 1447, 1469 ' 

Sismondi, Charles de, 105 

Smith, Joseph, 242 

Socrates, 442, 445—46 

Solon, 442, *,$!, 716, 1 3 16 

Spahn, Pete:, 1467 

Stahl, Friedrich Julius, 1463 

Spencer, Herbert, 569 

Stauffenberg, Fianz Freiherr Schenk 

von, 1387, 1412, 1463 
Stendhal (Henry Beyle), 878 
Stephen (king of England), 1276 
Stinnes, Matthias, -6i 
Stresemann, Gustav, 1003, 1468 
Sulla, ; 77 

Tacitu., 254, 472, 955 
Tarqui.iius Priscus (Roman king), 

1299 
Tauler, Johannes, 544, 550 
Telem chos, 1283 
Thersites, 1284 
Thucydides, 1 360 
Thutmose (Egyptian pharaoh), 1223 



Thyssen, August, 1445 
Tiberius (Roman emperor), 712 
Tirpitz, Admiral Alfred von, 1451 
Titus Tatius (Roman king), 1 299 
Tolstoy, Leo, 516 
Treitschke, Heinrich von, 1388 
Trimalchio, 1371 
Trotsky, Lev, 1466 

Ulpian (Roman jurist), 661 

Umar, see Omar 

Urban II, Pope, 474, 911, 11 78 

Varro, Marcus Terentius, 95s 
Vallabha Svami, 478 
Villard, Henry, m8 
Vdlk, Joseph, 1387, 1412, 1463 
Vollmar, Georg von, 141 2 

Waldeck, Benedikt, 1387, 1412, 1463 

Waldersee, Field Marshal Count Al- 
fred von, 1434, 1468 

Waldrada of Tuscany, 1268 

Wallenstein, Albrechr von (duke of 
Friedland), 11 54, 1364 

Wang An Shi, 259 

Weber, Max, Sr., 1463 

Weierstrass, Karl, 1 1 1 6 

Wesley, John, 446, 61 2 

Wilde, Oscar, 11 06 

William the Conqueror, 1080, 1276 

William I (German kaiser), 993 

William II (German kaiser), 1004, 
1 157, 1434-46. 1467, 1468 

Windthorst, Ludwig, 1389-91, 1412, 
1464 

Wissell, Rudolf, n 1, 208 

Xenophon, 450, 136; 

Zahringen, Konrad von, 1259 
Zinzendorf, Nicolaus Ludwig Count 

von, 538, 57i 
Zoroaster (Zarathustra), 440, 457, 466, 
467, 522, 527 

central concern of, 444 

orgiastic ecstasy of, 536 

peasantry and, 470 

as prophet, 447, 450 

religious infidelity and, 473 
Zwingli, Ufrich, 446 



Ill 



SUBJECT INDEX 



Accounting 
capital 

as basis for enterprises, 96, 99 
battle of man against man and, 93 
capital goods, 94, 1 54-56 
cartel formation, ro6 
defined, 9 1 
domination and, 108 
efficiency, 92 

formal rationality, 161-64 
occupational specialization and, 

143 
planned economies, 1 1 1 
■■ households and, 379 
in kind, 102-5 

monetary, rationality of, 86—90 
Action, social, see Social action 
Administration 
capital accounting and public, 162 
charismatic, 243-54; see also Cha- 
risma 
of city, 1220—21 
medieval plebeian city, 1314-15, 
1322 
collegial, 271-84; see also Collegia! 

authority 
denned, 213 
of democracy 

direct democracy, 289-90 
plebiscitary, 267-71 
representative, 292-99 
See aho Democracy 
domination and, 948-52 
of enterprises, 98 
feudal, 255-66, 966-67; see aho 

Feudalism 

hierocratic, 1163-64; see aho Hier- 

ocracy; Hierocratic domination 

of households, 90, 98, 1 09, 1 1 6, 

131-32,644 

appropriation, 44, 46, 132, 136- 

37 
See also Households 



Administration (cont.) 

of justice, 645-47, 7*7. 7*8, 764. 
77o. 775. 8i3. 817, 823, 841, 
844-49, 858, 874, 880, 882 

folk justice, 883 

Hindu sacred and secular law, 
791-92 

modem, 978-79 
of labor, 114 

expropriation, 137-40 
of law, 218-26, 977 

codifications, 844-45, 853 

contracts, 701, 702, 715, 721 

rationality of law, 809 

the state, 641, 644—45, 661-63 

substantive law, 644—47 
lyjric, 168-84 
manorial, 372 
by notables, 290-92, 1399-1400 

in city-states, 968 

justice, 794-96, 798, 799, 801-2, 
814 

law, 977 

See also Gerontocracy; Notables 
in organizations, 49 

order, 51-52 

political organizations, 915 
party, 284-88 
patriarchal, 234; see also Patriaichal- 

ism 
patrician, see Patriciate 
patrician city and royal, 1276—81 
patrimonial, 234 

in Antiquity, 1282-83 

See aho Patrimonialism 
of public financing, 194—201 
remuneration of, 201-2 
of the state, 331, 905 

law and, 641, 644-45, 661-63 
by traditional authority, 227-41; see 
also Traditional authority; Tra- 
ditionalism 
of utilities, denned, 72 



[xi] 



Xlt 



INDEX 



Administration Qcont.^ 
See also Bureaucracy 
Ahanta (Africa), 766 
Aisymttetes, 442-43, 1313-16 
Alessandria (Italy), 1286 
Alexandria (Egypt), 383, 1234, 1368. 
Allah, 522, 574, 625, 790 
Alsace-Lorraine, 50, 395-96 
Amsterdam (Holland), 589, 1208 
Anstalt, see Organizations— compulsory 
Anarchism 

control-and-disposal in, 67-68 
religious, 594-95 
Animism 

in China, 481 
as early religion, 401, 403 
in Egypt, 449, 4^6 
medical treatment in, 407 
Antiochia (Asia Minor), 435, 1 243 
Appenzell (Switzerland), 290 
Appropriation, see Economic action — 

appropriation and 
Arabia, 449, 820, 1273 
feudal 

military origins, 1077 
relationships, 1 072 
hierocracy in, social preconditions 

for, 1 1 77 
patriarchal, 1008 
patrimonial, armies in, 10:5-16 
scarcity and desert of, 70-71 
See also specif c Arabian cities 
Argos (Greece), 1359 
Aristocracy, see Nobility 
Armenia, 827 
Army 

bureaucratic, 221, 223, 1393 

degree of bureaucratization, 960, 

980-82 
disintegration of Roman Empire, 

970 
holy wars, 475 
officers as officials, 222 
passive democratization, 987 
Prussian army, 982, 1389-90 
ruler's dependence, 1004 
charisma and, 11 17— 18 
succession, 1124—25 
transformation, 1138-39 
city and citizen, 441 
communism in, 153 



3Ji. 



I3<>7. 

1260- i 



Army (_cont.~) 

discipline in, 1152-53 
economic bases for, 1 1 52, 1 1 54 
English, 268 
entrepreneurial, 222, 259, 

1318-20 
feudal, 260—62, 1071, ro72 
fiefs, 1076-78 
natural economy, 1094 
traditional authority, 233 
hierocracy and, 1160 
imperialism in political organization! 

and, 916, 917 
law and 

punishment, 651 
special laws, 839, 859 
in medieval plebeian city, 
13 19-21 
urban military autonomy, 
62 
mercenary, 596, 1017 
Carthaginian, 1364 
patriarchal, 1117 
patrimonial, 1015-21, 1046, iij^j: 
slaves, 1053 I" 

Roman, 353, 950, 981 

monetary disorders and, 970, 1 104 
voting, 1369-70 
traditional authority in capitalist, 
19th-century Chinese war god 
416 
Amhem (Holland), 1216 
Art 

religious stylization of, 406-7 
music, 407, 539 
popular art, 488 
religious ethics and, 607-ro 
Associative relationships (Vergi 
schaftung), see Social relati 
ships — associative 
Assyria, 427, 1030, 1032, 1051, 110a, 
1 1 18, 1 142 
fall of, 47 

military discipline in, 1 1 52 
Astrology, 407 

fatalism in, 419 
Athens (Greece), 127, 443, 987 
charisma in, 1137 
collegiality in, 274 
collegiate bodies, 996 



ill V i 



>i t- 



Athens (GisecO C..t-«f.) 
democracy ir:, :q^> 

pi'tktdriat, 35 = 
sconomy in 

economic policies, 135=, 1352, 

J 353 

urban 1.119 

want satisfaction, 350 
extra-urban associations in, 1 145 
functionaries in, 1314-15 
as garrison city, 1221 
imperialism of, 914 

empire formation, 1363, 1364, 
1366 
law of 

notables, 798 

status of persons, 1238 
lower classes in, 1 340-42, 1 344, 

i34 6 > 1348-49 
military discipline in, 1151, 1152 
qffice holding and gods in, 415 
patrician, 1282 

as warrior guild, 1 287, t 360, 
1 361 
personal property nu in, 352 
status structure m, 1358 
tyrannism, 131 5, 1317 
voting rights in, 1 3 1 1 
Australia 

kin groups in, 367 

religion in, and dream revelations, 

440 
representation in, 293 
Austria, 316, 338 
agriculture in, 149 
imperialism of, 915 
law of 

academic training, 804 
codifications, 858, 859, 863 
contracts, 669 
joint property laws, 373 
legal norms, 756, 777-78 
money in, 177 

monetary policy, 184—86, 192 
as nation, 922, 924, 925 
patrimonial decentralization in, 1051 
Authority, see specific types of author- 
ity: Charismatic authority; Col- 
legia! authority; Legal author- 
ity; Normative authority; Po- 



- <)\ 



authority; Trcditi' ■■."'.« 



.isif-.-c'yt^aiou.'i organizations, see Qr- 
X -what ions — denned 

Bs!-y=oT!ta. 826 

i" hartal nWiioy in, 336, 338 
charismatic legitimation in, 1 159 
the city in 
anriY- 1 -62 
as fortress, 1225 
feudal relationships in, 1072 
hieroc-acy in. 1179, ti8o 
law ot 

contract-;, 682, 683, 687, 693 
legal norms, 769 
otfcos in, 383 
patriarchal, 1007 
patrimonial 

decentralization, 1056, 1057 
monopolies, 1 1 03 
notables, 1067 
patrician city in, 1289, 1290 
religion in, 418—19 
dualism, 513-24 
merchants, 477 
intellecrualism, 501, 505 
mortality of gods, 418 
usury, 583 
Talmud of, 824, 825 
lyrannU in, 1316 
Ha Jan (Germany), 279 
Baghdad (Iraq), 820 
Baptists, see Protestantism 
Bakuninism, 988 
Belgium, 348, 910 
contractual law in, 741 
hierocracy and capitalism in, 1196 
nationality in, 397 
Benefices, see Feudalism — fiefs and 

benefices in 
Berlin (Germany), 1217 
Beme (Switzerland), 277, 1351 
Bethlehem (Palestine), 124$ 
Bochum (Germany), 1216 
Bodhisattva, 558 

as savior, 487, 488 
Boeoti a (Greece), 1363, 1364 
Bologna (Italy), 1302 



xtv 



INDEX 



Bookkeeping, use of double-entry, 92- 

93 
Bosnia (Yugoslavia), 556 
Bourgeoisie 

basis for unification of English. 241, 

1 290 
city commune and, 1226, 1229, 

1230, 1233, 1234 
confraternity of, 1254, 1255 
development of capitalism and, 241 
feudalism and 

accumulation of wealth, 1 1 o 1 , 

1 102 
independence, 1107 
freedmen as, 1358-59 
German 

fears, 1460-61 
political parties, 1445, 1446 
hierocracy and, 1 160 

democratization, 1193-96 
economy, 1183-85, 1186 
land confiscation, 1 182 
protection of, 1177, 1178, 1180, 
1181 
law and 
codifications, 841-42, 847-48, 

849, 858 
contracts, 724 
jury selection, 893 
notables, 875-76 
rationalization, 809 
substantive rationalization, 814 
medieval, 1346 
nation and, 924 
parliaments and, 296-97 
patrician city and, 1278 
patrimonialism and, 1108 
monopolies, 1098 
notables, 1060 
, political organizations and imperial- 
ism, 921 
political parties and, 11 30, 1131 
revolution of, 499 
Reformation and, 1 196-98 
religion and 

indifference, 485, 486 
Jews, 614 

Predestination, 574 
rotestanrism, 482 
religiosity, 477-80 
religious needs, 487-88 



Bourgeoisie (co«t.) 

Roman tribunate and, 3308, 1309 
sensuality and, 1 20 1 -2 
slavery and northern U.S., 693-94 
status groups and, 932 
Brahma, evolution of, 41 1-12 
Brahmanism 

bureaucracy and, 43 1 

clerical officials, 258 
burghers and, 1 230 
caste taboos in, 435 
city confraternity and, 1241 
congregations of, 455 
contractual law in, 678, 727 
craft guilds and, 1344 
disciple-master relations in, 445 
exclusiveness of, 1205 
intellectualism and, 501-4, 508 
obedience in, 561 
oral tradition sacred in, 458 
pastoral care in, 466 
politics and heroic death in, 591 
priesthood in, 427 
salvation in, 440, 532 
status honor in, 937 
women in, 489 
Brazil, 877 

contractual law in, 741 
Brescia (Italy), 1303 
Brest-Li tovsk (Russia), 1466, 1467 
Bruges (Belgium), 1100 
Buddhism, 522, 619, 935, 1 120 
begging in, 250, 44 1 
charisma and, 251 
clerical officials in, 258 
congregations in, 455, 456 
disciple- master relations in, 445 
dogma in, 463 
economy and, 627-30 

brotherly love, 581 

business life, 612 

ethics, 1 185, 1 188, 1 191 
equality of sexes in, 489 
fixing canons of, 459 
hierocratic 

caesaropapism, 1 174, 1192 

monasticism, 1170, 1171, J 173 

rationalization, 1193 

social preconditions, 1 1 80, 1 1 8 1 
intellectualism and, 502, 504-6, 
512, 516, 571,628-29 



Subject Index 



xv 



Buddhism Qcont. 1 ) 
monastic, 456, 461, 551, 629, 1123- 

24, 1165-67, 1170, 1171, 

IJ73 
mystagogues in, 453 
peasantry and, 470, 471 
petty-boi*geoisie and, 484 
politics aSd 

acceptance, 594 

brother^ Jove, 592 
popularized, 488 
preaching in, 464 
priesthood in, 426 
rationalization of law in, 817-18 
resentment in, 494, 497, 499 
salvation in, 461—62, 530, 539, 540 

incarnation, 551, 558 

knowledge, 567-68 

mysticism, 544, 546, 547 
schism in, 461 
soul-concept in, 404 
v theism of fate, 518 

transmigration of soul in, 526 
Budgetary unit and profit-making en- 
terprise, 98-99 
Bureaucracy, 956-1005 
asceticism and, 554—55 
capitalism ar^, 223-25, 259, 283, 

§56, 139^-95, 1402 
army, 980-82 

degree of bureaucratization, 988, 
1 000- 1 
development of capitalism, 224- 

25. 35i 

economic consequences, • 989—90 
extension of bureaucratization, 

974. 975 

law, 976-78 
changes in tasks of, 671-73 
characteristics of modern, 956-58 
charisma and, 250, 251, 254, 263 

compared, 1112— 13 

opposed, 244 
Chinese, 431,477, 964 

degree of bureaucratization, 969 

destiny and, 575- 

education, 999, root 

office purchase, 967 

passive democratization, 985 

permanence, 1401 



Bureaucracy (cent.) 

physical coercion, 968 

propriety, 579 
of the church, 221, 223, 964, 985- 
86, 1028, 1141 

clerical officials, 258, 259 

<kpersonaltzed, 959 
collegiality and, 279-81 
compared to patrimonialism, 1006-7 
concentration of management in, 

980-83 
domination by, 944, 947 
economy and, 963—69 

economic consequences, 989—90, 
1003 

office purchase, 966-67 

status vs. physical coercion, 967- 
68 

tax-farming, 965-66 
education and, 998-1002 

compared to charismatic educa- 
tion, 1 144 
in empire formation, 969-71 
in England, 1132—33 

degree of bureaucratization, 970- 
72, 984 ™ 

economic consequences, 989 

education, 999, 1001 

monarchy, 295-96 

notables, 974 

office purchase, ^66 

parliamentary investigation, 997 

passive democratization, 987 
in enterprises 

bureaucratization, 223, 956, 

1393-95 

means of management, 980 
feudalism and, 259, 264 

as transition phase, 1085-87, 
1089, 1090 
in France, 978, 1087, 1400 

degree of bureaucratization, 969, 
984 

education, 999 

office purchase, 966 

passive democratization, 985 

perpetuation, 989 
in Germany, 956, 1393-1^42 

army, 960 

colle^ate bodies, 996 



INK 



.iT-iticnrv 0-J ■"?■.' 

dr^.'te of H'/treaacrati^atson. 969, 

071 
economic corssRfji! en -res 989, 1005 
education, 5^9, iocs, rooz 
£ cr«gn policy, i<b:-42 
law, 977 

naivet£ of literati, 1399-1403 
officials, 962, 965, icoj 
parties and leadership, 1004, 

1424-30, :437-59 
party politics and corporate state, 

1 595-99 
politics, 1393-95 
power basis in, 1417-19 
ruler's dependence, 993, 994 
secrecy, 9^2 

supervision, 1 422-23, 1438-42 
judiciary, 893, 894 
law and 

codifications, 856 

contracts, 698, 709, 714, 717, 

719,710,724 
rationalization, 797, 801, 818 
legal authority and, 219-26 
leveling of social differences by, 

983-87, 1 08 1 
limitations of, 271—72 

political limitations, 1403-5 
monocratic, 123-26 
efficiency, 223—24 
social consequences, 225-26 
notables compared with, 673-80, 
972, 984, 988, 990, 996, 997, 
1001 
officials of, 259, 268, 958-63 
social position, 959-63 
as vocation, 958—59 
parliaments and 

parliamentary investigation, 992- 

93.997-98. 1416-31 
power position, 993 
in parries, 297, 1 1 29—33 

consequences of democratization, 

984-85 
degree of bureaucratization, 297, 

971 
economic consequences, 989 
extension of tasks, 969 
officials, 960, 961 



„.m«mc;acy (co«t.) 

politics of German parties, 1408- 
16 
patrimnnialisra and, 229 
compared, 1014, 1026 
continuity, 1 1 1 1 
decentralization, 1040 
medieval plebeian city, 1325-28, 

*330> 1334 
officials compared, 1028-31 

nnfree officials, 221 
perpetuation of, 987-89, 1003 
political organizations and extension 

of power by, 911 
politics and Roman, 593 
jx>wei of, 990—98. 1004 
private Jife and, 379 
rationalization by 

factory, 1156 

tradition, 11 16-17 
religion and 

god of scribes, 416 

holy wars and, 475 

impersonal power, 431 

irreligion, 476-77 
selection of leader in, 1133 
state, sm State— bureaucratic 
status qualification in, 567 
in United Sates, 267 
Burma, 817, 818 
Byzantium 
appropriation of means of production 

in, 134, 135 
circuses in, 1368 
bureaucracy in, 964, 1400-1 
charisma in, 242, 1 1 12 

legitimation by, 1 159 
the city in, 1 2 1 5 
feudal 

economic stabilization, 1096 

monopolies, 1097 
hierocracy in 

caesaropapism, 1161, 1162, 1192 

economy, 1182 

monasticism, 1171 
Jews and, 1203 
law in 

contracts, 714, 726 

notables, 797 

rationalization, 820, 826, 827, 
830, 831 



Subject Index 



jevii 



Byzantium (conO 

monasticism in, 588, 1171 
patrimonial 

decentralization, 1057 

liturgy, 1023 

notables, 1067 
religion in 

art, 609 

politics, 590 

sale of ikons, 586 
traditional authority in, 139 
Venice and, 1268, 1270, 1297 

Caesarism, see Democracy — plebiscitary 

Caffraria, 374 

Cairo (Egypt), 821 

Calculation, see Money — calculation 

and 
Calvinism, see Protestantism 
Cambodia, 8 1 7 
Canada, 50 

degree of bureaucratization in, 984 
contractual law in, 741 
as nation, 397, 922, 923, 924 
Canon law, 229, 828-31, 838, 852 
Capital 

patrimonialism and, 1 1 02—4 
property as source of, 927-28 
role of, 90-100 
concept, 94-95 
interest, 96—98 
See also Money 
Capital accounting, see Accounting — 

capita! 
Capitalism 

army under, 133 

bureaucracy and, see Bureaucracy — 

capitalism and 
calculations in kind and, 101-3 
charisma and 

glorification of reason, 1209-10 
opposed, 1 1 18 
in China, 164, 201 
city-states and, 1346 
development of, 199-201 
forerunners, 240—41 
money economy, 276-77 
otkos, 382, 38$ 
property, 378-80 
stages, 147-50 



Capitalism (co»t.) 

in England, 351, 1395, 1400 

bourgeoisie, 241, 1290 
enterprises under, 930 
feudalism's smothering of, 1099- 

1102 
fixed price and, 638 
freedmen and, 1358-59 
in Germany, 284, 1194, 1195, 1203 
bierocracy and, 1185-88, 1193-96 

hierocratjc ethics opposed to, 
1185-88 

ratwaafaariOB, 1192 
industry and, 155-56 
labor and, 165-66 
land appropriation and, 105 
law and, 826, 1464-65 

codifications, 847-48 

contracts, 685-87, 710, 724 

legal forms, 359 

legal systems, 890 

natural law, 872 

rationalizations, 814 
in medieval plebeian city, 1325, 

1329-32 
military discipline and, 1 1 56 
money resources and, J 13 
monopolies of, 659, 1102 
patrimonialism and, 239, 240, 1109 

compatibility, 1091 $ ' 

economic privilege, 1102-4 ;' 

monopolies, 11 02 

notables, 1063 

smothering development, 1097- 

political organizations and 

administration, 9 1 5 

communities, 346 

imperialism, 916—20 

power prestige, 912 
present as age of, 1 39 1 
progress towa id, 1393 
profit-making orientation of, 164-66 
rationalization under, 71 
religion and 

bourgeoisie, 478, 486 

caste taboo, 435—37 

Eastern religions, 629-30 

Judaism, 61 1-15, 1203-4 

peasant ideology, 47 1 

priestly power, 429 



XVlt t 



INDEX 



Capitalism (cowt.) 

proletariat, 486 

Protestantism, 479-80, 587-88, 
630, 1198—1200 
religious ethics and, 1 198— 1 200 
in Rome, 164, 351, 1203, 1464-65 
in Russia, 1095 
traditionalism and, 1094-95 
want satisfaction and, 351-54 
Carthage (N, Africa), 1230, 1317 
agriculture in, 149 
imperialism of, 914, 917 

empire formation, 1363, 1364 
patrimonial monopolies and, 1 103 
slavery in, 133, 163, 382, 693 
Catania (Sicily), 352 
Catholicism 

bureaucracy and 

church bureaucracy, 964, 985-86 

passive democratization, 985-86 

secrecy, 992, 1004 
character indelebiUs of priesthood in, 

249, 1141, 1166 
congregations in, 456 
dogma in, r 20 1 
economy and 

economic action, 615-16, 621 

usury, 578, 588 
fixing canon in, 459 
freedom of conscience in, 1209 
grace in, 560 
hierocratk 

capitalism, 1192 

caesaropapism, 11 75 
law in 

Canon law, 229, 828-31, 838, 

forgeries, 828 

inquisitorial, 809, 831 

rationalization, 829 
pastoral care in, 465 
politics and 

accommodation, 601 
medieval Catholicism, 599 
polytheism of, 518 
purgatory in, 522 
rationalism of , 537 
reglementation of conduct by, 11 65 
salvation in 

confession, 562-63 
faith, 566, 570 



Catholicism (c<wO. 

good works, 533, 1 199, 1200 
sexuality and, 605, 606, 611 
Cautelary jurisprudence, 410, 421, 

796-97 
Cazembe, empire of (Africa), 846 
Ceylon, 817, n 23 
Charisma, in i~57 

administration and, 243-154 

as basis for legitimate authority, 954 

in China, 113-15. HJ, ?& W, 

251, 253, ii45;>y>8-59 
in communism, 153, 1 187-88 

want satisfaction,. 1 1 19-20 
concept of, 216 J* 

defined, 241 . v. t '}. 

depersonalization of, 1135-39 

office, 1 1 39-41 
discipline and, 1148-56 

meaning, 1148—50 

origins in war, 1150-55 
economy and, 244,^45, 251-54 
education and, 1143^-45 
family and, 246 ,' 

kingdoms in Antiquity, 1^82-85 
glorification of reason and, 1209 
hierocracy and ? 

the church, 1163-64 

legitimation, 1158—59 ■.! 

monasticism, 1166-70 : : 

personal charisma, 11647-66 

secular powers, 1 161-62. 
kingship and, 243, 114IT-43 
law and 

contracts, 714 

discovery, 706 

Islamic law, 819 

legal norms, 761-62, 765-70, 

773-75 
prophets, 791 
revelation, 882 
legitimation of established order by, 

1146-48, 1158-59 
magic and, 241, 242, 247, 248, 

1 134, 1136-37 
opposed by estate-type domination, 

244 
in parties, 285-86 

control, 1129-33 
permanent structures and, 1133-35 
plutocratic acquisition of, 1145-46 



Subject Index 



xix 



CharismaTettKk) 

property^*!, 244, 245 
recognition as basis for, 242 
religious 
coercion of gods, 422, 427 
defined, 401 
disciples, 452 
education, 458 
faith, 568, 572 
fixing canons, 459 
grace, 560 
Jesute630-32 
mys&gogues, 447 
priests vs. magicians, 425-26 
prophejft 425, 439-40. 467, 1 106 
tabog£43* 
virtuosi, 439-4° 
representation '.and, 292 
revolu&Hary mature of , 1 1 1 5- 1 7 
routinfettion of, 246-54-, 1 121—23 
feuAk^elatipnships, 1070 
statufkonoj'^nd economy, 251-54 
succession, 246-48 
typeV of appropriation, 249-5 1 
as soaifacaon, 24 
in specral&ed occupations, 483 
status groups and, 306 
succession and, 247, 248, 253, 
1123-30, 1138, n 39 
acclamation, 1125-27 
transformation of, in democratic d£ 
rection, 266—71 
Charismatic authority, 241-4; 
defined, 215-16 4 
effectiveness of , 1117-18 
foundations of, 1114-15 
hereditary, 219 
nature of , 1 1 1 1-14 
other authorities combined with, 

263-66 
plebiscitary, 219 
social structure of, 1 1 19 
transformation of, 1 121-48 
Charismatic community 
defined, 243 

routinizan'on of charisma in, 246-54 
Charismatic ethics, capitalism vs., 

1185-88 
Chattal, sec Money 
China, 629, 1468 

agriculture in, 148, 149, 152 



China (cont.*) 
animism in, 481 
begging in, 194 
bureaucracy in, 431, 477, 964 
degree of bureaucratization, 969 

destiny, 575 

education, 999, 1001 

oftVe purchase, 967 

passive democratization, 985 

permanence, 1401 

physical coercion, 968 

propriety, 579 
capitalism in, 164, 201 
charisma in, 250, 251, 253 

education, 1145 

emperor, 243, 1 1 1 3-1 5 

legitimation, n 58, 11.59 

succession, 248 
the city in \ 

army, 1262 > 

burghers, 1229, 1231 

commune, 1228 

confraternity, 1241-42, 1260—61 

extra-urban associations, 1244—47 

fortress, 1221-23, 1227 
collegia lity in, 275, 279, 282 
division of labor in, 124, 125 
economy in, 11 82 

feudal, 1091, 1094 

industry, 149 

monks, 586 

monopolies. ■ 1 02-4 

stabilization > i 3 
18th-century population growth and, 

70 
feudal, 25^-59 

economy, 1091, 1094 

legiti ination, 1078 

patrimonial officialdom, 1090 

relational ips 1073 

wealth, . !■-::. 
financing in, 195, 197, 198 
Germany and, 1434-35 
hierocracy in 

caesaropapism, 1161, 1208 

economy. 11 82 

monasucism, 1171 

rationalization, 1193 
households in, 377 
imperialism of, 914 



XX 



INDfiX 






China («mO 

kinship groups in, 145 
law in, 647 

codifications, 845, 877 

contracts, 678, 716, 723, 716, 727 

property law*, 380 

rationalization, 815, 818, 812 

tort, 650 
military discipline in, 1 1 50 
money in, 168, 169 

dollar, 175 

history, 80 

monetary policy, 160, 185, 189- 

valuation, 170—71 
as nation, 924 
patriarchal, 1008 
patrimonial, 575, 1047-51 

collective liability, 1013-24 

decentralization, 1052, 1053, 
1055, 1057 

disintegration, 1043 

education, 1 108 

monopolies, 1 102-4 

notables, 1062-63, 1065-67 

officials, 1027, 1032, 1037, 1090 

recruitment, 228 

trade, 1092 
politics and sacred hards in, 590 
religion in, 586, 590, .;j', 6ri, 6t2 

ancestral cult, 482 

animism, 481 

bureaucracy, 43 t, 477 

congregation, 453, 455 

disposal of dead, 405 

divining priests. 465 

dogma, 46 a 

exemplary prophets, 448, 449 

inteliec realism, 500, 5^2, 503, 

laiv. 577 

merchants, 477, 478.. 630 
iTiysitigogUi^s, 447 
nobilifv, 49 1 
pe;iKiiiii-y, 470 
perishable sou!, 510 
peiiy-bo'.srjtferiisie, 484 
;-;.[>i!!.?!r. 492 
prs:'lr-;sts7iation. 57 1 " 
r.i:r.-.TJiOOil t /flS. 426 



China (co*t.) 

prophets compared to philosophers, 

446 
rationalism, 537 
rewards, 527 
sacred laws, 409 
self-perfection, 435 
successful gods, 427 
taboos, 435 
Taoist priests, 429 
vengeance, 580 
war god, 416, 475 
women, 489, 605 
See aha Buddhism; Confucianism; 
Lamakra; Taoism 
traditional authority in, 230, 436, 
239. 
ChristiMUty 
antipathy m seauahty in, 603-6 
art and, 6tar 
charism* in, and want satisfaction, 

I120 

clerical officials in, 258 
confraternity in, 1246-47 
congregations in medieval, 455, 456 
dissolution of clans and, 1 244 
divine origin of, 552 
dogmas in, 461-63 
economy and 

alms, 581-82 

brotherly love, 580 

ethic?, 1185, 1187-89, 1191 

exploitation, 583 

usury, 583, 584, 586-88 
equality of sexes in, 489, 490 
faith in early, 563 
gods in Western, 460, 462, 468, 518, 

522, 590 
hieroeraric 

cat'satMpapism, 1174 

"he church, 1164 

lnonasfitisra, n 66, 1201 

.■ociisi preconditions for, 1177—78, 
u8e> 
holy »<*rs *nd, 474, 475 
>: (j-issctuelism and, 56-1 

efriy, > jo-12 

medieval, ■; ; 3—15 

mc-sfcrn, 501 
Ii.i-.iv- <xiriJt)-'ivj:d to, 016 



Subject Index 



xxt 



Chrittianity (ccmt.) 

Judaism compared I©, 622 
law in 

canon, 828-31,838 

codifications, 84c, 860 

natural law, 866-67 

notables, 791, 79 2 

rationalization, 815, 819, 827, 

833 ' 834 ± « 

monasticism sod, 5". 555. " 66 > 

1201 
monotheism ih, 41& 44p~ u > 5*8 
other-worldinesi eS ettrj, 630-34 
patrimonialism and, 1034 
Pauline polemic in, 435 
peasantry in early, 469, 471. 47 2 
pettptkxiracottie and; 481-85, 486 
politics and 

just wan, 596-97 
love, 592 

perpetuation of social daises, 
1 599-600 

popularized, 488 
preaching in, 464 
priestly power in, 422, 42; 
prophets in, 440, 441 

magic, 457 
rationalism of, 554"55 
resentment and, 498 
salvation in 

communion, 531-3* 
faith, 564-68, 572 
savior, 558 
virtuosi, 540-41 
schism in, 460, 468 
secular law and, legal norms, 772 
See also Catholicism; Protestantism 
Church, 54, 1163-64 

bureaucracy and, 221, 223, 964, 
985-86, 1028, 1141 
Catholic chutch, 1393 
clerical officials, 259 
^personalized, 959 _ 
charisma and, 1 1 1 2, 1 1 1 3 
'■■irke, 1 140-41 
succession, 1 127 
g; compulsory organization, 52 
<:' ..'lined, 56 

JcjTiotrac) and, 1204-10 
■dc>;rua and, 566 
,-rct.nomic organization of 74 



Church (cowt.) 

feudalism and, benefice, 1074 
law of, 316 

notables, 79°-9 I 
medieval plebeian city and, 1333-35 
patrimonialism and 

decentralization, 1055-56 

officials, 1034-36 
Cilicia (Asia Minor), 510 
City, 1212-1372 

agriculture and, 1217-18 
categories o£, 1 2 1 5— 1 7 
citizen army and, 44 1 
commune, 1226-34 

absent in Asia, 1227-31 

occidental, 1226 
concepts of 

economic, 1212-15 

politico-administrative, 1220-21 
democracy and, 1335. I339-7 1 
as fortress, 1221-25, 1227 
as fortress and market, 1212-15, 

1 223-27 
medieval compared to ancient, 1290— 

9 6 > 1339-7* 
constituencies, i343~49 _ * 

economic policies and military in- 
terests, r 349^54 
empire formation, 1363-68 
origin of ancient lower class, 

1 340-43 
status structure, 1 354 - 59 
warrior guilds vs. commerce, 

1359-63 
medieval plebeian, 1301-39 
ancient parallels, 1308-17 
attitude to non-citizen strata, 

i33i-33 
autonomous law, 1325-26 

character of jropolo, 1302-3 
the church, i'333~35 
instruction of patrician rule, 
1301-2, 1304-5* 13«>7. *1°9* 

1 :-,n, 1313-17 

distribution of power, 1 304-7 
economy, )3iQ- 2t > i3 l6 -35 
pohrical autonomy, i3~3™ 2 4 . 
si&i'jria, 1317-' 12 ' 
'axing, 1327-28 
t>.-: .Mjo-kgirimate domination; 1212, 

: ,68 



$ 



XXtl 



INDEX 



City (cotft,) 

occidental, 1236-65 

commune, 1226 

as confraternity, 1241-44, 1250— 
61, 1264 

consequences of confratemization, 
1248-51 

extra-urban associations, 1244—48 

landownership and legal status, 
1236-41, 1245 

military autonomy, 1260-62 
patrician 

ancient, 1282-90 

ancient compared witK medieval, 
1290-96, 1339-72 

destruction of rule, 1301-2, 
1304-5, 1307, 1309. 13". 
1 3 13-17 

medieval, 1267-82 

nature of rule, 1266-67 
religions and, 415-16, 482, 483 

early Christanity, 472 
urban economy of, 121 8-20 
City-state (folis) 
burghers and, 1230 
bureaucracy in, 968 
as coastal settlement, 1285-90 
confraternity and, 1250 
contractual law in, 714, 716 
development of prophecy -ind, 44 1 
economy of, 1349—68 

economic policies, 1349-54 

empire formation, 1363-68 
gods and, 590 
hierocracy in, 1160, 1161 
military discipline and, 1152 
relationships in feudal, 1071. 1072 
religions of, 500 
social classes in, 1340-50 

stratification, 443 
status structures in, 1354—59 
as warrior guilds, 1359-63 
See also City 
Clans 
appropriation in, 46 
blood revenge and, 35 
collegialiry in, 276 
confraternity and dissolution of, 

1243-44 
contractual law in, 716 



Clans (co«t.) 

domination in, 956 
patriarchal, 1014 

in Israel, 1230, 1231 

patrician, 1230-31 

religious congregation in, 454 

traditional authority in, 228 
Clan-state (Geschtechterstoat) 

defined, 250 

35 depersonalization of charisma, 

"3S-39 
Classes, see Social classes 
Closed social relationships, see Social 

rela tionships — closed 
Collective action (Ma$senkan4eln'), 
319, J375f r 377; M* also So- 
cial action; Social groups 
Collegia! authority 

administration in,, 271-84 

bodies exercising, 994-98 

bureaucracy and, 1089 

economy and, 283-84 

importance of, 222 

other authorities combined with, 

262 
types of, 271—82 
Colmar (Alsace), 396 
Cologne (Germany), 1217, J246 
confraternity in, 1250-51, 1:155-57, 

1259, 1164 
craft guilds in, 1344 ' 

patrician, 1278 
Communal social relationships (Verge- 
mmnschaftung), see Social re- 
lationships — communal 
Commune, s«e City— commune 
Communism 
charisma and, 153, 1187-88 
want satisfaction, 1119-20 
credit and, 81 
domestic 1070 
economic model for, 719, 777 
forms of, 153-54 
agrarian, 469 
organization of, 150 
household, 122, 154, 359-60, 363, 

374, 1070 
state, 74 

substantive rationality in, 86 
warrior in, 1 1 53—54 



Suhject Index 



xxttt 



Zkunpetifion, see Social relationships — 

competition in 
Compulsory association (.AnstalC), see 

Orga niia tions — compulsory 
Condottieri, 259, 1318-20 

charismatic, 222 
Conflict {Kamyf), see Social Relation- 
ships — conflict in 
Confucianism, 453, 464 
bureaucracy and, 476 
clerical officials, 258 
charismatic education in, 1 145 
cosmos in, 431 

disciple-master relations in, 445 
dogma and, 462 
economy and 
alms, 581 

ethical ideal, 617, 630 
obedience, 579 
usury, 583 
vengeance, 580 
ethics in, 438, 617, 630 
filial piety in, 1050 
fixing writings of, 459 
intellectualism and, 502, 504, 508, 

512 
magic and, 579 
masses and, 488 
nobility and, 472 
patrimonialism and, 1109 
politics and, 594, 600 
rationalism of, 537 

music, 539 
rationalization and hierocra tic, 1193 
salvation in, 554 

predestination, 575 
self-control in, 619 
self-perfection and, 1 049 
sexuality and, 606 
the state and, 377 
Congregations, sec Religion — congrega- 
tions in 
Consensual action (Einverstondnis- 
gemeinschofO, see Organiza- 
tions — consensual order in 
Constantinople (Turkey), 1017, 1096, 

1233, 1368 
Continuity, defined, 67 
Contracts, see Law— contracts and 
Convention, 652 
custom and, 29, 337 



Convention (cottt.) 

defined, 33-34, 311-12 

law and, 319-25, 337 
legal norms, 325-26 

legal order and, 312, 314 

legitimation of order by, 33-36 

limitations of, 331 

market and, 82-83 

as rules for conduct, 332 

sexuality and, 607 

status groups and, 307 

traditionalism and, 326 
Corinth (Greece), 554 
Credit 

business, defined, 91 

denned, 81 

use of, 81-82 
Croatia, Serbia compared to, 395 
Currency, see Money 
Custom (Sitte'), 652 

action oriented by, defined, 29 

convention and, 29, 337 

defined, 3 1 9 

economic action and, 320 

innovations and, 321-23 

law and, 319-25, 332, 337 

limitations of, 331 

norms of behavior and, 3 1 2 

factual regularity of conduct, 332 

patrimonialism and, 1010-n 
Cyprus (Creece), 1 282 
Cyrene (Cyrenaica), 1 224, 1285 
Czechoslovakia, nationality in, 398 

Dahomey (Africa), 766, 845-46 
Dalai Lama, 267, 463, 555, 559, 1124 

selection of, 247 
Damascus (Syria), 143; 
Dan2ig, 1 100 
Democracy 

ancient and medieval, 1335, 1 339— 

72 
city-states and empire formation, 

t 363-68 
city-state vs. city, 1359-63 
constituencies, 1343-49 
economy, i.V;9 -59 
origin of ;iiicicni lower class, 

1340-43 
bureaucracy and 226 



XXI V 



INDEX 



Democracy (jcont. - ) 

degree of bureaucratization, 984- 

85 

opposed, 99 1 

passive democratization, 985-87 

status groups, 1001 
charisma and, 266-71 

electoral transition, 1 127-30 

succession, 1 126, 1 127 
the church and, 1204—10 
direct, 289—92 

administration of, 289—90 

domination in, 948-52 
Greek, 1311-15 

justice and, 795 ■ 
hierocracy and bourgeois, 1 193-964 
law and, 662-63 

contracts, 719 

rationalization, 811-13 
parliamentary, 1442—62 
in patrician city, 12S0 
plebiscitary, 1126 

administration in, 267-71 

charismatic authority, 219 

defined, 268 

economy, 269-71 

legitimation in, 267 

parliamentary control, 1451—59 
personal property tax and, 251-52 
representative, 292-99, 1128, 1442- 
62 
Division of labor 
defined, 1 14 
economic, 114— 18 

establishments and firms, 1 16-17 
by sex, taboo and, 434 
wcial aspects of, 122-37 

appropriation of means of produc- 
iior,, 130-36 

??>p?nprisEion of managerial func- 
tions, 136^-37 

appropriation of workers, 125-30 

in Chins, 115 

■iciiiinatiun, 123 

;ii %ypt. i20, II4 

;p Gensar-y, mir, a-2 

i;i Isidi*. il-i-i.6 

l-schnica!, iiS-a* 
defined; 114, s jS~J9 

MiilCCS of pCi'A?r. l^J 



Domination (HemeJwfO 
administration and, 948-52; see also 

Administration 
by authority, 941-48 

defined, 943, 94^-47 

See also specific types of authority 
bases for legitimate authority and, 
952-54 

principles, 954 
capital accounting and, 108 
charismatic, 1 1 19 
church, 56, 315 
defined, 53, 61-62, 1378-79 
division of labor and, 123 
by economic power, 94 1-48 

defined, 943, 946-47 

See also Eetoomy 
established* orcW and* ff*H 
estate-type 

appropriation in, aj»->3 

charisma opposed, 244 

division of powers, 236-37 

polity, 1085—87, 1098 
language and, 95r, 955 
organizations for, 53, 720—21 
patriarchal, 943, 945, 1006-10 
patrimonial, 1010-69 
profit-making and, 164 
state, 55-56; see also State 
of workers, 73 

See oho Hierocratic domination; 
Legitimate domination; Non- 
fegitimate domination 
Dusseldorf (Germany), 1217 

Economic action (Wirtschaften), 63- 
21 1 
appropriation and 
defined, 44, 75 
managerial functions, 1 36-37 
market economy, 112-13 
of means of production, 93, 130- 

36 

principal forms of , 144—50 

of workers, 125-30 
calculations in kind and, 100-7 
capital in, 90-100 
capita! accounting and, 154-56 
<;{ iHttnmunistn, 153—54 
L'sistom art!. *20 



Subject Index 



XXV 



Economic action («ont.) 
defined, 63-68 
, control-and-disposal, 67-68 

political action, 64^65 

primary orientation, 33, 66-67 

techniques, 65-66 
division of labor and, 1 14—37 
economic organization* for, 74-75 
economically oriented action and 

defined, 64 

modes, 69-71 
formation of organizations and, 201— 

2 . 
law and, 67-69, 75 
legal order and, 329 
mainspring of, 202-6 
market ana, 83-85, 144-50 
money and, 75-82 

accounting, 86-90 

formal and substantive validity of, 
178-80 

monetary policy, 180-93 

notes, 176-78 

restricted money, 1 74-76 

types of money, 166-74 
occupations and, 140-44 
of peasantry, 90 
political bodies and, 193-201 
price uniformities and, 30 
productivity of labor and, 150-53 
profit-malting and, 90-100, 164-66 
rationally oriented, 63-74, 343. 

1375-77, 138c 
rationality of 

formal, 85-86, 107-9; 111, 161- 
64, 183, 184 

Instrumental, a.-j, 26, "8-30, 41, 

154,339 
market regulation, 63- S4 
monetary accounting, 86-90 
substantive, 85-86, 305-9, iJ - 
140, 183, J&4 
religious ethics any, 6 1 4—23 
organized social groups and, 339- 

55, 356 
',?a<k and, 156-61 
utility concept in, 08-69 
Economic organizations iW^iiehatfi- 

vtrbande) 
■rlc"- "■*.-■ t 63 



Economic organization (coat.) 
law and 

private law, 328 

state law, 328-29 
as means of exchange, 76 
military discipline and, 1 1 55-56 
types of, 74-75 
Economic relationships, see Social re- 
lationships — economic 
Economy 

army organization and, 1 1 52, 1 1 54 
as autocephalous economic action, 63 
barter, ioo-i, 328, 673-74 
bourgeois rationalism and, 477-80 
bureaucracy and, 963-69, 970, 989- 
90 

compensation of officials; 963-64 

democratization, 986 
charisma and, 244-45, a J*~54 

hunting, 1 1 18 

irrationality, 1113 

routinization, 1 121-22, 1146 
in China, tee China— economy in 
the city and 

economic concept, 1 2 1 1- 1 5 

urban economy, 1218-20 
city-states and, 1349-68 

economic policies, 1349-54 

empire formation, 1363^68 
colkgiality and, 283-84 
convention sad, 3*7. 328 
&-s**unation in, 941-4? 

hierccratk, 1181-1204 
in Egypt, see Egypt — economy in 
k, England, see England — economy 

feudal 

'economic preconditions, 1090-92 
. s&bilization, 1094-97 
rransitii}^ to bureaucracy, i-?8&~ 
87, 1089 
f ' ■■ ccsehold-f, see Households — 

economy of 
ki-ezl comreunsst ';-g, 777 
hic:JCi:w-j ai:d 

tie*, \k-pmcm, 11 8 .'--96 
ia'ipset of t '.-sfoTmidonj 1 ; y-S— 
ij-oo 
j'.;d.iif. *J!Ci!<!.4iic tthog, 1190, izon- 
4 



XXVI 



INDBX 



Economy (cent.) 

law and. 641-900, 815 

codifications, 847 

contracts, 671-71, 720 

general relations, 311, 333-37 

influence, 334 

natural law, 868—73 

rights, 669 
legal order and, 3 1 2, 327. 328 

interference, 329 
mainspring of activity in, 203-6 
medieval plebeian city and, 1319-21, 

1326-35 
monasticism and, 1168-69 

crafts, 1 1 84 

land, 1182-83 
natural 

bureaucracy, 964, 969, 970 

defined, 100 

feudalization, 1094 

interest, 584 

monetary disorders, 1 1 04 

patrimonialism, 1032, 1038 
non-monetary, 105—6 
order by 

defined, 311 

ethnicity, 391 

formal rationality, 1 40 

political organzations, 193-94 
of patrician city, 1292-96 
patrimonialism and, 1016, 1032, 

1038, 1094-99, IIC >2-4 

armies, 1018— 19 

officials, 1037 

rationalization, 1047 

want satisfaction, 1 1 1 1 
planned 

formal rationality, 1 1 1 

want satisfaction, 109—13 
plebiscitary regimes and, 269—71 
political organizations and 

distribution of power among 
classes, 926-3 1 

financing, 194-99 

imperialism, 913-21 

political communities, 193—201, 
902 

private economic ac!ion : 199-101 

status stratification, 936-38 
religion and, 401, 405, 407, 4 !1 > 
413,482,483 



Economy (cont.') 

lawgiver, 442-43 

orderly cosmos, 430 

prophecy, 441 

salvation, 537 
religious ethics and, 576-90, 623- 
30 

Buddhism, 581, 612, 627-30 

Islam, 623-27, 630 

taboo, 432, 436, 481 

usury, 578, 583-89 
representation and, 296-97 
in Rome, see Rome — economy in 
social norms and, 38, 311 
socialism and, 18, 202-3; *** "^ 

Socialism 
state and, 336-37 

organization, 74, 75, 1453, 1454 
systems vs. policies in, 1 17-18 
techniques compared to, 65-66 
traditional authority and, 237-41 
war and, 70, 106 

See also Capitalism; Communism; 
Exchange; Market; Money 
Egypt, 468, 1202, 1367 
agriculture in, 148 
bureaucracy in, 964, 1401, 1402 

army, 980 

degree of bureaucratization, 971- 

73 

economic consequences, 990 

passive democratization, 986 

physical coercion, 967 

tax-farming, 966 
charisma in, and education, 1 145 
the city in 

burghers, 1230 

confraternity, 1261 

extra-urban associations, 1 244 

fortress, 1222, 1225, 1227 
division of labor in, 120, 124 
economy in, 113, 990 

household economy, 349, 381 

industry, 149 

natural economy, 584 

stabilization, 1096 

want satisfaction, 350, 353 
endowed marriage in, 373, 374 
feudal, 1045 

economic stabilization, 1096 

fiefs, 1076 



I 



Subject Index 



XXVlt 



Egypt 0»nO 

monopolies, 1097, 1103 

patrimonial officialdom, 1089, 
109a 

relationships, 1071, 1072 
hierocracy in 

the chinch, 1164 

economy, 1183 

monasticism, 1167 

rationalization, 1193 

reglementation of conduct, 1 166 

secular powers, 1160 

social preconditions, 11 77, 1179 
imperialism of, 914 
knightly war and, 128; 
law in 

codifications, 877 

contracts, 687, 690, 693, 714, 
7*6. 749 

legal norms, 756, 769 

rationalization, 820, 883 
military discipline in, 1152, 1155 
patrilineal descent in, 371 
patrimonial, 1011, 1044-47, 1050 

armies, 1015, 1016, 1018, 1154 

capitalist privilege, 1102 

decentralization, io;5 - 57 

disintegration, 1043, 1044 

liturgy, 1023 

officials, 1032, 1089, 1090 

recruitment, 228 

state, 1013, 1014 

traditional legitimacy, 1022 
rationalization in 

finances, 71 

hierocratic, 1193 
religion in, 416, 418 

congregations, 455 

debts, 586 

fixing norms, 460 

incomprehensible dogmas, 461 - 

intellectualism, 501, 508 

legal order, 430 

monotheism, 420, 449 

pastoral care, 466 

peasantry, 469 

taboo, 433 

theodicy, 519 
traditional authority in, 239 
Einverstandnhgemeinschaft, see Organ* 
iiations — consensual order in 



Ekbatana (Asia Minor), 1221 
England, 115, 1467 
agriculture in, 1 49 
army development in, 268 
bureaucracy in, 984, 1132-33 

degree of bureaucratization, 970- 
72, 984 

economic consequences, 989 

education, 999, 1001 

monarchy and, 295-96 

notables, 974 

office purchase, 966 

parliamentary investigation, 997 

passive democratization, 987 
capitalism in, 351, -395> ! 4°o 

bourgeoisie, 241, 1290 
charisma and 

kingship, 1148 

transformation, 1135, 1138 
the city in 

confraternity, r248, 1256—58 

fortress, 1222—24 

legal status of persons, 1240 
collegiahty in, 273-74, 3 76, 281 
constitution of, 1314 
democracy in, and representatives, 

11 28 
dower marriage in, 373 
economy in 

bureaucracy, 989 

industry, 152 

medieval plebeian city, 1352 

monopolies, 1098, 1099 

religion, 589 
feudal 

clerical officials, 259 

legitimation, 1080 

patrimonial officialdom, 1088-90 

relationships, 1073 

wealth, 1 1 00 

welfare of people, n 07 
Germany and, 1433-36 
gold standard and, 179, 184 
hierocracy in 

caesaropapism, 1161 

social preconditions, 1 1 80 
Italian burghers and, 1254 
Jameson raid and, 1433, 1434 
land ownership and, 163-64 
law in 

Canon law, 229 



XXVlt t 



INDEX 



England (cowf.) 

codifications, 839, 841, 842, 844, 

845. 853-55, 857. 865 
contemporary, 889-91 
contracts, 681, 683, 691, 692, 

696, 697, 701, 711, 713, 718, 

721-25. 728, 743, 747, 748 
empirical training, 785, 786, 788, 

803, 804 
formal, 270—71 
khadi justice, 976, 1116 
legal norms, 753, 754, 757, 761- 

€3, 766, 779, 78c- 
lega I. thought, 656 
natural law, 868 
notables, 649, 792—94, 798, 800, 

801, 876, 889 
" parliament, 646 
particularism, 896 
procedure, 654 
rationalization, 809, 814, 824 
restraint, 653 
tort, 650 
medieval plebeian city in, 1 30, 1 340 
autocephaly, 1327, 1328 
autonomous law, 1325 
economic policies, 1352 
political autonomy, 1324 
military discipline in, 1 1 55 
as nation, 922, 924 
pailia men t and 

caesaiist features, 1414, 141 5 
confidence of population, 1452, 

1453 

English world power, 1419-20 

law, 646 

leadership, 1428, 1459 

monarchy, 1406, 1407 

right to investigation, 997, 1423 
parties in, 1 396, 288 

bureaucratization, 1 132-33 

rule by notables, 1 1 30 
patrician city in, 1276-81 

economic character, 1294, 1296 

rule, 1266 
patrimonial, 1049 
collective liability, 1023-24 

decentralization, 1054, 1057, 1058 

devotion to authority, 1 108 

disintegration, ro42, 1043 



England (cowt.) 

medieval plebeian city, 1330, 

*33*. /333 

monopolies, 1098, 1099 

notables, 1059-64, 1068 

officials, 1026-30, 1033, 1036, 
1088 

traditional legitimacy, 1011 
political organization in 

imperialism, 913, 914, 917, 920 

power prestige, 912 
religion in 

intellectualism, 507, 514 

nobility, 473 

peasantry, 469 

salvation, 566 
traditional authority in, 239 
See also specific English cities 
Enterprises 

appropriation of managerial functions 

in, 136-37 
banks as profit-making, 159-61 
bureaucracy and 

degree of bureaucratization, 223, 

956, 1393-95 
means of management, 980 
calculation in, 91-92 
capital accounting as basis for, 96, 

charisma and, 11 18 
class situation and capitalist, 930 
concept of, 96 
defined, 52, 1 16-17 
division of labor and, 122 
expropriation and, 131 
financing of, 198—201 
formal rationality in, 161-64 
free trade and, 157 
households and 

compared, 163—64 

oiJbs, 383 
income and, 205 
joint stock, 380 
laissez-faire state and, 75 
law and 

adroinatrarioii, 644 

contracts, 719, 731 

legal authority, 221 
orientation of, 98-100 
patrimonialism and, 238 



Swiffect ln&~. 



•acjal group's an.5, 2-i 1 - 
stawsf industry a 1 ;, 3S1-84 
Epid.itftn'js (Greece), 1293 
V,' : .sf,n (Germany), 1216 
Estate type domination (VtSndweJie 
HemcJwfO, «e Domination — 
estate- type 
Esthetics 

intellectualism and values of ? 608 
Sociology compared to, 4 
Ethics 

capitalism vs. hierocratic, 1185-88 
defined, 36 
law and 

legal norms, 325 

natural law, 869 

rationalization, 810 
market, 635—40 
prophets and, 438-39. 444-5° 

exemplary and ethical, 447-50 

compared to teachers, 444-46 
religious 

art, 607-10 

asceticism, 541-44, 546 

bourgeois religiosity, 477-8° 

Buddhist, 426 

capitalism, 1198-1260 

caste, 435-37 

Confucian, 438, 462 

economic action, 6 1 4—23 

economy, 576-90, 612, 623-30 

faith, 564 

gods, 4 2 9~3 2 > S 20-11 

good works, 532—34 

grace, 560 

heaven and hell, 520-44 

intellectualism, 505, 506 

magical origin*, 43 2- 33 

motives, 36 

peasantry and rationalization, 469 

petty-bourgeoisie, 482-84 

politics, 590-602 

preaching, 464—67 

predestination, 575 

salvation, 437~39> S3 2 

self-perfection, 534-38 

sexuality, 6oi-7> 610, 611, 620 

transmigration of soul, 424-26 
Sociology compared to, 4 



vix.'ii.i '■»»!»! 

hhirocracy, i^St*-?* 
natuiii! Sum', 5y--6ct 

Ethnic groups, 3P5-99 

common st^mdty^nd 3 3 "-9 3 

conventions and, -si-s 

definition of group, 3815 

culture and, 393^ 395-98 

race membership and, 385-87, 398- 

99 

segregation of, 933~35 
utility of, 393-95 
Exchange 

budgetary management and, 90 

currency arid, 169 

defined, 72, 73 

of goods, defined, 327-28 

law and, 637 

law and commodity, 884 

legal order and, 329 

market and, 83 

means of, 75-80 

for profit-making, 9 1 

property and, 69, 75 

See aho Money 

Feudalism, 1070-noo 

administration in, 255-66, 966—67 
Alsace-Lorraine and, 396 
array and, 233 

bureaucratic army compared, 980— 
81 

patrimonial, 1018, 1019 
authority in 

limitation on authority, 27 1 

types of authority, 262-66 
charisma and, 250, 254 

selection of leader, 1 1 23 

succession, 1 126 

transformation, 1 137 
the city in 

confraternity, 1254 

medieval plebeian city, 1335 
collegiality in, 274-75 

collegiate bodies, 996, 998 
defined, 235 

division of powers in, 1082—85 
economy and, 1090-92 

stabilization, 1094-97 
fiefs and benefices in, 1073-77 



XXX 



INDEX 



Feudalism (cowt.) 
Egyptian, 1045 

economic stabilization, 1096 
fiefs, 1076 

monopolies, 1097, 1103 
'patrimonial officialdom, 1080, 

1090 
relationships, 1071, 1072 
fiscal policy of, 239 
hierocracy and social preconditions, 

1181 
holy wars and, 474 
in Islam, 625, 617 
law in 

codifications, 840-41 
contracts, 671, 700, 723 
restraint, 652 
legitimation of, 1078-81 
marriage and, 373 
military origin of, 1077-78 
occiden tal, • 2 5 5— 59 

appropriation, 255-56 
patrimonial, 264, 1070— 11 10 
armies, 1018, 1019 
church officials, 1035 
decentralization, 1058 
notables vs. local lords, 1059 
officials, 1035-37, 1088-90 
tradition, 1048-49 
plebiscitary leader and, 269 
relationships in, 1070-73 
transition to bureaucracy from, 

1085-87, 1089 
variants of, 259-62 

prebendal, 259-61 
wealth under, 1094-96, 1099— 1 102 
Fiefs, see Feudalism — fiefs and bene- 
fices in 
Florence (Italy), 376, 1363 

medieval plebeian, 1304-7, 1319, 

1336 
patrician, 1292, 1295, 1296 
property responsibility in, 378 
France, 338, 1059 
agriculture In, 149 
Alsace-Lorraine and, 395-96 
appropriation by pledging in, 235 
bureaucracy in, 978, 1087, 1400 
degree of bureaucratization, 969, 

984 
education, 999 



France (sent.*) 

office purchase, 966 
passive democratization, 985 
perpetuation, 989 

charisma in 

legitimation, 1158 
routinization, 1122 
transformation, 1135, 1138 

the citv in 

confraternity, 1251, 1256, 1257 
legal status of persons, 1240 

collegiality in, 276 

democracy in 
plebiscitary, 1 1 16 
representative, 1 1 28 

feudal 

division of powers, 1082-83 
fiefs ird benefices, 1074-76, 1077 
legitimation, J078, 1080 
patrimonial offialdom, 1088 
relationships, 1072, 1073 
transition to bureaucracy, 1087 

Germany and, 1435 

hierocracy in 

caesaropapism, ir6i ** 

economy, 1182, 1184 

ration alization, 1193 

social preconditions, 1178, 1180 

Italian burghers and, 1254 

law in 

anti-formalism, 889 

Civil Code, 865-66, 876-77 

codifications, 842, 845, 854, 855, 

860-61 
contracts, 692, 711, 712, 737, 

74 J- 747,748 
empirical training, 785 
legal norms, 768, 769, 772, 782- 

84 
notables, 875, 876 
parliaments, 646 
particularism, 896 
rationalization, 809, 826 
restraint, 653 
tribunals, 662 
medieval plebeian city in, 1 340 
autonomous law, 1325, 1326 
economic policies, 1352 
monarchy, 1320, 1327, 1328, 

1338-39 
political autonomy, 1323, 1324 



1 



Subject Index 



xxxt 



France (cost.) 

military discipline in, 1149, 1155 
monetary policy of, 184, 190-9J 
as nation, 923, 9 2 4 
parliaments in, 646, 1451, 1458 
parries in, 1461 v 

rule by notables, 1 1 30, 1 1 3 1 , 

1399 
patrimonial 

decentralization, 1038-40, 1052- 

54. i°56 
devotion to authority, 1 108 
disintegration, 1042, 1043 
officials, 1033-34, 1088 
medieval plebeian city, 1 33°. 

1331 
state, 1013 
trade, 1092 
political organization in 
imperialism, 920 
power prestige, 91 1 
reHgion in, and nobiliry, 473 
representatives in, 293 
Frankfurt (Germany), 1330, i4<4 
Freiburg (Germany), 1259, 1281 

Gemeinschaftett, see Social Groups 
Gemeinschaftshandeln, see Social ac- 
tion 
Generalizations, see Sociology— gener- 
alizations in 
Geneva (Switzerland), 444 
Genoa (Italy), 1 104, 1 362 
confraternity in, 1250, 125 2 
medieval plebeian, 1319, 1323 
patrician, 1292 
taxation in, 353 
Germany, 50, 115, u8, 1 381-1469 
administration by notables in, 291- 

92 
agriculture in, 149, 1217 
bureaucracy in, 956, 1393-I44 2 
army, 960 

collegiate bodies, 996 
degree of bureaucratization, 969, 

971 
economic consequences, 989 
education, 999, iooi, 1002 
foreign policy, 1431-42 
law, 977 
naivete of literati, 1399-1403 



Germany (co»t.) 

officials, 962, 965, 1003 

parties and leadership, 1004, 

1424-30, i457"59 
party politics and corporate state, 

1395-99 

politics, 1 393-95 
power basis, 1 4 1 7- 1 9 
ruler's dependence, 993, 994 
secrecy, 992 

supervision, 1422-23, i439 - 4 2 
capitalism in, 284 

origins, 1203 
charisma in 

legitimation, 1 1 59 
succession, 1125, 1:26 
transformation, 1134, !I 37 
the city in 

agriculture, 1217 

burghers, 1230 

confraternity, 1244, 1249, 1255- 

60 
extra-urban associations, 1246 
fortress, 1222, 1223 
legal status of persons, 1239, 124° 
size, 1 21 3 
collegiality in, 274, 276, 280, 281 

collegiate bodies, 996 
cult communities and tribes in, 393 
democracy in, 11 28, iz8o 

parliamentary government, 1442- 

63 
representation, 293 
division of labor in, 125, 128 
domination in, 949 
economic, 944-47 
language, 9jr, 955 
elections in, 1 1 29 
feudal, 1071 

division of powers, 1083, 1085 
economic stabilization, 1096 
fiefs and benefices, 1075 
legitimation, 1080 
wealth, 1 too, 1101 
economic relationships in (1918), 

348 
fraternities in, 445, 533 
Gothic lettering in, 345 
hierocracy in 

caesaropapism, 1161 
capitalism, 1194, H95 



INK£i 



rariortaii-/.at;.>n. 1193 
MoilairJ snd, 215 
jews fn, 623, 1203 
iift gsoups in, 367 
i*w in, 316, 316, 891, 977, 1464- 

academic training, 789, 804 

anti-formalism, 889, 899 

Civil Code, 337 

codifications, 84c, 851, 854, 856- 

60, 863-65, 877 
contracts, 678-80, $82, 683, 687, 

700, 712, 713, 717, 720-23, 

7*5, 7*7-29, 737, 738, 741, 

742, 746, 747, 752 
empiricaltraining, 788 
formal law, 270 
juries, S93 
khadi justice, 976 
legal norms, 753, 766, 767, 768- 

75, 781 
legal theory, 661 
modem, 887, 896-97 
notables, 794, 80 i, 808 
parliaments, 646, 662-63 
particularism, 880-81, 895, 896 
rationalization, 816, 819, 824, 

828, 830, 833 
tort, 650 
trials, 648, 662 
tribunals, 662 
legitimacy in (1918), 265 
liquor tax in (1909), 350, 351, 355 
medieval plebeian city in, 1331, 

1332, 1340 

autonomous law, 132; 

the church, 1334 

economic policies, 1352 

guilds, 1301, 1307 

political autonomy, 1323, 1324 

social classes, 1 347 
military discipline in, n 51 
monetary policy of, 1 84 

1871 currency reform, 174 
as nation, 923—26 

nationality, 395-98 
oikos and, 383 
parliaments in 



Germany (cuh*,) 

Bismarck's legacy , :i8<r--o;, ; r^S, 

J413, :4i 4 
constitution a! weakness, i*i 10- 16 
defended, 1381—8?, 
leaderi!":'?. (459-6* 
legal a^ct parliamentary safeguards, 

646, Ci62.'{$. '438-42 
moiiiticby, 140J— 7 
politics, 1407-10 
political parties, 1396-97 
right uf inquiry, 1415-31 
parliamentary government in, 1442- 

62 
parties in, see Parties — politics of 

German 
patriarchy in medieval, 372 
patrician city in, 1274 
economic character, 1292-93, 

1296 
kingship, 1283, 1284 
relative democracy, 1280 
tribes, 1 291 
patrimonial 
decentralization, 1051, 1054, 1C56 
devotion to authority, tto8 
disintegration, 1042 
medieval plebeian city, 1331, 

'332 
officials, 1026, 103; 

traditional legitimacy, 1021 
political organization in, 913, 914, 
916, 919,920, 940 

power prestige, 911,933 
religion in 

bourgeois piety, 476 

intellectualism, 515, 516 

mortality of gods, 427 

mysticism, 514 

peasant war (1524-25), 469 

workers, 519 
serfdom in, 127 
traditional authority in, 236 
Venice and, 1268 
works councils in, 46, 299 
unfree labor in, 382 
See also specific German cities 
Gerontocracy 

appropriation of administration in, - 
23-} 



1 

i 
•1! 



Subject Index 



XXXtll 



Gerontocracy (eo«t.) 
defined, 231 
economy and, 237-38 
immediate democracy and, 290 
GeschlechterheTTSchaft, see Patrimonial 

domination 
Geschlechterstaat, see Clan-state 
Gesellschaftshatuletn, see Rationally 

controlled action 
Glarui (Switzerland), 290 
Gods, see Religion — gods in 
Greece 

appropriation of means of production 

in, 134, 135 
charisma in 
education, 1144, 1145 
transformation, 1 137, 1 138 
the city in 

confraternity, 1 242 

economy, 1335 

extra-urban associations, 1 245, 

1246 
fortress, 1221, 1222, 1224 
democracy in 
democratization, 986-87, 1 3 1 1- 

15 

justice, 795 
elections in, 1 1 29 
ethnicity in, 389, 391, 393, 394 
feudal, 262 

defined, 1071 

games, 1 105-6 

status honor, 1105 
games in, 1105-6, 1367 
hienxracy in, 1 160 

caesaropapism, 11 76 

economy, 1 183 

social preconditions, 1 1 77, 1 t 78 
law in 

contracts, 676, 682, 717, 723, 

759. 741 

legal norms, 769, 773 

notables, 795, 799 

tort, 650 
lower classes in, 481, 1343, 1344, 

1346, 1347 
military discipline in, 1151, 1154 
mystery religions and 

congregations, 455 

mystagogues, 447 



Greece (jcont.~) 

philosophical ethicists, 445, 467 

prophets, 441-43 
nationality in, 398 
oikos and, 383 
patrician city in, 1289, 1291 

family-charisma, 1282 

kingship, 1284, 1285 
patrimonial 

duties, 1046 

trade, 1093, 11 04 
philosophy in, 445, 502, 503, 567 
plebiscitary regime in, 270 
religion in, 408-10 
-anti-plebeian, 508-9 

destiny, 431 

ethics, 438 

intellectualism, 500 

legal cider, 430 

lower classes, 481 

martial heroism, 539 

nobility, 473, 478 

orgies, 554 

universalism, 419 

war, 474 

women, 490 
slavery in, 127 
status in 

status honor, 937 

structure, 1354—56 
tax-farming in, 966 
tyrannis in, 444, 1315, 1316, 1317 
Sec also specific Greek cities 
Groups, see specific groups. For ex- 
ample: Ethnic groups; Kinship 
groups; Organized groups; So- 
cial groups 
Guilds 

army and Asian, 1262 
city, 1278-79 

craft, 1301, 1342-45, 1347, 1362 

medieval plebeian city, 1301-2, 
1304-7, 1325, 1336 

mutual protection, 1256-57 

patrician city opposed by, 1281- 
82 
collegiality in, 276, 277 
contractual law and, 716 
dispossession and English, 130 
immediate democracy in, 290 



XXXI V 



INDEX 



Guilds (cont.') 

in India, 149 

Islamic, 1233 

of lawyers, 786, 792-93 

market freedom and, 84 

monopolies as source of, 342, 344 

motives for closure of, 46 

of priests, 452 

social relationships in, 45 

use of force by, 55 

usury and merchant 587 

warrior, 1359—63 
Guinea (Africa), 845 

Hamburg (Germany), 1117, 1281, 
1460 
banco mark of, 160-61 
Hellas, see Greece 
Herrschaft, see Domination 
Heterocephalous organizations, see Or- 
ganizations— defi ned 
Hie sunt leones, 339-99, 1006-1149, 

1158-1371. 1375-1469 
Hie roc racy 
charisma and 

depersonalization of charisma, 

1 141 
legitimation, 1147 
defined, 54 

spiritual domination by, 56 
status acquired in, 306 
See also Church; Hierocratic domi- 
nation 
Hierocratic domination, 1158-1211 
caesaropapism and, 1159-63, 1192, 
1208, 1210 
compromises, 1173-76 
uses of monastkism, 1170-73 
defined, 1 1 59-60 
democracy and, 1204-10 

bourgeois, 1193-96 
economy and, 1181-1204 

capitalism, 1185-88, 1193-96 

development, 1181-96 

economic ethos of Judaism, 1198, 

1 200-4 
land, 1 181-83 
trading, r 183-85 
usury, 1 1 88-9 1 
legal authority in, 35, 221 
means of coercion in, 3 1 5 



Hierocratic domination (cont.) 
monasticism and, 1166-73, 1 201 

ambivalence, 1166-68 
Reformation and 

economic impact, 1 196-1200 
reglementarion of conduct by, 1164- 

66 
rationalization of, 1178, 1192-93 
social preconditions for, 1 177-81 
spiritual quality of, 56 
See also Hierocracy 
Hinduism 
art and, 609 
Brahma in, 411-12 
caste taboos in, 435, 436, 520 
charisma and, 251 
commercial stratum and, 478 
congregations in, 454 
cosmos in, 43 1 

disciple-master relations in, 445 
divine origin of, 552 
dogma in, 461-63 
economy and 

alms, 581 

truthfulness, 579 

usury, 583 
holy wars and, 474, 475 
intellectual ism in, 501-2, 505, 512, 

516 
law of, 409, 577, 618, 816-18, 833 

notables, 790-92, 794, 805 
monastic, 1 1 66 
monotheism in, 416 
pastoral care in, 465, 466 
peasantry and, 471 
politics and, 590, 596, 599 
prophets in, 442, 443 

disciples, 452 
rationalization of prayer by, 423 
reformers in, 446 
salvation in 

asceticism, 555 

Buddhism compared, 629 

eroticism, 571-72 

Judaic compared to Hindu, 493- 

99 

life-accounting, 533 
mysticism, 547, 553 
obedience, 561 
ritual, 530-31 
sects, 487, 488 



Subject Index 



XXXV 



Hinduism (cent.) 

self-perfection, 537, 53** 
systemization, 538, 539 
rewards, 527 
sexuality and, 571-72, 602, 604, 

606, 611 
theism and, 518, 519 
transmigration of souls in, 524-25 
History, Sociology compared to, 4, 29 
Holland 
capitalism and bourgeoisie in, 241 
confraternities in, 1254, 1255 
Germany and, 215 
language in, 951,955 
mercenaries in, 1 1 52 
military discipline in, 1 1 5 1 
monetary policy of, 184 
nationality in, 397 
religion in 

intellectuaHsm, 507, 514 
Protestantism, 478-79 
salvation, 566 
See dto specific Dutch cities 
Honorat'tores, see Notables 
Households 
accounting and, 379 
administration of, 90, 98, 109, 116, 

131-32,644 
appropriation by, 44, 46, 132, 136- 

37 

managerial functions, 136-37 
budgeting in 

defined, 87, 207 

development, 89 

exchange, 90 

memey, 86-90 
bureaucracy and, 957 
calculations in kind and, too 
charisma in, 246, 1 1 36 
communism of, 122, 154, 359-60, 

363. 374. '070 
disintegration of, 375-80 
division of labor in, 122-24, I2 " 
domination in, 950 
economy of 

exchange of surplus, 146 

origin, 131 

want satisfaction, 348-49 
enterprises compared to, 163-64 
expropriation of workers and, 142 



Households CeowO 
family and, 356-58 

charisma, 246 

communal relationships, 41, 44 

sexual relationships, 356-58 
income and, 205 
kin groups and, 365-68 
laissez-faire state and, 75 
law and, 643 

administration, 644 

contracts, 674, 708—9, 719, 747 

legal norms, 756, 777 

punishment, 650, 651 
lawful plundering of, 489 
maritime transportation and, 147 
money and, 82 
neighborhoods and, 360-63 
oikos and, 100, 155, 239 

as el ten alive development, 381- 

83 
the city, 1213— 15, 1220 
medieval plebeian city, 1331, 

1331 
patrimonial domination, 1010, 

1014 

patriarchal, 1006-10 

domestic communism, 1070 

patrimonialism and, 1010, 1014, 

1091, 1102 

officials, 1031-32 

origins, 1025-26 

political communities and, 901 

property and succession in, 370-74 

religion in, 412—13 

religious taboos, 434 

sexual relations in, 356-58, 363-65 

traditional authority in, 231 

Hungary, 274, 398 

Iceland, 780 

Ideal types, see Sociology — generaliza- 
tions in 
Ijma Qdsiiifui), 754, 820 
Income 
defined, 87 
sources of 
interest, 205 
property, 204-5 
India 

agriculture in, 148, 149 
appropriation by lease in, 234 



xxxvt 



INDEX 



India (cont.') 

Buddhism and inteUectualism in, 

618-29 
capitalism in, 20 1 
charisma and, 250, 251, 253 
the city in ' 

army, 1262 

burgheis, 1219, 1230 

commune, 1228 

confraternity, 1241-42, 1260, 
1266 

fortress, 1222, 1224, 1227 

legal status of persons, 1238 
craft guilds in, 1 344 
division of labor in, 123, 124-26 
feudal, 259-61 

relationships, 1073 

trade, 1094 
financing in, 195, 198 
hierocracy in 

caesaropapism, 1161, 1208 

monasticism, 1169—70 

secular powers, 1 160 

social preconditions, 1 177 
industry in, 149 
Islam influenced by, 626 
law in 

codifications, 840, 84; 

contracts, 678, 689, 693, 72; 

notables, 792 

rationalization, 815-18, 822, 824 

status of persons, 1238 

tort, 650 
military discipline in, 1 150 
monasticism in, 453, 1 169^-70 

Egging- '94 

communism, 154 
monetary policy of, 184, 191 
patrilineal descent in, 371 
patrimonial 

castes, 1023 

monopolies, 1 103 
politics in 

obedience, 594 

priests, 590 
religion in, 416, 440, 1123 

asceticism, 551 

caste taboos, 435, 436, 482 

commercial stratum, 478, 479 

congregations, 454, 455 

devotees, 453 



India (cowt.) 

dogmas, 458, 461 

gods, 411 

inteUectualism, 501-3, 508 

legal order, 430 

love, 571 

magic, 422, 457 

mystagogues, 447 

orgiastic types, 48 1 

peasantry, 469, 470 

petty-boutgeoisie, 484 

popular art, 488 

priesthood, 418, 419, 427, 590 

prophets, 438-39, 446, 448 

sacrifice, 424 

salvation, 445 

self-perfection, 535, 537 

sexuality, 602, 604, 606 

social concern, 443 

stylization of music, 407 

women, 490 

See also Brahmanism; Buddhism; 
Hinduism; Jainism; Lamaism 
representation in, 292 
sects in 

importance, 386 

pariah, 131, 493 
skilled trades and crafts in, 131, 152 
social relationships in, 45 
status honor in, 937 
traditional authority in, 236, 239 
Indonesia, 820, 907, 917 

taboos in, 432 
Innovation, theory of, 321-23 
Institutions, see Organizations — com- 
pulsory 
InteUectualism 

in Brahmanism, 501-41 5°8 

brotherly love and, 592-93 

in Buddhism, 502, 504-6, 512, 516, 

571,628-29 
Christianity and, 564 

early, 463, 510-12,622 

elite and masses, 513-15 

medieval, 513-15 

modem, 501 
esthetic values and, 608 
Jesus and, 632 
Judaism and, 501, 504, 505, 508- 

10, 512, 617 
law and favoring of, 893 



Subject hidex 



xxxvtt 



Imellectualism (cent.) 
lay, in religion, 456 
metaphysical needs and, 499 
patrimonialism and, 1036 
religious ethics and, 505, 506 
salvation religions and, 500-18 
escapism, 50 3-6 
faith, 567-68 
high-status groups, 501-3 
priests and monks, 500-2 
proletarian and petty-bourgeois, 
507-8 
secular salvation and, 5 1 5—1 7 
Intelligentsia 
dogma and, 462 
natural law and, 873 
peasantry and, 470, 471 
salvation religions and, 486-87, 507 
Interest 

capital and, 96-98 
natural economy and, 584 
as source of income, 205 
usury, 583-89 
Iraq, 820 
Iran, see Persia 
Ireland, 1151 
agriculture in, 148 
legal norms in, 768 
monasticism in, 1 1 68 
as nation, 922 
nationality, 395 
Islam 
art and, 609 
capitalism and, 109; 
charisma in 

communism, 1120 
legitimation, 11 59 
succession, 1 138 
the city in 

burghers, 1231 
clan ties, 1 244 
confraternity, 1241 
fortress, 1^24 
clerical officials in, 258 
congregations in, 455, 456 
dogma in, 426, 462, 463 
economy in, 623-27, 630, 1096 
charity, 581, 582 
ethics, 1185-88, 1 191 
hierocracy, 1182, 1183 



Islam (comi.) 

monopolistic tendencies, 344-45 
usury, 583 
quality of sexes in, 489 
reudal, 625, 627 

economic stabilization, 1096 
fiefs, 1076 
games, 1 1 06 
hierocracy in 

caesaropapism, 1174—75 
the church, 1 1 64 
economy, 1182, 1183 
monasticism, 1166 
rationalization, 1192, 1193 
( secular powers, 1 1 60 

social preconditions, 1 179 
holy wars and, 473~75 

aggrandizement and spoils, 624 
religious infidelity, 473 
intellectualism in, 501, 509, 512 
law in, 577, 818-22, 824, 829, 830 
codifications, 840 
contracts, 691, 696, 714, 726 
inheritance, 815 
khadi justice, 1115,1116 
legal norms, 754. 75^-57. 777, 

778 
transmitted by notables, 790, 791, 
794. 799. 800 
monotheism in, 416, 420, 518, 522 
patrimonialism in 

decentralization, 1053-54 
disintegration, 1043, 1044 
notables, 1067 
politics and, 596, 599 

subjugation of unbelievers, 594 
popularized, 488 
prophets in 
comrades, 452 
pastoral care, 465, 467 
salvation in, 564, 625 
dervishes, 555-56 
faith, 565, 568-70 
predestination, 573~75 
sexuality and, 604, 606, 6r 1 
social classes in 
lower, 481 
merchants, 479, 630 
taboo norms in, 435 
traditional authority in, 239 



XXXVtt I 



INDEX 



Islam (cont.~) 

unfree labor and, 135 
See aho spectre Islamic cities 
Ismaros (Greece), 1283 
Israel, 247 

charismatic legitimation in, 1 159 
the city in 

burghers, 1230 

clans, 1230, 1231 

commune, 1228 

confraternity, 1247, 1249 

fortress, 1222, 1223 

legal status of persons, 1 240 
craft guilds in, j 344 
ethnicity in, 389, 393 
hierocracy in and secular powers in, 

1 1 60, 1 163 
legal norms in, 769 
religion in, 412, 416 

dogma, 462 

boly war, 473 

intellectualism, 501, 508 

magic, 457 

nobility, 491 

peasantry, 468—71 

Pharaoh, 450 

prophets, 437, 440, 443 

resentment, 494-95 

sacrifice, 423 

See also Judaism 
tyrannis in, 1316 
ItaU/,830, 1433 
agriculture in, 149 
capitalism in, 1400 
- the city in 

confraternity, 1251-57, 1260 

fortress, 1223 

legal status of persons, 1 240 
games and, 1368 
hierocracy in, 1 1 60 

caesaropapism, 1 1 76 

social preconditions, 1177 
household communism in, 359 
law in 

codifications, 842, 877 

contracts, 683, 691, 697, 741 

notables, 793. 794. 806, 875 

status of persons, 1 240 
medieval plebeian city in 

administration by podesta, 442, 
1274-76, 1301, 1307, 1318 



Italy (ecu**.) 

autocephaly, 1326 

autonomous law, 1325 

character of the popolo, 1302-3 

distribution of power, 1304-7 

economic policies, 1351, 1354 

political autonomy, 1323-24 

property, 1362 

Roman pUbs compared with pop- 
olo of, 1308, 1309 

signoria, 1317-22 

Spartan ephors, 1309-u, 1337 

status structure, 1355 
mysticism in, 514 
as nation, 924 
parliament in, 1458 
parties in, 286, 288 

rule by notables, 1 1 30 
patrimonial 

decentralization, 1054 

mercenaries, 10 17 

notables, 1063 

officials, 1026 
patrician city in, 1267—76 

economic character, 1292, 1296 

English compared with Italian, 
T277, 1278, 1 28 1 

rule, 1266 
property responsibility in, 378 
Samnite wars in, 1285 
See also specific Italian cities 

Jahveh, see Yahweh 
Jain ism, 502, 551, 594 

brotherly love and, 581 
Japan, 629, 1468 

charisma and, 248, 250, 251, 254 

transformation, 1136 

want satisfaction, 1120 
the city in 

burghers, 1229 

fortress, 1227 
codifications of law in, 877 
collegiality in, 282 
currency in, 171 
feudal, 258, 259 

fiefs and benefices, 1074-76 

games, 1 106 

legitimation, 1078, ro8i 

patrimonial officialdom, 1088 

relationships, 1072, 1073 



Subject Index 



xxxtx 



Japan (cowt.) 

status honor, 1 105 
trade, 1094 
wealth, 1 100, 1101 
Germany and, 1434 
hierocracy in 

caesaropapism, ii6i, 1208 
rationalization, 1 193 
social preconditions, 1177, 1180 
military discipline in, 1 154 
as nation, 926 
patrimonial 

collective liability, 1023-24 
decentralization, 1052, 1053 
disintegration, 1042-43 
officials, 1028, 1088 
religion in, 413, 429 
traditional authority in, 236 
Jehovah, see Yahweh 
Jerusalem, 420, 427, 443, 455, 510, 
581, 617, 632, 1 180, 1187, 
1245, 1 316 
Joseph ite movement, 513, n68 
Judaism, 819 

ait and, 609, 610 
capitalism and, 611-15 
congregations in, 456 
dogma in, 462 
economy and 
charity, 581, 582 
economic action, 614—23 
ethics, 1185, 1188, 1191 
ethos, 1 198, 1200-4 
usury, 583 
vengeance, 580 
equality of sexes in, 489 
excommunication in, 1204—5 
fixing scriptures of, 459 
hierocratic 

caesaropapism, 1174 
the church, 1 164 
secular powers, 1160 
social preconditions, 1177, n8o 
Hinduism compared to, 493~99 
intellectualism in, 501, 504, 505, 

508-10, 512, 617 
Islam compared to, 626 
law in, 409, 410, 578, 693, 823-29, 
836, 837 
codifications, 849, 850, 851 



Judaism (cont.) 
Jesus, 631-33 
notables, 791 

rationalization of fears, 617-19, 
621 
monasricism and, 1167 
monotheism of, 416, 420, 518 
pastoral care in, 465 
of peasantry, 469 
politics and, 591, 594 
physical infirmities and popular, 492 
prophetic movements in, 442 
rationalism of, 6r5~23 
religious infidelity and, 473 
rewards in, 527 
royal protection of, 455 
salvation in, 564 
confession, 562 
faith, 570 

life-accounting 533 
ritual, 532 
sexuality and, 605, 606, 61 1, 620 
social classes and 
lower, 481, 488 
merchants, 479 
suffering in, 521 
taboos in, 46 1 
See also Yahweh 
Justice 

administration of, 645-47, 7 J 7> 7 2 ^> 

764. 77o, 775. 813, 814, 817, 

823. 841, 844-48, 849. 858, 

874, 880, 882 

folk, 883 

Hindu sacred and secular law, 

791-92 
modern, y 78-79 

notables, 794-96, 798, 799, 8ci- 
2, 814 
dpfachment of modem, 600 
cx';i itory, 649 
folk 

administration, 88 3 
codifications, 839, 840, 846 
legal norms, 768-75 
Greek democracy and, 795 
khadi, 976-78 

bureaucracy and, 980 
capitalism, 1395 
charismatic, 1115-16 



xl 



INDEX 



Justice (cowt.) 

codifications, 845 

defined, 795, 806 

jury, 892 

justices of the peace, 891, 1061 

rationalization, 813, 814, 823 
lay 

modern law, 892-95 

modern legal profession, 892-95 
lynch, 764, 1308 - 
origins of popular, 809 
rationalization of, 812-14, 823 
social classes and, 886, 894 

Khadi (kadi) justice, see Justice — khadi 
Kingship and charisma, 243, 1141-43 
Kinship groups 
in China, 145, 380 
ethnic groups compared to, 389, 390 
generalizations on, 370-71 
households and, 365-68 
instability of Arab, 909 
law and 

adjudication, 645 

contracts, 675, 677-78, 726, 727 
legal norms, 760 
rationalization, 809, 81 1, 812 
patrimonialism and, 1022 
political communities and, 901 
protection of property by, 336 
religion in, 412—13 
Christianity, 472 
religious taboos, 434 
Kingston (England), 723 
Kuliurgemeinichaft, see Ethnic groups 
— culture and 

Laboi 

'4&r. imstT3tJon of, 1 14 

expropriation, 137—40 
capitalism and, 165-66 
calculahiliry of productivity of, 150- 

53 

compulsory 

Chinese, 1047 

Egyptian, 1044-45 

patrimonial, 1013, 1282 
contractual law and, 692—93 
expenditure of, 66 
formal rationality of, 162-63 



Labor (cowt.) 

hierocracy and just price for, 1 188 
market 

class situation, 927-28, 930—31 

productivity, 150—53 

unfree, 382 
natural law and, 871-72 
patrimonialism and voluntary, 362 
planned economy and, no 
political organizations and 

imperialism, 920 

power, 928 
status groups and physical, 936 
technological level and, 70 
traditionalism in, 71 
unfree, 155, 326, 382, 383 

city-states, 1342-43 
See also Division of Labor 
Labor unions, see Trade Unions 
Lamaism, 463, 502, 555, 629 
as church, n 64 
hierocratic 

caesaropapism, 1174, 1176, 1192 

monasticism, 1 169, 1 170, 1171, 

1 173 

secular powers, 1160, 1210 

social preconditions, 1 1 8 1 
clerical officials in, 258 
Law, 641-900 

action»oriented by, defined, 29 

analogy and, 407 

bureaucracy and, 976 ' 

capitalism, 977, 978, 1464-65 

depersonalization, 998 
charisma and, 243, r 1 1 5-16 
the city and 

commune, 1226, 1227 

consequences of confratemization, 
1248-51 

real estate, 1237 

status of persons, 1237-41 
classification by, 338 
codifications of, 839-65, 877 

patriarchalism, 844—48, 852, 853, 
856 

patrimonialism, 853, 856—59 
contracts and, 666-752 

actionable, 681-83 

associational, 705-29 

freedom in, 668-81 

individual freedom in, 729-31 



Subject Index 



xh 



Law (conC) 

limitation of freedom in, 683-94 

special laws, 694-704 
constitution and, 330 
convention and, 319-27, 337 
custom and, 319-25- 332, 337 
customary, 753"S4 
dogmatics of, 337 
economic action and, 67-69, 75 
economy and 

general relations, 333-37 

market regulations, 83 

limitations, 331 

private economic relations, 49 

sacred law, 1185-86 
exchange and, 637 
formal, 335 

development, 270-71 
free-law movement and, 330 
households and, 379, 380, 489 
ipna. (iisliflw), 754, 820 
v joint property, 373 

legal norms and, see Norms — legal 
legitimation of order hy, 33-36 
lynch, 764, 1308 
medieval plebeian city and, 1308-9 

autonomous law, 1325—26 
a modern, 880-900 

anti-fonnalistic, 882-89, 899 

lay justice, 892-95 

particularism, 880—82, 895, 896 
by notables, 648-49, 784—808, 823, 

875, 977 

academic training, 789-9?, 804 

codifications, 853 

contracts, 720 

empirical training, 785-88 

influence of Roman law, 792-802 

legal norms, 766, 773 

patrirnonialism, 876 

traditionalism, 882 
patriarchalitm and, 372 
patrician city and, 1276-78 
plebiscitary leader and, 269 
political parties and, 1 396-97 
positivism fn, 875-76 
private 

economic organizations, 328 

exchange, 329 
rationalization of, 809-38 

substantive, 792, 8r5~i6 



Law (eowt.) 

as rule for conduct, 332 
religion and 

obedience, 432 

prophet and lawgiver, 442—44 
rights and, 666-752 

legal propositions, 666—68 
Roman, see Rome — law in 
sacred, 409, 577,618, 713-15 

academic training, 789-92 

Canon, 229, 828-31, 838, 852 

cautelary jurisprudence, 4ro, 421, 
796-97 

Chinese, 818 

economy and, rr85-86 

Hindu, 8r6-i8, 833 

Islamic, 8r8-22, 824, 829, 830 

Judaic, 631-33, 693, 823-28, 
829, 836, 837 

substantive rationalization, 792, 
8r5-i6 

Zoroastrian, 822-23 
Sociology and, 325 

concept, 311-19 
substantive, '64 1 -66 

administration, 644-47 

categories of legal thought, 654- 

imperium, 651—52 

private and criminal, 647—49 

private and public, 641—45, 661, 

663 
procedure, 653-54 
restraints on power, 652—53 
tort and crime, 649-51 

territorial, 1312-14 

territorial imposition and criminal, 

5* 

in traditional authority, 227, 230 

unfree labor and, 326 

urban, 472 

See also Natural law 
Lawyers, see Law — by notables 
Lebanon, 1142 
Legal authority 

belief in, and order, 37 

bureaucracy in, 218-26 

defined, 2r5-i6 

domination and bases for, 2r?-26, 
95*-J4 

of hierocracy, 221 



xl 



II 



INDEX 



Legal authority (contS) 

other authorities combined with, 

262—66 
pure type of, 217—23 

administration, 218—19 

impersonal order, 217-18 
Legal order 

convention and; 312, 314 
defined, 311, 317 
economy and, 312, 327, 328 

coercion, 3i3 L *4> 337 

consensual action and, 330-31 

exchange, 329 

social groups, 334 

tradition, 327 

Sociology and, 326 
gods as guardians of, 430 
ideal type of, 312 
monopolies and, 342 
norms of behavior and, 312-13 
power distribution and structure of, 

926-27 
state and, 904 
See also Legal authority 
-Legitimate authority, sec Legal author- 

Legitimate domination, 212-99 
basis for, 212-15 
charismatic authority as, 241-45 
routinization, 246—54 
transformation, 266-71 
collegiality and, 271-82 
democracy and, 289-99 
feudalism as, 255-66 
functional division of powers and, 

182-83 
legal authority as, 217-26, 952-54; 

see also Legal authority 
parties and, 284—88 
property and, 2 1 3 
pure types of, 215-16 
traditional authority as, 227-41; see 
also Traditional authority 
Legitimate order, 31—38, 60 
bases for legitimacy of, 36-38 
dissolution of, 32 
in social relationships, 30 
types of, 33-36; see also Convention 
validity of, denned, 3 1 
Liechtenstein, nationality in, 397 
Liverpool (England), 1331, 1339 



Lodi (Italy), 1302, 1318 
Logic, Sociology compared to, 4 
London (England), 471, 1217, 1278, 

1279, "94. 1325 
Lucca (Italy), 1302 
Lutheranism, see Protestantism 
Luxemburg, 397, 924 
Lydia (western Asia Minor), 1344 

Macedonia, 1154 

Magdeburg (Germany), 1255, 1259 

Magic 

Buddhism and, 628-29 

charisma and, 241, 242, 247, 248, 

1134, 1136-37 
Confucianism and, 579 
daily life and, 531 
elimination of, 630 
ethics and, 437-39 
formation of political organizations 

and, 907, 909-10 
intellectualism and, 506 
law and 
adjudication, 758, 761-62, 765— 

66, 770 
contracts, 672 
criminal law, 647, 648, 650 
discovery of, 706 
formalism, 811, 812 
influence of magic, 815, 817, 818 
peasantry and, 482, 483 
rebirth and, 529 * 

religion and, 432-39, 563 
coercion vs. sacrifice, 422-24 
control of supernatural, 432 
disposal of dead, 405 
as early religion, 400-8 
holy wars, 591 
prayer, 411 
preaching and pastoral care, 464, 

466, 467 
priests vs. magicians, 425-27 
prophets, 440-41, 456-57 
religious ethics, 432-35 
sanctification by, 535-36 
Mahavira, 453 
Mahdism, 574, 596,625, 1179 

monasticism and, 11 67 
Malaya, 817 

Manchester (England), 1331, 1339 
Marduk (Babylonian god), 1 1 59 



Subject Index 



I 



xt-itt 



Market economy 

appropriation and, 111-13, 144-50 
in the city, 1213-15, 1223-26 
colonials and, 289 
commercial classes and, 306 
competition and, 43 
consequences of, 337 
defined, 67, 82 
delimitations of, 1379-80 
division of labor and, 1 22—23 
domination by, 943—46 
economic action and, 202 
interdependence in, 335 
interests, and pacification of popula- 
tion, 908-9 
law and 

contracts, 698-99, 730-31 
monopolization, 336 
labor and 
class situation, 927—28, 930, 931 
productivity, 150—53 
1 unfree labor, 382 
market relations and, 676, 735 
in medieval plebeian city, 1328—31 
open social relationships and, 44-45 
patriraonialism and, 1091 
regulation and, 82-85 
source of crises in modem, 1 40 
want satisfaction and, 109-10, 349 
Marktgemeiwckaft (market relations), 
6 7 6 . 73 Si see <*ko Market econ- 
omy 
Marxism, 516, 777, 1091 

natural law and, 872, 874 
Massenhandeln, see Collective action 
Matriarchy 
defined, 368 
marriage and, 372 
men's houses and 

maternal groupings, 357 
Spartan maternal households, 371 
Meaning, 4-5, 7, 57; see also Sociology 
Mecca (Arabia), 444, 473, 6*25, 693, 
1016, 1241, 1273, 1296 
confraternity in, 1251—52 
as pre-communal patrician city, 
"31-34 
Medina (Arabia), 444, 624, 625, 820 
Men's houses, 1287 
charismatic education and, 1 144 
contractual law and, 671 



Men's houses (eorti.) 
Greek and Roman, 262 
maternal groupings and, 357 
military discipline and, 1 153 
sexual relationships and, 364 
Spartan, and maternal households, 

37' 
warriors as basis for, 906—7 
Mercenaries 

army of, 596, 1364 

financing of, 198 

in Holland, 1 1 52 

in Italy, 259, 1318—20 

patrimonial use of, 1017—18, 1021, 

1046 
in Switzerland, 908 
Mestnichestvo, 985, 1066-67 
Mexico, 741, 877 

Middle classes, see Bourgeoisie; Petty- 
bourgeoisie 
Migration, economic systems and, 70 
Milan (Italy), 1252, 1302, 1318 
Mithraism, 485, 505, 510 
masculine orientation of, 490 
as salvation religion, 475, 476 
Modena (Italy), 1 3 1 8 
Mohammedanism, see Islam 
Monasticism 
begging and, 194 

Buddhist, 456, 461, 551, 629, 
1 i 23-14 
supernatural powers, 1165-66 
Byzantine, 588 

art, 609 
Christian, 502, 555, 1201 
communism in, 1 54 
economy and 
coolies, 586 
crafts, 1 184 
land, 1182-83 
stabilization, 1096 
exclusiveness of, 1205 
hierocracy and 

achievements, r 168-70 
ambivalence, 1166-68 
uses of monasticism, 1 170—73 
rationalization of, 1 168-70 
in India, 453 
intellectualism and, 501 
Islamic, 569, 624 
of monk and warrior, 1 1 53 



xliv 



INDEX 



Monastfcism (amt) 
occidental, 513 

patrimonial officials sad, 1034 
religiosity in, 481 
Russian, $17 

salvation influenced by, 64, $39-40 
sexuality and, 603-6 
Monetary accounting, see Accounting 

— monetary 
Money 

banks and, 150—61 

budgetary management and, 86-90 

as bureaucratic compensation, 220, 

222, 229, 963-64 
calculation and 

defined, 8r 

formal rationality, 107-9 

in kind, 100-7" 
capital market and, 95 
charisma and, 250-51 
charts] as, 336 

defined, 79 
consequences of use of, 80-82, 207 
currency, 166-74 

defined, 167 

exchange possibility, 169 

metals, 170—74 
defined, 75—77 

development of capitalism and, 147 
elections and power of, 1 1 29 
factors in, 77-79 
formal and • substantive validity of, 

178-80 
impersonality of, 635-40 
income and, 205 
market situation and, 83 
mercenaries and, 10 17 
monetary policy and, 160, 174, 180- 

93 
monopoly on coining, 1 103-4 
national wealth and, 105 
natural economy and disorders in, 

1104 
natural law and, 869—70 
notes, 176-78 

patrimonial economy and, 1 104 
political bodies and, 194-99 
power of, 926, 928 
production of goods and, 93-94 
religion and 



Money («mt.) 
Jews, 612-13 
money as goal, 584 
payment to the dead, 406 
usury, 583 
resources of, and capitalism, 1 13 
restricted, 174-76 
as social action, 636 
"state theory" of, 184-93 
tax-farming, and, 965, 966, 1045—46 
workers and, 96 
Mongolia, 1160, 1170 
bureaucracy in, 956 
caesaropapism, 11 76 
Monopoly 

in capitalism, 639, 1 102 
group structure and, 344-48 
Morocco, 846, 1431, 1435, J437 
Moscow (Russia), 1174, 1215 

slavery in, 1342 
Motivation, 8-1 r, 18; see also Sociol- 
ogy 
Munster (Germany), 482, 1301 

Mycenae (Greece), 1282 

Nation, 395-98 
defined, 395, 921-26 
language groups and, 395-98 

delimitations of, 1379 
wealth of, and money, 105 
Natural law, 865-80 
contract theory and, 691 
ethics and 

religious ethics, 469 
vocational, 601 
French Civil Code and, 865-^6, 

876-77 
ideology and class relations, 867, 

871-73 
as normative standard, 866-67, 869 
origins of modem, 868 
peasantry and, 871 
public law and, 653 
sacred law and, 810, 828 
significance of, 873-75 
transformation into substantive law, 

868-71 
value-rationality in, 37 
as Western, 883 
Naturalism, 404—8 



Subject Index 



xlv 



Neighborhood groups 
as brotherhood, 360-63 

love, 580 
contractual law and, 677 
domination in, 050 
patrimonialism and collective lia- 
bility, 1023-24 
political communities and, 901 
New York (US.), 945-46 
Nobility 

clientage and, 1 365-66 
codifications of law and, 840 
commercial patriciate and, 477-78; 

see also Patriciate 
hierocracy and, 1 160 

capitalism, 1 194 
monasteries for, 1034 
in patrician city, 1239-40, 1266- 

1300; see also Patrician city 
patrimonial, 1064-68 
English nobility, 1059 
Russian, 1065-67 
in political parties, 1 1 30 
Reformation and, 1196, 11 97 
religion and, 1180 
innovators, 502-3 
iireligion vs. faith, 472-76 
legitimation of self-esteem by, 
490-91 
Roman, 472 
armies, ior;, 1072 
charismatic succession, 1139 
tUcfassi, 1341 
orgies, 554 
Russian 

destruction of, 985 
patrimonial, 1065-67 
salvation religions and decline of, 

503-6 
sexual relationships of, 690; 743 
wealth and, 581 
Non-legitimate domination, 1212, 

1368; see also City 
Normans, see England — feudal 
Normative authority, role of ideas 

about, 14 
Norms 

abstract, 978—79 
of behavior, 312-13 

natural law, 866-67, 869 
regulation of conduct, 218 



Norms (cowt.) 
charismatic, 250 
feudal, 1082, 1084 

legal 35. Vi-it, 3*3, 753-84 
application of, 338 
convention, 325-26, 332 
custom, 332-33 
distortion, 336 
emergence of new, 753-54 
ethics, 325 
imposed, 760—65 
influence of magic, 8 1 5 
judge-made laws, 758-60 
lawmaking and lawfinding, 653- 

'54 

law prophets and folk justice, 

768-75 

law specialists' role, 775—76 

legal propositions, 667 

legislation, 765-68 

legitimate authority, 954 

nationalization, 904 

political authority, 332-33 

private and public law, 641-42 

role of practices, 754-58 

the state, 998 

status, 697-98 

traditionalism, 327 

traditional authority, 230-32 

validity, 326, 333 

value-rationality, 217 
magical, 432, 815 
market, 637, 639 
natural, 321 
patriarchal, 1006 
religious 

ambivalence to new problems, 578 

taboo, 432-37 
sacred,'46o,8i5, 816 
social, and economy, 3 1 1—38 
Norway, 769, 910, 91 1 
Notables (feonororiores), 264, 1048 
administration by, 290-92, 1 399- 
1400 

city-states, 968 

justice, 794-96, 798, 799, 801-2, 
814 

law, 823, 977 
bureaucracy compared to, 673—80, 
97*. 974. 984, 988, 990, 996, 
997, 1 00 1 



.1 



xivt 



INDEX 



Notables (.honormk.i-es') (cc**.) 
indues, 1225, (250 

confraternity, 1*53 
domination by, 5 $--52 
law fey, 648-49- 7?4"3oo, 875, 977 

ccdiScatioiis, ??3 

contracts, 72c 

legal norms, 766, 773 

ptrimoniafism, 876 

Persia, 823 

traditionalism, 882 
parliaments and, 297 
party control by, 1 1 30-33 
patriarchalism arid, 1009-10 
patrimonialism and, 876, 1,025, 
1058-^8, 1090, 1091, 1107—8 

armies, 1018-19 

decentralization, 1040, 1056, 1058 

local lords vs. notables, 1059—64 

nobility, 1064-68 
Sea also Gerontocracy; Patriciate 
Novgorod (Russia), 1293 

Occupations 

charisma in specialized, 483 
defined, 140 
status croups and, 306 
types of structure of, 140-44 
Office, see Bureaucracy 
Oikos, see Households— ©ifcos as 
Open social relationships, see Social 

rela tionshtps — open 
Order, see Legal order; Legitimate 

order 
Orders, see Monastkism 
Organizations (yerh&nde'), 48-56 
administrative order in, 5 1-52 
defined, 51 

organized action, 49, 51-52 
appropriation by, 131—32 
class, 302 

coercive powers of, 3 1 8 
consensual order in, 50 
defined, 1378-^0 
legal order and, 313, 330-31 
■special laws and, 695 
compulsory, defined, 52-53, 1380 
defined, 48-50, 61, 264 
autocephalous, 49-50 
authority, 48-49 
heterccephalous, 49-50 



Organizations (Verbitnde) (coat.) 
lor domination, 720-21 
economic factors and formation of, 

201—2 
formal, defined, 52 
forms of communism as, 1 50 
imposed order and, 50-51 
law and, 3 1 3 

contracts, 705-8, 718-20, 723 
regulative order and, defined, 51 
value-rationality and, 49 
voluntary association as, defined, 52, 

53 
See also specific tyfes of organiza- 
tions 
Organized action (Verbandshandeln'), 
see Organizations — administra- 
tive «rder in 
Organized groups 

economic relations of, 339-55 
open and closed, 341-43 
structures, 344-47 
want satisfaction, 348-54, 356 
special laws and, 69;, 744 
Orgies 

religion and, 481 
association, 402-3 
chastity vs. orgy, 601-4 
dervish, 556 
in Greece, 554 
soteriological, 486 
of peasantry, 505 , 

salvation and, 535-39 
Osaka (Japan), 1 100 
Ostende (Belgium), 348 

Palestine, see Israel 
Paraguay, 154- 1013, H49 
Paris (France), 1217 
Parliaments 

bureaucracy and 
parliamentary investigation, 992- 

93.997798, 1416-31 
power position, 99 1 
capitalism and, 296—97 
collegiality and, 275^76 
election to, and recall of representa- 
tives, 1 1 28 
German 

Bismarck's legacy, 1385-92 
constitunonarweakness, 141c— 16 



Subject Index 



lv 



t i 



Parliaments (cowt.) 

defended, 1381-83 

leadership, 1459-62 

legal and parliamentary safe- 
guards, 1438—42 

monarchy, 1405-7 

politics, 1407-10 

political parties, 1396-97 

right of inquiry, 1416— 31 
government by, in Germany, 1442- 

62 
law and 

codifications, 844 

English legal norms, 766-67 

as judicial body, 646, 662—63 

notables, 794 
patrician city and 

taxation, 1279 

urban interests, 1280 
patrimonialism and 

decentralization, 1038-39 

monopolies, 1098 

officials, 1034. 1036 
proletariat and; 296-97 
representatives in, 293-95 
Parma (Italy), 1318 
Parties (political) 
ballots and, 298 
bureaucracy and 

consequences of democratization, 
984-85 

degree of bureaucratization, 297, 

97i 

economic consequences, 989 

extension of tasks, 969 

officials, 960, 961 

politics of German, 1408-16 
characteristics of, 284-88 
control by, 1 129-33 

elections, n 27, 1128, it3o 
defined, 284-85 
ideology in American, 345-46 
in medieval plebeian city, 1 304, 

1318-19 
in political organizations 

class situation, 931 

power, 927 
politics of German, 286-88, ii3r, 
1133, 1 381-1469 

Bismarck's legacy, 1385-92 



Parties (political) (co«f.) ' 
bureaucracy, 1408-16 
democratization, 1443-49 
importance, 1395-99 
monarchy, 1405-7 
political leadership, 142 ; -p, 

1 457-59 
social action of, 938-39 
Patriarchal domination, 943, 945, 
1006-10 
bureaucratic domination compared 

to, 1006—7 
notables and, 1009-10 
Patriarchal ism 

appropriation of admin is ration in, 

_ 2 34 
charisma and 

compared, 1113, 1115, 1117, 
1 1 1 8 

kingship, 1 142 

opposed, 244 

selection of leader, 1 123 
m clans, 10 14 
defined, 231 
economy and, 237-39, 240 

charity, 582 

priesthood, 585 
feudalism and status honor in, 1072 
in households, 1070 
immediate democracy and, 290 
law and, 372 

authority, 645 

codifications, 844-48, 852, 853, 
856 

contracts, 688, 689, 696, 719 

legal norms, 777, 778 

legitimation, 1106-7 

rationalization, 812, 813, 817 
manorial administration and, 372 
religion and, 413 
representation and, 292 
sexual relationships and, 386 
socialist, 931 

See aUo Patriarchal domination; 
Patrimonialism 
Patrician city 

ancient, 1282-90 

ancient compared with medieval, 

1290-96, 1339-72 
medieval, 1267-82 



xlv 



lit 



INDEX 



Patrician city (cow*.) 
rule in 
destruction of, 1301-2, 1304-5, 

1307. i3«9r 13". 1313-17 
nature of, 1266-67 
Patriciate, 554 
city and, 1229, 1230 
clans, 1230-31 
feudal, 1 08 1 
precoinmuna], 1231-34 
status, 1239-40 
See aho Patrician city 
commercial, and religion, 477-78 
fiscal policy and, 239 
Patrimonial domination, 236-37, roio— 
69 
armies under, 1015-20, 1046, 11 54 
decentralization, j 038-41, 1051-59 
defense* against disintegration in, 

1042-44 
historical examples of, 1044-51 
notables, 1059-68 
officials, 1025-38 
officials vs. bureaucratic official- 
dom, 1028-31 
satisfaction of public wants and, 

1022-25 
traditional legitimation of, 1020-22 
Patrimonialism, 643, 1366-67 
appropriation of administration in, 

234 
African, 228 

bureaucracy and, 221, 229 
compared, 958, 960, 964, 979— 

80, 1028—31 
continuity, mi 
education, 1001 
medieval plebeian dry, 1325-28, 

1330. 1331. 1333. 1334 

capitalism and, 238, 240 

charisma and 

compared, 1 1 14, 1 122 
opposed, 244, 250, 251, 254 
succession, 1126, 1137—38 

Chinese, 575 

city confraternity and, 1254 

collegiah'ty in, 274-75 
collegiate bodies, 996, 998 

Confucian ethics «nd, 462 

defined, 231—32 



Patrimonialism (cont,y 

economy and, 240, 1090-99, 1 102-4 

want satisfaction, 1 1 1 1 
feudalism and, 264, 1070-1 1 ro 
armies, 1018, 1019 
church officials, 1035 
decentralization, 1058 
notables vs. local lords, 1059 
officialdom, 1035-37, 1088-90 
tradition, 1048—49 
fiefs in, 235-36 
labor and 
compulsory, 1282 
voluntary, 362 
law and, 643, 683 
codification, 853, 856-59 
contracts, 712, 724, 726, 728 
justices of the peace, 891 
notables, 876 

rationalization, 810, 811, 814 
restraint, 652 
limitation on authority in, 271 
oikos and, 383 
plebiscitary leader and, 269 
state, see State — patrimonial 
status honor and, 1068-69 
See oho Patrimonial domination 
Pavia (Italy), 1302 
Peasantry 

economic action of, 90 
feudal 

distribution of wealth, 1 100 , 

relationships, 1072 
hierocracy and, 1181-82 
imperialism and, 916, 917 
intellectualism and Russian, 506, 

507 
law and 

codifications, 849, S59 
natural law, 871 
patrician city and, 1289-90 
patrimonialism and 
decentralization, 1058 
notables, 1064 
religion of, 468-72 
magic, 482, 483 
orgies, 505 
sin, 1179 
status groups and, 936 
Peking (China), 1215 
Pennsylvania (U.S.), 542, 595 



Subject Index 



xlix 



Persepolis (Persia), izn 
Pergamon (Asia Minor), 1 366 
Persia 

bureaucratic secrecy in, 992 
centralization in modern, 973 
charismatic legitimation in, 1 147 
the city in, as fortress, 12*2 
collegiality in, 279 
hierocracyin 

caesaropapism, 1161, 117S. "?6 

Greet compared to, 1 1 60 
imperialism of, 914-16 
law in 

contracts, 696 

rationalization, 822-23, 831 
military discipline in, 1151 
otkos in, 38 1 
patrimonial 

decentralization, 1051, 1052, 1056 

disintegration, 1042 

monopolies, 1103 

notables, 1067 

officialdom, 1089 

state, 1014 
power prestige in, 9 1 2 
religion in, 416, 418 

congregations, 454, 455 

enlightenment, 516 

prophetic movement in, 442, 448 

See also; Mithraism; Zoroastrian- 
ism 
Perugia (Italy), 1305, 1306 
Petty-bourgeoisie, 986 
commercial spirit of, 1203 
hierocracy and, 1 180 

capitalism, 1194. ll 9& 

loans, 1190 
imperialism and, 921 
in parties, 1133 
patrimonialism and, 1091 
religion and, '5 1 1 

Christianity, 481-85, 486 

faith, 565 

intellectualism, 507-8 
Philippine Republic, 877 
Philosophy 
, GreeK, 502, 503 

ethicists, 445 

mystery religions, 567 

notables, 799 
religious roots of, 451 



Phoenicia, 11 80, 1226, 1230, 1240 
Piacenza (Italy), 1318 
Pisa (Italy), 1189, 1303 
Plebiscitary democracy, see Democracy 

— plebiscitary 
Podesti, 442, 1274-76, 1301, 1307. 

1318 
Poland, 1332 

agriculture in, 149 
Jeudal, 1070-71 
wealth, 1 100 
imperialism and, 913 
Jews in, 1203 
as nation, 924-25 
nationality, 396-97 
Polis, see City-state 

Political action, economic action com- 
pared to, 64-65 
Political authority 

appropriation of mining deposits by, 

147 
denned, 35 
exchange and, 329 
hierocracy and, 1158-1211 
caesaropapism, 1159-63 
compromise, 1173—76 
reelementation of conduct, 1 164- 
66 
law and, 35, 333, 643 
codifications, 856 
contracts, 711 

influence on formal aspects, 809 
legal norms, 332-33. 757 
money and, 336 
rationalization of, 1014 
profit-making and, 164 
religious community and, 455 
in Socialism and means of produc- 
tion, 334 : 
Political communities, see Political or- 
ganizations * 
Political groups, see Political organiza- 
tions 
Political organizations 

commercial classes and, 304 
defined, 54 

distribution of power in, 926-39 
economic order and, I93~94 
formative stages of, 904- 1 o 

pacification of population, 908-9 
warriors, 905-8 



INDEX 



Political organisations (cant.) 

imperialism and, 913-21 

law and 

contracts, 718, 729 
■ lawmaking and lawfinding, 653 
restraint, 652 

means of coercion of, 318 
use of force, 55 

in medieval plebeian city, 1307 

nation as, 921-26 

nature of, political communities in, 
901-4 

power prestige in, 910-13 

religion and 

brotherly love, 580 
privileged status, 598 

rise of, 13J2 -14 

role of ideas in, 1116 

the st3t» as, 54, 55; see aho State 

See aho Political authority 
olitics 

defined, 1399, 1414 

German party, 1 381-1469 
bureaucracy, 1393-95 
foreign policy, 1431-42 

influence of capitalism on, 9 1 9 

natural law and power, 874 

parliamentary, 1407— to 

religious ethics and, 590—602 
Polynesia, 432, 1092, 1153 
Portugal, 877 

Powers, division of, 1082—85 
Profit-making (Erwerben') 

in banks, 159-61 

capitalism oriented towards, 164-66 

concept and types cf , 9 1 - 1 00 

defined, 90-91, 207 

domination and, 164 

planned economy and, 1 r 1 

technology and, 67 
Proletariat 

ancient, 1341-41.. 1368-69 

Athenian democracy and, 152 

Bismarck and German, 1390--91 

bourgeoisie and, 1194 

bureaucracy and, 986 

hierocracy and, 1 194-96 

indispensability of. 991, 1003-4 

jury selection and, 892-93 

masteries? slavery of, 600 

naturallaw and, 872 



Proletariat (conO 

parliaments and, 296-97 
political organizations and 

imperialism, 921 

nation, 924 
Reformation and, 1197-98 
religion and 

indifference to, 484-86 

intellectualUm, 507-8 
status groups and, 932 
See also Workers 
Property 

bureaucracy and, 1402 
education, 1000 
office purchase, 966 
private property, 957 
capitalism and, 378-^0 
charisma and, 244, 245 

propertyless, 1114, 11 20 
the city and 

houses, i22t 

patriciate, 1231 

real estate law, 1237 
constitutional monarchy and, 1148 
denned, 44 
exchange and, 69, 75 
in households 

dissolution of household economy, 

joint property, 37°~74 

oikos, 381-83 
kin groups and, 366, 371 

protection, 336-37 
Jaw and 

contracts, 669-70, 690, 699, 703, 
712-13. 715. 7»8, 7%%-, 7*9~ 

3*. 73 8 

creativity, 894 

empirical, 787 

inviolability, 334, 642, 662, 663 

natural law, 869 

Roman law, 801 
laws, 380 

legal norms and communal, 777~?8 
legitimate domination and, 213 
ma rite t orientation and, 113 
means of production and, 93 
medieval p3eheian city and, 1303-5 
monopolies and, 639 
pafriarchalism and disposition of, 
5^07 



Subject Index 



U 



Property (cwtt.) 
patrimonialism and 
appropriation, 1041 
cofiective liability, 1024 
distribution, 1107 
division of land, 1 100 
economic stabilization, 1006 

notables r°$5. lo6 7 
tax-farming, 1045-46 
traditionalltptiniacy, ioacH-22 
political organizations and 
appropriated, 909 
power, 927-28, 930 
status groups, 932, 93^-37 
relations, city-states and, 1 362-63 
religious taboo and, 43 1_ 33 
Spartan communal, 1352-53 
as source of income, 204-5 
taxes, 351-51. 1455-56 
i, Se« also Economic action-^appropna- 
tion and 
{"rophets, 439-51 
charisnu of, 241-43. 4*5. 43?-4«t 

791, 1 106 
in Christianity, 440, 44 1 
defined, 439-4° 
economic support for, 245 
ethics and, 43$. 444-5° 

rationalization, 439 
lawgiver compared to, 442-44 
legal norms and, 7^8-75 
misfortune and, 437 
mystagogues compared to, 446-47 
mystery religions and, 44 J ~43 
priests vs., 452-68 
revelation of, 450-5 * 
Protestantism 
arts and, 610 
bourgeoisie and, 482 
capitalism and, 479, 587-88, 630 

profit, 1203-4 
congregations in, 455. 45 6 _ 
democracy and, 1204-10 
economy and 
ethics, 1 190 
usury, 583 
ethics of, 436, 1 190 
excommunication in, 1204-5 
filial piety in, 105° 
in Holland, 478-79 
intellectualism in, 514 



Protestantism (conO 

Islam compared to Puritan, 6*4, 6* 6 
Judaism compared to, 611— i*., 616, 

619-23, 1201-2 
hierocratic 

caesaropapism, 1161, 1174^-75 
social preconditions, 1178, "8a 
law in 

notables, 791 
rationalization, 814, 829 
magic eliminated by, 630 
masses and, 488 
nobility and, 473 
pastoral care in, 465 
patrimonialism and, 1063 
peasantry and 47 1 
politics and 

brotherly love, 593 
coercion of faithful, 594, 600 
just wars, 596 
preaching in, 464 
Reformation of , 1 196-1200 
reward in, 527 
salvation in 

asceticism, 540, 544, 555, 55^ 
confession, 562 
faith, 566, 569-71 
predestination, 522, 573~75 
sects and, 1204 
sexuality and, 605-6 
Prussia, 338, 475, 94<>> l 3*9t !399. 
1409, 1426 
bureaucracy in, 984 
army, 982, 3 3 8 9-9° 
collegiate bodies, 995 
notables, 974 

ruler's dependence, 994, 1004 
secrecy, 992 
collegiality in, 222, 280 
collegiate bodies, 995 
domination in, 945. 94^ 
feudal wealth in, 110° 
bierocracy in, H7 1 
law in 

codifications, 856-57, 859 
contracts, 694, 7 I2 > 744 
notables, 876, 889 
as nation, 922, 923 
nationality, 396 
parties in, and rule by notables, H31 



lit 



INDEX 



Prussia (cont.~) 

patrimonial decentralization in, 1051, 
1057-59 

religion and pious general* in, 476 
Psychology 

as basis fox Sociology, 19 

crowd, 23, 24 
Puerto Rico, 877 

Pure types, see Sociology — generaliza- 
tions in 

Race, see Ethnic groups — race mem- 
bership and 
Rationalism 

bureaucratic promotion of, 998, 

1002 
charisma and, 1 1 16—17 
economic action 

modes of orientation, 69—71 
typical measures, 71 -74 
religion and, 537"39 
bourgeoisie, 477-80 
Christianity, 5S4~55 
faith, 571 
Islam, 512, 574 
Judaism, 615—23 

lay, 4 6 7 

proletariat, 486 

universal gods, 418, 420 

warriors, 431 
Sociology and, 6-7 
Rationality 

action controlled by, 63-74, 34° 
of calculation, 107 
commercial, 1105 
formal 

bureaucracy, 225 

capital .accounting, 161-64 

defined, opposed to substantive 
rationality, 85-86 

economic order, 140 

enterprises, 161-64 

law, 656-57 

lytric policy, 183^ 184 

money calculations, 107-9, IJI 

plebiscitary regimes, 269 
instrumental 

associative relationships, 41 

defined, opposed to value-ration- 
ality, 24-26, 339, 1376 

in communist movements, 154 



Rationality (contS) 
in exchange, 328 
self-interest, 29-30 
social relationships, 28 
of law, 1 186 

of legitimate authority, 954 
of market regulation, 83-84 
of monetary accounting, 86-90 
substantive 

bureaucracy, 225, 226 
calculations in kind, 105 
defined, opposed to formal ration- 
ality, 851-86 
economic order, 140 
law, 656 

lytric policy, 183, 184 
money calculations, 107-9, IJI 
war economy, 106 
techniques and, 65-67 
of technology 
military, 1307 
modern, 436 
See also Value-rationality 
Rationalization 

affectual behavior and, 25 
capitalism and, 71 
deliberate adaptation and, 30 
of education, 1108 
of the factory, 1 1 56 
in Greece, 389 
hierccratic, 1178, 1192-93 
of law, 655, 691, 694, 695, 755-56, 
775-76, 883-85 
academic training, 789, 792 
charismatic, 11 16 
empirical training, 788 
formal, 809-38 
notables, 796-98, 801-2 
" Roman, 687-88 
substantive, 809-38 
of monasticism, 1168-70 
of parties, 1443-44 
of patrimonial economy, 1047 
of political authority, 1014 
in religion, 406, 538 
charity, 589 
economy, 585, 614 
fears, 617—19, 621 
metaphysical views. 426 
prayer, 423 
priesthood, 426-27 



Subject Index 



liii 



Rationalization (conO 
prophets, 439 
salvation, 536, 569 
sexuality, 607 
taboo, 432-35, 436 
worship, 410 
in Rome, 389-90 
of social action, 1333 
of traditionalism, 1116-17 
Rationally-controlled action QGesell- 
schaftshandeln), 1375-77. 1380 
economic action, 63—74 
in organized groups, 340 
Rechtsgenteinschaft, see Organized 

groups 
Regensburg (Germany), 1275 
Religion, 400-634, 1123, 1180 
character of Roman, 796-^97 
congregations and, 452-68 
4 economy and, 401, 405, 407, 411, 

413 
ethics in, see Ethics — religious 
ethnicity and, 390-91 
gods in 

anthropomorphic, 422—28 

ethical, 429—32, 520-21 

functional, 408—12 

incarnated, 488, 557-60 

inscrutable, 1 198—99 

internalized, 544-46, 548-50, 
588, 594 

Islamic, 416, 420, 518, 522 

monotheistic, 416-21, 449, 518 

omniscient, 522-23 
pajernal, 570-71 

personal, 568-72 

political and local gods, 413-16, 

, 59 .°. 
primitive, 403—4. 

transcendental, 462, 536, 552 

Western Christian, 460, 462, 468,' 

518, 590 

See also Allah; Brahma; Marduk; 

Yahweh 

legitimate order and, 33 

magic and, 422-39, 563 

coercion vs. sacrifice, 422—24 
origins of religious ethics, 432-33 
priests vs. magicians, 425-27 

origins of, 400-2:1 
ancestor cult, 412-13 



Religion (cowt.) 

naturalism, 404—8 
purpose of religious action, 401 
sout 404, 405 
spirits, 402-3 
symbolism, 404-8 
origins of modem natural law in, 

868 
pacification of population by, 908—9 
prophets of, see Prophets 
salvation, see Salvation religions 
as sanction of established order, 33 
social classes and, 468—500 
taboos and, 432-37 ■<■ 

See also Buddhism; Catholicism; 
Confucianism; Hinduism; Jain- 
ism; Lamaism, Mithraism; Prot- 
estantism; Shintoism; Taoism; 
Zoroastrianism 
ReUgionsgemeiiischaften (religious 

groups), see Religion. 
Religious groups, see Religion 
Representation, see Social relationships 

— representation in 
Respectability (Standessitte), legitimate 

order and, 34 
Rhodes (Greece), 1287 
Rita (divine force), 448 
Rome, 443 

agriculture in, 149 

appropriation of means of production 

in, J 34 
army in, 353 

bureaucratic, 970, 980, 981 
monetary disorders, 1 1 04 
voting, 1369-70 
bureaucracy in, 964, 1401 
army, 970, 980, 981 
collegiate bodies, 996, 997 
degree of bureaucratization, 592, 

969, 970-72, 975 
economic consequences, 990 
passive democratization, 986, 987 
physical coercion, 967-68 
tax-farming, 966 
burghers in, r23t , 
capitalism in, 164, 351 
law, 1464-65 
origin, 1203 
charisma in, 1 1 1 5 
education in, 1145 



liv 



INDEX 



Rome (jcontS) 

legitimation, 1159 
succession, 247, 253, 1024-2$, 
1 138, 1 1 39 
collegiality in, 272-74, 277-79, 2 ^2 

collegiate bodies, 996, 997 
domination in, 945, 955 
economic policies of, 1350, 1352, 

1353 
elections in, 1 1 29 
empire formation and, 1363, 1365, , 

1366 
extra-urban associations in, 1245, 

1246 
feudal, 262 

relationships, 1071 
financing in, 19S 
as fortress, 1224 
games in, 1 368 
hierocracy in 
caesaropapism, n 74, 1176, 1108 
secular powers, n 60 
social preconditions, r 1 77 
households in, 377 

oikos, 381 
industry in, 149 
Jews in, 1 203 

law in, 338, 562, 883-86, 976-78, 
1029 
capitalism, 1464-65 
charismatic, 1 1 1 5 
codifications, 840-43, 845, 849— 

55, 857-59, S6i, 865 
contracts, 674, 676, 678-94, 696- 
98, 701-4* 709-17, 721, 7*3- 

*9. 734> 736-42» 745. 749-51 
empirical training, 787, 788 
forms of legal action, 334 
jury selection, 892 
legal norms, 753, 754, 757, 763. 

767, 770-74, 77&-79! 78i, 

7?. 2 
legal rhcught, 656 
notables, 649, 792—802, 807-8 
private law, 646-47, 663 
procedure, 654 
property, 801 

public and private, 64;, 661 
rationality, 1186 
rationalization, 687-88, 810, 815, 



Rome (comO 

816, 819, 820, 824, 828, 830, 

833 
restraint on power, 652, 666 
status of persons, 1238, 1262 
tort, 6 jo 

lower social classes in, 1343-49 

marriage in, 373, 374 

military discipline in, 1152, 1:54, 

U55 
money tn, 160 

nobility in, 472 

armies, 1015, 1072 

charismatic succession, 1139 

d&classi, 1341 

origins, 554 
patriarchal, 1007—8 
patrician, 1278, 1281, 1284-87, 
1291, 1292 

association of warriors, 1286, 1287 

economic character, 1295, 1296 
patrimonial, ion, 1012, 1047 

armies, 1015, roig, 1020 

decentralization, 1654, 105;, 1057 

disintegration, 1043, 1044 

duties, 1046 

finances, n 04 

liturgy, 1023 

monopolies, 1097, 1103 

notables, 1061 

recruitment, 228 

ruling stratum, 1 366-67 

state, 1013, 1014 
pleisin, 1308-11, 1313 
political organization in 

imperialism, 914—17 

power prestige, 912 
rationalization in, 389-90 
religions in, 408-10, 412 

bureaucracy, 476 

character, 796-97 

ethics, 438 

holy wars, 475 
■ intellectualism, 500 

lower classes, 48 1 

nobility, 472 

office holding, 415 

patriarchalism, 413 

peasantry, 469 

women, 489 



Subject Index 



Iv 



Rome (cont.) 

slavery in, 127, 133, 163, 382, 692- 

93. '357. I3S9 
social dictatorship in, 270 
status in 

honor, 937 

structure, 1356-58 
territorial organization in, 1313 
traditional authority in, 239 
tyrannis in, 1316, 1317 
urban economy in, 1219 
Venice and, 1268, 1269 
want satisfaction in, 350, 353 
as warrior guild, 1360, 1361, 1363 
Rumania, 877 

Russia, 115, 1461, 1465, 1467 
agriculture in, 148, 149 
appropriation of means of production 

in, 136 
bureaucracy in 

collegiate bodies, 995 

officials, 960 

ruler's dependence, 993 
capitalism in, 1095 
charisma in, 250 

legitimation, 1159 
the city in 

commune, 1 228 ■* 

confraternity, 1257 

fortress, 1223 

law, 1 227 

legal status of persons, 1237-38, 

she, 1213 
collegiality in, 274, 278, 280 

collegiate bodies, 995 
destruction of nobility it., 985, 

1066-67 
domination in, 943 
economic relationships in 09°5;> 

348 
feudal wealth in, 1101, 1102 
Foreign policy in, 1440 
Germany and, 1435 
hierocracy in 
caesaropapisr*, 1.161, 1173-74, 

1 192, 1 2 10 
economy, 1 183 
monasticism, 513, 1 167, 1 168, 

1171 
rationalization, 1 193 



Russia (cont,) 

imperialism of, 913—15 
law in 

codifications, 840, 855, 858-60 

contracts, 695, 723, 725, 726 

joint property, 373 

legal norms, 338, 772, 784 

natural law, 871—72 

rationalization, 827, 831 
monarchy in, 1405-6 
monasricism in, 517, 1167, 1171 

Josephite reform movement, 513, 
1168 
money and, 177 

monetary policy, 184-86, 192 
as nation, 922-25 

nationality, 396 
parties in, 288 
patriarchal, 1008 
patrimonial, 1045 

decentralization, 1052 

devotion to authority, 1 108 

notables, 1061, 1064-68 
religion in, 406 

confession, 561 

intellectualism, 506, 507, 5 1 3, 
516-18 

passivity to politics, 595 

peasantry, 469, 471, 485 

relics, 417 
revolutions in 

(1905), S72 

C1917), 266 
serfdom in, 127 
s.;\ual relationships in, 364 
sfovery in, 163 
ivaditional authority in, 239 
Mifa-ec labor in, 382, 383 

Sacrifice 

as coercion of gods, 4^2 

h>' T)fl«, 401 

as tri'mie, 423-24 
inivaLion, 441, 526-76 

■iscetJCiaiTi as, 541-44 
mysticism, 544—5! 

in Brahmanism, 440 

in Buddhism, 461-6^, 567-68, 627 

iti Christianity, 531-32, 540-41, 

558, 565-68, 572 
decline of nobility and, 503-v 



1 

J 



I VI 



INDEX 



Salvation (conf.) 

devolution in, 486-88 

ethics and, 437—39, 601 

holy wars and, 475, 476 

intellectual ism and, 500-18 

in Islam, 625 

Judaism and Hinduism and, 493— 

99 . 
legitimation vs. compensation in, 

490—92 

monasticism and, 539—40 

monotheism and, 416, 420 

mystagogues and, 447, 453 

occidental compared to oriental, 

551-56 

origins of, 40 1 

Orphism as doctrine of, 442 

prophets of, 445 

exemplary, 447-48 

in Protestantism, 630 

rejection of magic and, 457 

ways to • 

faith, 563-72 

god and world, 526-29 

good works, 53^-34 

grace and incarnation, 557-63 

orgies, 535"39 

predestination, 572-76 

ritual, 529-32 

self-perfection, 534-38 

Scodand, 473. 5*5, 855 

Sects 

the church compared to, 56, 1 164 

democracy and, 1204— jo 

distinctive trait of, 456 

economy and, 582 

in India 

importance, 386 

pariah, 131, 493 

sexuality and, 602, 610 

Selection, social, 38-39; see also 

Social relationships 

Serbia, 925 

Croatia compared to, 395 

Sexuality 

in Hinduism, 571-72, 602, 604, 

606, 61 1 

Pauline doctrine and, 510-n 

refinement of, 505 

religious ethics and, 602-7, 610, 

Sn, 620 



Sexuality (eortt.) 

orgy vs. chastity, 602-4 
salvation vs. sexuality, 601 
See also Orgies 
Sexual relations 

in households, 363-65 

family, 356-58 
kin groups and, 365-66 
law and 

contracts, 687-91, 742-43 
incest, 8 1 5 
men's houses and, 906—7 
military discipline and, 1 1 53 
patriarchalism and, 386, 1009 
race membership and, 385-86 
religion and 

salvation, 571-72 
taboo, 434, 435 
in social groups, 345, 354 

nobility, 690, 743 
See also Sexuality 
Sheik id-Islam, 1017, 1192 
Shintoism, 426 
Siam, 8 1 7 

Sicily, 201, 1316, 1322, 1323, 1363 
collegiality in, 281 
financing in, 195 
property responsibility in, 378 
slavery in, 382 
Siena (Italy), 1224, 1233, 1302 

confraternity in, 1242 * 

Signotia, 1317—22 
Silesia 

nationality and Poles in, 396 
unfree labor in, 382 
Sitte, see Custom 

Social action (Gemeinschaftshandeln, 
soaaies Handeln) 
bureaucracy and, 987 
collective, 319, 1375, 1377; see oho 

Social groups 
defined, 4, 22-24, 57. 1375-77 
crowd psychology, 23, 24 
imitation, 23-24 
domination in, 941 
empirical uniformities in, 29—3 1 
fashion, 29 
self-interest, 29-31 
usage, 29-3 1 
See also Custom 
ethnicity and, 394 



~\ 



Subject Index 



Iv 



tt 



Social action (cont.) 
economy and factors defining, 333, 

340-41 
households as, 363, 364 
kin groups and, 365 
law and, 311 

legal norms, 755 
legitimate order and, 31—38 
market, 635-36 
nationality and, 395 
neighborhood and, 361—62 
of parties, 938-39 
of political communities, 901—4 
race identity and, 385 
regulated, 330 
religion as, 400 
social groups and, 344-46, 348; see 

also Social groups 
traditionalism and, 316—27 
types of, 24-26, 1375-80 

idea], 20-21 
validity of, 331 
See also Economic action 
Social classes 

administration of, 194 
bureaucracy and 

leveling of differences, 983-87, 
1081 

rigidity, 1402 
commercial, 304 

market economy, 306 

merchants, 477—79, 630 

merchant guilds, 587 

Jatririate, 477-78 
ned, 302 
divergent interests of, 337 
exploitation and, 581-83 
financing of, 197 
Justice and, 886, 894 
law and 

codifications, 848-50, 862 

contracts, 699 
legitimate authority and, 953-54 
lower, 481, 488 

ancient, 1340—50, 1354—59 
natural law ideology and, 867, 871- 

73 . 
occupational structure and, 141 
perpetuation of, in Christianity, 

599-600 



Social classes (cent.) 
in political organizations 
distribution of power, 926—31, 

938-39 
types of class struggle, 930-32 
property and, 303-4, 307 
religion and, 468, 500 

religious movements, 11 80 
stratification of, 443, 478, 479 
status groups and, 307 
See aUo Bourgeoisie; Nobility; Peas- 
antry; Petty -bourgeoisie; Pro- 
letariat 
Social groups (GemeinschafO 
ethnicity and, 392 
legal order and, 334 
organized, 339~55 

open and closed, 341-43 
structures, 344-48 
want satisfaction, 348-54, 356 
Taoist priests as, 429 
totemism and, 433, 434 
See also Clans; Ethnic groups; 
Guilds; Households; Neighbor- 
hood groups; Organized groups; 
Social classes; Social relation- 
ships; Status groups 
Socialism 

accounting in kind and, 103-5- 
Bismarckand, 1390—91 
bureaucracy of, 223-25 
conflicting forms of, 112 
contractual law and, 730, 731 
control-and-disposal in, 67-68 
credit and, 81 
economy under, 18, 302-3 
expropriation of workers and, 1 39 
faith in, 515 

fundamental problem for, in 
money under, 79-80, 172 
natural law and, 873-74 
patriarchal, 931 
personal property tax and, 352 
political authority and means of pro- 
duction in, 334 
religion and, 471 
socialization under, 199 
state, 74, 919-20, 1 102 
substantive rationality in, 86 
workers under, 515 



Iv 



It J 



INDEX 



Socialism (co»t.) 
Soda! relationships 
altering of, 39-40 
associative 

defined, 40-41, 1376-77, 1379 
factors influencing, 43 
legal order and, 313 
patrimonialism and, 643 
closed, 341—43 
defined, 43 
examples, 44-45 
monopolized advantages, 43-44 
motives for closure, 46 
communal 
defined, 40, 60 
factors influencing, 41-43, 44 
overarching, 346 
competition in 
defined, 38-39 
market participation, 43 
concept of, 26-28 

defined, 16-27, 3^-39 
economic action and, 68 
feudal, 1070—73 
legitimate domination and, 2 1 5 
in legitimate order, 30 
mutual responsibility in, 46-48 
open 

defined, 43 

examples, 44—4;, 341—43 
representation in, 46-48 
social selection and, defined, 38-39 
See aho Economic relationships; Sex- 
ual relationships 
Soziales Hantteln, see Social action 
Sociology 
categories of economic action and, 

63-211 
charisma and, 1 r 12 
city as defined by, 1 2 1 2 
central subject matter of, 24 
the. church and sect compared in, 

1 164 
collectivities and, 13-15 
compared to other sciences, 4, 14, 19 
convention and, 325-27 
defined, 4, 8, 57 
domination and 
definition, 946-48 
structure, 953 
empiricism and, 332-33 



Sociology (con*.) 
ethics and, 325 
ethnicity and, 394-95 
generalizations in, 18-22 

ideal (pure) types in, 2t>-2t, 57 
theoretical analysis, 20-22 
History compared to, 4, 29 
of law, 641-900 
legal order and, 325-27, 329 
market and, 635 

methodological foundations of, 4-22 
causal interpretation, 11-12 
instinctual and mechanical factors, 

17-18 
interpretation, 5-6, 57 
meaning, 4-5, 7, 57 
motivation, 8-n, j8 
rationalistic basis, 6-7 
subjective interpretation, 13-14 
uniformities, 12-13 
understanding, 8-9, 57 
verification of interpretation, 10- 
ri 
organic, 14—15 
political communities and, 903 

legitimacy, 904 
of religion, 399—634 
sects defined in, 1204 
social action and, 1375 
the state and, t3~t4 
terminology of, 3-4 
Spain 
feudal 

economic stabilization, 1097 
wealth, 1 102 
financing in, 199 
hierocracy in, and rationalization, 

ri93 
imperialism of, 9 1 7 
Jews in Arabian, 1 203 
law in 

codifications, 851, 855, 877 
contracts, 709, 741 
medieval plebeian city in 
autonomous law, 1325 
political autonomy, 1323 
as nation, 924 
patrimonial 

decentralization, 1054 
S-praehgemeinschaft, see Nation— lan- 
guage groups and 



wmrnpmmfgmm 



Subject Index 



I 



tx 



Spana, ^j"4, <,oy, ijt6 
armies of, 1019 

charismatic comma ni-vsr, in, 1 s/.o 
coilegialitv in, 277 
communal property in, 1351—53 
domination in, 949 
economic policies in, 1351, 1253 
ephoisin 

medieval plebeian city compared 
with, 1309-n, 1337 

military commander, 1 364 
feudal, 262 

games, 1106 

status honor, noj 

relationships, 107? 
games in, 1106, 1368 
as garrison town, 1221 
men's houses in, 371 
military discipline in, 1149, 1152— 

54 
patrician, 1291, 1292 

association of warriors, 1287 
kingship, 1285 
religion in 

heroism, 533, 534 
manipulation of omens, 429 
as warrior guild, 1287, 1359, 1360 
Special laws, see Law — contracts and 
Stwtsanstah, see State 
Standiscke Herrschaft, see Domination 

— estate- type 
State 

administration of, 331, 905 

law, 641, 644-45, 661-63 
bureaucratic, 221-23, 956~57t 1402 
army, 980-82 
collegiate bodies, 997 
degree of bureaucratization, 969, 

972 
depersonalization, 998 
economy, 74, 75, 336-37. '453. 

■454 
increasing costs, 983-84 
indispensability, 991 
modern, 1394 
objectivity, 979 
political officials, 959 

rationalization of factory, 1 156 
caesaropapism and, 1162 
capitalism, 351 
protection, 354 



disnMJia and 

siwcosiion, l 1 16 

irsiisfer.iat.oE, j 1 33-39 
coerciveness of organization*, and, 

31S 
collegiality in, 278, 280 

collegiate bodies, 997 
communism, 74 
as compulsory organization, 52 
defined, 56, 65 

depersonalization of, 600—3, 99^ 
early Christian sufferance of, 596— 

97 
economy and, 74, 75, 328-29, 336- 
37, 1022, 1094-99, 1453, 1454 
fallacy of corporate, 1395-99 
feudal, charismatic succession and, 

1126 
filial piety and, 377 
financing of, 195, 197 
functions of, 905 
German 

need to end, 1439 

postwar reconstruction, 1459-62 
inflation and, 186-87, 190, 193 
laissez-faire 

division of labor, 123 

function, 160 
law and 

administration, 641, 644—45, 661— 

codifications, 840 
coercion, 314—15 
contracts, 695, 699, 705, 7to— 12, 

715, 7M. 747 

ecclesiastical law, 316 

economy, 336-37 

economic organizations, 328-29 

enforcement, 35 

legal order, 904 

legal norms, 756 

legal relationships, 319 

limitations, 317 

natural law, 870—71 
rationalization, 810-1 1, 828 

source of legitimacy, 666 
medieval plebeian city and, 1321- 

22, 1325 
money and 

guarantee, 336 



Ix 



INDEX 



State (cont.*) 

monetary system, 166-74 
monetary theory, 184-93 
monotheism and Egyptian, 430 
national policies and, 1383 
nationality and, 39;, 397-98 
origins of modem Western, 259 
parliamentary, 1396 

monarchy; 1405-6 
patrimonial, 1013— 15, 1019 
charismatic succession, 112,6 
decentralization, 1040-41, 105 1— 

59 

defenses against disintegration, 
1 04 2—44 

economic effects, 1094-99 

education, 1090 

historical examples, 1044—51 

medieval plebeian city and, 1325 

predecessor of modem state, 1054 

primogeniture, 1137-38 

want satisfaction, 102.2 

welfare, 1107 
political communities and, 902-4 
as political organization, 54, 55 
religion and, 503 

support, 543-44 

vengeance, 580 
Socialism, 74, 919-20, 1102 
social relationships and, 27, 28, 40 
Sociology and, 13—14 
totalitarian, 661-62, 644 
See also City-state; Clan-state 
Status and status situation (stondtsclte 
Lage') 
bureaucracy and, 567 

bureaucratic officials, 959-63 

leveling, 225-26 
defined, 305-6 
feudal games and, 1 106 
honor and 

armies, 1 1 04 
. bureaucratic leveling, 975 

charisma, 251—54 

compared to ethnic honor, 390, 

discipline, 1 149 
feudal, 1072, 1104, 1105 
justices of the peace, 1060--61 
patrimonialism and, 1068—69 



Status and status situation (coMt.) 

in political organizations, 932-33, 

937 

power position, 1081 
legal 

norms, 697-98 

persons in city, 1236-41, 1245 
physical coercion vs., 967-68 
political organizations and, 598, 

932-33. 937 
routinization of charisma and, 251- 

54 
structure, in ciiy-states, 1354-59 
Status groups (Sffiwie) 
bureaucracy and, 1 00 1 

economic consequences, 990 

leveling of honor, 975 
burghers "i, 1240 
cont "x,ual law and, 695 
convention and, 324 
defined, 306-7 

estate-type domination and, 232-33 
financing of, 197 
formation of, 265 
honor and, see Status — honor and 
knightly, 255 
limits on authority of, 271, 273, 

275-76 
market and, 638-39 
medieval plebeian city and, 1326 

distribution of power, 1304-7 
of notables, 291 

occupational structure and, 141 
parliaments and established, 297 
parties for, 285 
patrimonialism and 

Chinese Empire, 1049-50 

officials, 1026 
in political organizations 

economic conditions, 936—39 

ethnic segregation, 933-35 

honor, 932-33, 937 

power, 927, 930,931 

privileges, 935-36 
religion and, 468-80 

taboo, 433 

virtuosi, 539 
salvation religions and high, 502-3 
sexual relations and, 386 
traditional authority and, 230 



Subject Index 



I 



XI 



Strassburg ( Alsace), 1307 

Sultanism, as traditional authority, 231, 

232 
Sumeria, 1 180 
Sweden, 769, 910 
Switzerland, 1202, 1422 
collegiality in, 274, 276, 279 
.domination in, 948, 949 
household communism in, 359, 360 
law in, 886 _ 
codifications, 863, 877 
contracts, 738 
military discipline in, 1151, 1152 
monetary policy of, 184 
as nation, 922 

nationality, 395, 397 
political organization in, 91 1 
imperialism, 921 
mercenaries, 908 
neutralization, 910 
1 property taxes in, 1455-56 
religion in, 468 
See also specific Swiss cities 
Symbolism, see Religion — origins of 
Syracuse (Sicily), 1316* 
Syria, 827, 1203 
burghers in, 1230 
city commune in, 1226 
city as fortress in, 1 223 

Taboos 

casuistical systems of, 61 1 

religious, 43*~37> 4*>i 

caste, 435, 436, 482, 487, 520 
economic privilege, 432, 436, 481 
scriptures, 459 
Tao, 448, 553, 629 
Taoism, 453, 478, 555, 629 

charismatic succession in, 253 

cosmos in, 43 1 

iotellectualism in, 502, 506 

Iaw«f, 40$ 

masses and, 488 

mystagogues in, 447 

priests cf, 429 

theism of, 518 
Tarsus (Asia Minor), 510 
Tashi Lama, 267, 555 
Tax-farming, 965, 966, 1045-46 
Techniques 

defined, 65, 206 



Techniques (contS) 

economy compared to, 65-66 

rational, 65-67 
Technology 

level of, and labor, 70 

oiJtos and, 381 

polygamy and primitive, 688 

profit-making and, 67 

rational 

military, 1307 
modern, 436 

See also Techniques 
Thailand, 877 
Thebes (Greece), 1359 
Thorn (Poland), 1 100 
Tibet, 1171, 1181, 1193 
Tiryns (Greece), 1282 
Trade 

concept of, t5o— 57 

contractual law and, 68 1, 684 

hierocran'c domination and, 1183-85 

impact of, on patrimonialism, 1092- 
94, 1 104 

principal forms of, 1 5 7-6 1 
Trade unions 

Bismarck and German, 1390-91 

collegiality in, 276 

establishment of, 1 396 

propaganda purposes of, 347—48 
Traditional authority 

charisma opposed by, 244 

defined, 215-16 

economy and, 237-41 

elementary types of, 231-35 

legal norms and, 230 

other authorities combined with, 
262-66 

patrimonial maintenance by, 235-36 

plebiscitary leader and, 269 

pure type of, 226—3 J 
bureaucracy, 229 
defined, 226-27 
Traditionalism 

as basis for legitimate authority, 954 

as basis for legitimate order, 36—37 

charisma and, 1 1 1 6 
authority, 245, 247 
compared, n 22 

convention and, 326 

deterioration of, 337 



Ixii 



INDEX 



Traditionalism (cowf.) 
economy and 

exchange, 73 

priesthood, 58 j 
feudal, 1048-49, noi 
khadi justice and, 976 
in labor, 71 
law and 

Islam, 820 

legal norms, 327 

legal profession, 788, 790 

notables, 882 
market and, 82 
for notables, 1009 
organizations and, 49 
patriarchal, 1008—9 
patrimonial, ion— 12 

armies, 1015 

economic stabilization, 1094—95 

feudalism, 1048—49 

legitimation, 1020-22 

officials, 1038 
rationalised, 116—17 
religions and 

popular, 629 

Hinduism, 561 

Jewish ethics, 614, 621 

law, 456 

masses, 469 
as social action, 24, 25, 326-27 
See also Traditional authority 
Troy (Asia Minor), 1283 
Tunisia, 823, 978 
Turkey 
feudal, 260, 261 

fiefs and benefices, 1074-76, 

1077 

legitimation, 1079, 1080, 1081 

patrimonial officialdom, 1089 

relationships, 1072, 1073 

wealth, 1 ro2 
hierocracy in, and caesaropapism, 

1161 
law in 

codifications, 877 

rationalization, 820 
patrimonial 

armies, 1015, 1016, 1017 

offices, 1025-26 
traditional authority in, 236 
Tyre (Phoenicia), 1230 



Understanding (yerstehtn}, 8-9, 57; 
see ako Sociology — methodo- 
logical founds dons 
United States 
agriculture in, 149 
bureaucracy in, 958 

degree of bureaucratization, 971, 
984 

economic consequences, 989 

education, 999 

elected officials in, 267, 269, 270, 
960, 1450, 1452-55, 1457, 
1458, 1460 
caesarist features in, 141 5 
charisma in, 254 

succession, 1 139 
collegiality in, 284 
domination in 

administration, 948, 949 

economic, 94S-47 
democracy in 

elections, n 27, 11 29 

immediate democracy, 290, 291 

representative, 1128 
ethnicity in, 393 
foreign policy in, 1440 
economy and, 582, 945~47» 980 

consumer interests, 352 

inflationary policy, 183, 18$ 
* Jews in, 618 
law in, 316, 318, 338,665 

codifications, 842, 863-64 

contemporary, 889-92, 900 

contracts, 69i t 692, 732, 747 

empirical training, 787 

formal, 271 

natural law, 869, 879 

notables, 805, 875 

particularism, 896 
lower class in, 1341 
military discipline in, 1156 
as nation, 922-24 
nationality in 

French Canadians and, 397 

German- Americans, 388 
parochial school subsidies in, 1 196 
parties in, 287, 1396, 1400, 1401, 

1447 
bosses, 1131 
bureaucratization, 1133 
ideology, 345-46 



Subject Index 



I 



xt J i 



United States (cont.') 

job patronage, 1397-98 
sponsors, 1 1 32 
political organization in, 914 
imperialism, 921 
power, 932, 933, 936 
property taxes in, 1455 
racial antipathy in, 386, 391 
Negroes, 386-87, 391, 392 
- religion in 

sntellectualism, 514 
Protestantism, 1206-8 
slavery in, 133, :6j, 304 
Usury, 578, 583-89 
Utah (United States), 1169 
Utility concept, 68-69 

Value-rationality 
in action, 24-26 
associative relationships and, 41 
. bases for legitimate order and, 33, 
36 
communist movements and, 154 
legal norms and, 2 1 7 
natural law and, 37 
organizations and, 49 
in parties, 285 
Venice (Italy), 949, 972, 1035, 1104, 
1 149, 1225, 1341, 1362 
coliegiality in, 274, 277. 279 
collegiate bodies, 996, 997 
medieval plebeian, 1304, 131°, 

1319. i3"> 1323 
patrician, 1267-73, I2 9 ! ; i 2 9 2 
economic character, 1 296 
Verbande, see Organizations 
Vergemeinschaftvng, see Social rela- 

ships — communal 
Vergesellsckaftung, see Social relation- 
ships^ — associative 
Verona (Italy), 1190, 1302, 1318 
Vers te hen, see Understanding 
Vienna, 1017 
Voluntary association (Verein), 52-53 

Want satisfaction, 348-50, 1022, mi 
capitalism, mercantilism and, 351- 

54 
communist, 1 1 19-20 
in planned vs. market economies, 

109-13 



War 

Bismarck and, 1426 
bureaucratization of, 981 
charisma and 

armies, 1 1 17—18 

transformation, 1134 

warlords, 1 142-4;; 
city-states and, 1362- 63 
dance, 407 

domination in, and age bias, 950-51 
economic system and, 70, 106 
feudal relationships and, 10 17 
in formative stages of political or- 
ganizations, 905-8 
gods, 532, 590 

19th-century China, 416, 475 
holy, 473-75 

heroic death, 591 

Islamic aggrandizement and spoils, 
624 

salvation, 573 
imperialism and, 917-18, 920 
knightly, 1285 
legal norms and, 771-72 
market freedom and, 84 
military discipline and, 1150-55 
nationalism and, 926 
parliamentary committees and, 

1420-24 
of peasants (1524-25), in Germany, 

469 
religion and 

booty and taboo, 432-33 

just and unjust wars, 595-96 
Russo-Japanese, 429 
Samnite, 1285 
Yahweh and, 591 
Wealth (Verwwgew) 

appropriation of, 133-34 
burgher, in city-states, 1363 
capitalist employment of, 634 
control of managerial positions and, 

1 39-40 
defined, 87, 89 
feudal 

formation and distribution, 1099- 

1 102 
tax, 1094-96 
households and, 376-77 
money and national, 105 
nobility and, 581 



Ix 



IV 



INDEX 



Wealth (Vermogett) (coni.) 
patrimonial, 1102 
religions and 

highest reward, 527 
Islam, 624, 625 
Jesus and, 632 
Judaism and, 61 r, 612 
Wiesbaden (Germany), 1216 
Wirtschaften, see Economic action 
Wirtschaftverbande, see Economic or- 
ganizations 
Work, see Labor 
Workers 

appropriation of, 146-48 

division of labor, 125-30 
capirafism and masterless slavery of, 

11S6 
contractual law and, 729—30 
domination of, 73, 944-45 
control, 348, 1394 
patrimonial, ioio~n 
expropriation of 
households, 142 
means of production, 137-40 
socialism, 139 
labor productivity and, 150-53 
money earned by, 96 
occupational positions of, 141-43 
oi'Aosand, 382 
productive means appropriated by, 

130-31- 133-34 
rejection of god-idea by German, 

519 
socialism and, 139, 515 
Working class, see Proletariat 



Yabweh, 620, 1 179, 1202 
faith and, 568, 570 
holy wars and, 473-74 
as inferior god, 557 
legal norms and, 758 
messiahs and, 469 
mutual responsibility and, 47 
persecution of Jews and, 428, 493 
as political god, 413-1 5, 419-20 
promises of 

economic morality, 494, 615 

resentment, 497, 498 
rain and, 449 
as ruler, 450 
vengeance and, 600 
war and, 591 
Yugoslavia, 756, 777 

Zoroastrianism 

congregations in, 455 
dogma in, 462 
dualism exposed in, 523 
exclusiveness of, 1205 
economy and 

truthfulness, 579 

vengeance, 580 
intellectualism in, 501 
law in, 822 

rationalization, 823 
merchants and, 479 * 

monotheism of, 420 
peasantry and, 470 
salvation in, and good works, 533 
sexuality and women in, 605 
social preconditions for, 1 1 77 
Zurich (Switzerland), 268, 1301 



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